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Learning Objectives
• Explore what strict liability is and when it applies.
• Understand how a product may be unreasonably dangerous, triggering strict liability.
• Learn about how a product’s warnings and labels are a part of a product’s safe design.
• Examine defenses available to strict product liability.
Intentional torts require some level of intent to be committed, such as the intent to batter someone. Negligence torts don’t require intent to harm but require some level of carelessness or neglect. Strict liability torts require neither intent nor carelessness. In fact, if strict liability applies, it is irrelevant how carelessly, or how carefully, the defendant acted. It doesn’t matter if the defendant took every precaution to avoid harm—if someone is harmed in a situation where strict liability applies, then the defendant is liable.
Since this rule can have harsh consequences, it applies in a only few limited circumstances. One of those circumstances is when the defendant is engaged in an ultrahazardous activity. An ultrahazardous activity is one that is so inherently dangerous that the risk to human life is great if anything wrong happens, so the person carrying out the ultrahazardous activity is held strictly liable for those activities. Transporting dangerous chemicals or nuclear waste, for example, is inherently dangerous. If the chemicals spill, it is very difficult, if not impossible, to prevent injury to property or persons. Similarly, businesses that use dynamite, such as building demolition crews, run the risk that no matter how careful they are, people or property could be damaged by intentionally igniting dynamite. Therefore, strict liability applies.
Strict liability also applies when restaurants, bars, and taverns serve alcohol to minors or visibly intoxicated persons. This activity is dangerous, and there is a high risk of probability that these patrons, if they drive, will injure others. Many states have dram shop acts that impose strict liability in this circumstance.
You might wonder why defendants are held strictly liable if they are acting reasonably or are even being ultracautious. As with most issues in law, the answer lies in social policy. In essence, strict liability torts exist because businesses that engage in covered activities (such as transporting hazardous chemicals or operating bars) profit from those activities. They are also in the best position to ensure that every precaution can be taken to avoid an unexpected event, which may have catastrophic consequences. Victims of these events are often innocent members of the public who are not in any position to avoid being injured and therefore should not be denied a legal remedy simply because the defendant took prudent precautions. This social policy concern is also expressed in the most important area of strict liability application, strict product liability.
In strict product liability, any retailer, wholesaler, or manufacturer that sells an unreasonably dangerous product is strictly liable. For example, Toyota recently disclosed that it had manufactured and sold several vehicle models with faulty accelerators, leading to several cases of unintended acceleration and subsequent deaths. Vehicles that accelerate unintentionally are clearly unreasonably dangerous. In this case, the manufacturer (Toyota Japan), the wholesaler or importer (Toyota’s U.S. sales company), and the retailer (local dealers) are all strictly liable for injuries caused by these faulty accelerators. Note, however, that strict liability applies only to commercial sellers. If a private citizen sold his or her Toyota on Craigslist, for example, he or she would not be strictly liable for selling an unreasonably dangerous product.
To demonstrate that a product is unreasonably dangerous, plaintiffs have two theories available to them. First, they might allege that the product was defective because of a flaw in the manufacturing process. Under this theory, the vast majority of products being produced turn out fine, but due to some sort of production defect, a few samples or a batch turns out defective. If these defective samples are sold to the public, the manufacturer or seller is strictly liable. A light bulb factory that manufactures a million safe light bulbs, for example, and then manufacturers one that explodes when it is turned on due to some production defect, is strictly liable for the injuries caused. Similarly, a frozen pizza factory that produces thousands of pizzas without any trouble would be strictly liable if one frozen pizza is produced that contains foreign contaminants because of a production defect such as an inattentive worker or machine breakdown.
Second, a product may be defective because of a design defect. Here, there is nothing wrong with the manufacturing or production of the product. Rather, the product is defective because it was designed incorrectly or in a manner that causes the product to be unreasonably dangerous. Engineers continually work to design products to be as safe as possible, but in some cases, the product is nonetheless dangerous, and the manufacturer or seller is strictly liable. For example, starting in 1991 several Boeing 737 jetliners began experiencing unexpected movement in the rudder, leading to several high-profile crashes including a USAir flight in Pittsburgh that killed 132 people.“When Jets Crash: How Boeing Fights to Limit Liability,” Seattle Times, October 30, 1996, seattletimes.nwsource.com/news/local/737/part04 (accessed September 27, 2010). During the course of investigation, the government discovered that the part that controls the rudder gets very cold in flight, and when it is injected with hot hydraulic fluid, the part can jam and move the rudder in the opposite direction of what the pilot is calling for. This design defect was eventually fixed by upgrading the rudder control systems on all existing Boeing 737s worldwide.
Hyperlink: What's Wrong with the Tire?
www.time.com/time/business/article/0,8599,128198,00.html
In 1999 Ford customers in the Middle East began experiencing tread separation problems on Ford Explorer SUVs. The tires would disintegrate, leading to a loss of control and often a rollover crash. The company initially believed that the problem was limited to the Middle East because of unique characteristics there such as extremely hot weather, lowered tire inflation pressures for driving in sand, and harsh operating environments. Soon, however, vehicles in the United States, especially in hotter regions of the country, began experiencing the same problems. The death toll mounted to over 170 deaths and over 700 injuries from these accidents. Ford’s investigation led the company to believe that certain fifteen-inch tires manufactured by Firestone were to blame; virtually all the accidents involved Firestone tires manufactured in one plant in Decatur, Illinois (now closed). Similar vehicles equipped with Goodyear tires rarely experienced tread separation problems. Firestone, on the other hand, blamed the Ford Explorer for being defectively designed. Firestone argued that the Explorer lacked critical safety features to lower the center of gravity, reduce the propensity to roll over, and lessen the chance of underinflating the tires. Firestone pointed out that the same tires did not experience any problems when installed on GM vehicles. Whether the fault lay with a production defect in Firestone tires or design defect in Ford Explorers, both companies were strictly liable. Ford spent over \$3 billion recalling the tires and ended its one-hundred-year relationship with Firestone. Congress also responded, passing a federal law requiring all vehicles to be equipped with tire pressure monitoring systems.
Many product liability cases arise from the defective design theory because courts have held that the warning labels on products, as well as accompanying literature, are all part of a product’s design. A product that might be dangerous if used in a particular way, therefore, must have a warning label or other caution on it, so that consumers are aware of the risk posed by that product. Manufacturers must warn against a wide variety of possible dangers from using their products, as long as the injury is foreseeable. If consumer misuse is foreseeable, manufacturers must warn against that misuse as well. For these reasons, window blinds come with warnings about choking hazards posed by the rope used to raise and lower them, and hair dryers come with warnings about operating them in bathtubs and showers.
While you may think that these warnings are a little silly, keep in mind that products can harm or kill people who don’t know how to use them correctly. For example, in one case, a woman traveling in the passenger seat of a GM SUV was killed in a low-speed collision in a parking lot when airbags deployed in a collision. The woman was killed because her seat was reclined and rather than being restrained by the seat and seatbelt, she “submarined” underneath the seat belt and hit the deploying airbag. When her family sued GM, the company argued that seats and seatbelts work only when the seat is in an upright position and that the owner’s manual warns not to recline the seat when the vehicle is in motion. The family argued successfully that this warning was not clear and conspicuous enough, and that as a result, many people travel with their seat reclined. Do you believe the lack of a clear and conspicuous warning about the danger of traveling with the seat reclined makes a vehicle’s design defective?
Hyperlink: A Near-Fatal Mistake Due to Labeling?
In November 2007 actor Dennis Quaid and his wife Kimberly were celebrating the birth of their newborn twins at Cedars-Sinai Medical Center in Los Angeles. The twins suffered a staph infection, and doctors prescribed a blood thinner to prevent blood clots. The blood thinner, Heparin, comes in two doses, with the heavier dose one thousand times more potent than the lower dose. However, the two doses come in similar packaging with blue labels. Nurses at the hospital inadvertently gave the twins the higher dose, nearly killing the twins. In Indianapolis earlier that year, three premature infants did in fact die from overdosing on Heparin. The Quaids are suing the manufacturer, arguing that the labels on the drug represent a design defect because it is too easy to confuse the two doses. The manufacturer, Baxter Healthcare, has since changed the design to include a red warning label that must be torn off before the drug can be used.
http://www.usatoday.com/life/people/2007-12-04-quaid-lawsuit_N.htm
There are several defenses to strict product liability. Since product liability is strict liability, the plaintiff’s contributory or comparative negligence is not a defense. However, assumption of risk can be a defense. As in negligence, the user must know of the risk of harm and voluntarily assume that risk. For example, someone cutting carrots with a sharp knife voluntarily assumes the risk that the knife may slip and cut him or her, meaning he or she cannot sue the knife manufacturer. However, if the knife blade unexpectedly detaches from the knife handle because of a design or production defect, and injures the user, then there is no assumption of risk since the user would not have known about that particular risk.
Product misuse is another defense to strict product liability. If the consumer misuses the product in a way that is unforeseeable by the manufacturer, then strict liability does not apply. Modifying a lawnmower to operate as a go-kart, for instance, is product misuse. Note that manufacturers are still liable for any misuse that is foreseeable, and they must take steps to warn against that misuse. A related defense is known as the commonly known danger doctrine. If a manufacturer can convince a jury that the plaintiff’s injury resulted from a commonly known danger, then the defendant may escape liability.
Key Takeaways
In areas where strict liability applies, the defendant is liable no matter how careful the defendant was in preventing harm. Carrying out ultrahazardous activities results in strict liability for defendants. Another area where strict liability applies is in the serving of alcohol to minors or visibly intoxicated persons. A large area of strict liability applies to the manufacture, distribution, and sale of unreasonably dangerous products. Products can be unreasonably dangerous because of a production defect, design defect, or both. A product’s warnings and documentation are a part of a product’s design, and therefore inadequate warnings can be a basis for strict product liability. Assumption of risk, product misuse, and commonly known dangers are all defenses to strict product liability.
Exercise \(1\)
1. Is the risk of death from smoking a commonly known danger? It may be today, but in the fifties and sixties, the tobacco industry undertook an extraordinary campaign to convince the public that there was no harm in smoking cigarettes, and even suggested that smoking may have health benefits. See http://tobacco.stanford.edu for a collection of some of the print advertising from this era. Should older plaintiffs who grew up viewing these advertisements be allowed to sue tobacco companies under strict product liability? Why or why not?
2. Is fast food or restaurant food an unreasonably dangerous product? Many nutritionists and doctors believe that excessive consumption of fast food and restaurant food can lead to obesity, high blood pressure, heart disease, diabetes, and other health complications including premature death. You may be surprised at exactly how bad these food products can be for you. See http://www.youtube.com/watch?v=MtgOmChwAm4 for an example of how unhealthy eating out at Italian restaurants can be. Should these food producers therefore take steps to make their product less dangerous or to warn about the dangers of overconsumption? Should Congress pass legislation such as the Personal Responsibility in Food Consumption Act to immunize the food industry from product liability suits?
3. Stella Liebeck, an elderly grandmother, received third-degree burns when she spilled coffee purchased at a McDonald’s drive-through. At trial, experts testified that McDonald’s coffee was too hot to be consumed at the point of purchase, was hotter than any other restaurant’s coffee or coffee brewed at home, and was so hot that third-degree burns would result within three to five seconds of coming into contact with the skin. McDonald’s also conceded that the coffee was brewed extremely hot for commercial (profit) reasons, because most customers wanted coffee to be hot throughout their commute. After finding the company liable, the jury awarded Mrs. Liebeck two days’ worth of coffee sales at McDonald’s, an amount equivalent to \$2.7 million, in punitive damages. The award, although reduced to much less than that, set off a firestorm of criticism that has not died down to this day. Do you believe that it’s possible for coffee to be unreasonably dangerous? See http://www.hotcoffeethemovie.com for one filmmaker’s perspective on this case. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/07%3A_Torts/7.04%3A_Strict_Liability.txt |
Tort law is continually changing and adapting to societal expectations about the freedoms and interests we expect to protect. Although it has endured for many years, recent debates have sought to recast the viability of tort law in political terms. The Republican Party platform, for example, maintains that the rule of tort trial lawyers threatens America’s “global competitiveness, denies Americans access to the quality of justice they deserve, and puts every small business one lawsuit away from bankruptcy.”Republican National Committee, “2008 Republican Platform,” 2008, www.gop.com/2008Platform/Economy.htm#7 (accessed September 27, 2010). Many businesses see tort lawsuits as a nuisance at best and ruinous at worst, and would like to see them disappear altogether. Consumer rights activists, on the other hand (and often backed by plaintiff lawyer groups), believe that tort lawsuits are the most effective way to keep corporations honest and prevent them from putting profits before safety. This debate has led to several proposals for tort reform among the various states, or by the federal government.
These reforms can take several different forms. One common reform is to impose a statute of repose on product liability claims. These statutes function like a statute of limitations and bar plaintiffs from filing tort claims after a certain period of time has lapsed. For example, in 1994 President Clinton signed the General Aviation Revitalization Act into law, imposing an eighteen-year statute of repose on product liability claims brought against general aviation aircraft manufacturers such as Cessna and Piper. The law allowed these manufacturers to once again launch new light aircraft production in the United States. Another popular tort reform is a cap on punitive damages. President George W. Bush supported a nationwide punitive damage cap of \$250,000 for medical malpractice claims, but Congress did not pass any such law. Other reforms call for eliminating defective design as a basis for recovery, barring any claims if a product has been modified by the consumer in any way, and allowing for the state-of-the-art defense (if something was “state of the art” at the time it was produced then no strict liability can apply).
Occasionally Congress passes legislation that provides industry-wide tort lawsuit protection for certain industries. For example, in 2005 President George W. Bush signed the Protection of Lawful Commerce in Arms Act. The law shields firearm manufacturers and dealers from product liability lawsuits for crimes committed with their products. Many industries have tried to obtain this form of industry-wide protection, either from Congress or from judicial rulings. Most recently, drug manufacturers hoped for industry-wide protection by arguing that if the Food and Drug Administration approved drug labels, labeling lawsuits would be preempted by the Constitution. The Supreme Court rejected this argument in 2009. Wyeth v. Levine, 555 U.S. ___ (2009), http://www.law.cornell.edu/supct/html/06-1249.ZS.html (accessed October 2, 2010).
In spite of these efforts at tort reform, torts remain an important and viable part of civil law. All businesses, of all sizes and across all industries, must maintain a keen understanding of the duties and responsibilities imposed by tort law. Being able to understand, and even embrace, these duties can help businesses thrive while keeping consumers and customers safe. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/07%3A_Torts/7.05%3A_Concluding_Thoughts.txt |
Learning Objectives
After reading this chapter, you should understand different classifications of property, including personal property and real property, as well as different types of interests in real property. You will also learn about methods of acquisition and transfer of real property. At the conclusion of this chapter, you should be able to answer the following questions:
• What is the difference between real property and personal property?
• How is ownership interest in personal property transferred?
• What interests in real property exist?
• How is real property acquired and transferred?
• What legal relationships exist between landlord and tenants?
The concepts of property and ownership are fundamental to any society. Property refers to tangible and intangible items that can be owned. Ownership is a concept that means the right to exclude others. Disputes over both have been at the root of conflicts and wars since time immemorial. Without laws to protect property ownership, the stability of our society would be seriously undermined. For example, if law did not protect ownership interests in property, then people would have to protect their property themselves. This means that people would have to hire their own security forces to protect their property, or they would have to stand guard over their property personally. It would be difficult to get anything else done. Such a system would likely result in the development of powerful factions. Those with the greatest power would dominate property ownership, and weaker members of society would be at their mercy. For example, one of the opening scenes of the movie Black Hawk Down illustrates a U.N. food distribution point in Mogadishu, Somalia. As depicted in that scene, people were waiting to receive the distribution of food, but a powerful, armed faction seized the cargo and opened fire on them. Obviously, such a system of property ownership would prove to be very unsettling, and it would lead to great instability in our economic system.
Our legal system creates a peaceful means to acquire, retain, and divest of property, and to settle property disputes. It punishes those who operate outside of those rules. Indeed, those who do not acquire property lawfully or who do not settle property disputes within the confines of our legal system are subjected to criminal and civil penalties.
In the United States, our legal system ensures the ability to own property to everyone that the system recognizes can own property. Of course, not everyone has always been able to own property. The history of the United States is replete with examples of exclusion from the property ownership system. For example, at various times and in different ways, married women, African Americans, and people of Chinese and Japanese descent have been subject to restrictions regarding the ownership of real property. Because property law is a state law issue, those restrictions and exclusions varied from state to state. Today, no such restrictions exist. Indeed, even a nonhuman legal person, such as a corporation, can own property. However, some biological beings cannot own property. For example, nonhuman animals cannot own real or personal property in our legal system. This is because nonhuman animals are not legal persons. However, a nonhuman animal can be a beneficiary of a trust in many states.
Moreover, not everything is subject to ownership. For instance, the human body cannot be owned by another, though historically, in legal systems that recognized slavery, certain human bodies could be owned. Today, public policy discourages the treatment of human body as personal property, rendering “gifts” of body parts to specific individuals largely suspect. For example, organ donees may have a need for an organ destined for transplant into their own bodies after the donor’s body dies, but they do not have a legal right to it. Colavito v. New York Organ Donor Network, 2006 NY Slip Op. 09320 (NY App. Ct. 2006). Similarly, the question regarding whether human genes may be owned through patent is a hot topic. Check out "Hyperlink: When DNA Is Isolated from the Human Body, Is It Subject to Ownership by Patent?" and consider whether the benefits of patentability of certain body parts, like genes, might outstrip the concerns surrounding ownership of the human body.
Hyperlink: When DNA is Isolated from the Human Body, is it Subject to Ownership by Patent?
http://www.nytimes.com/2010/03/30/business/30gene.html
Before engaging in questions regarding the evolution of property ownership rights, it is necessary to lay the foundation for studying this fascinating area of law. It is this foundation to which we now turn. This chapter explores the differences between real and personal property, and the acquisition, transfer, and protection of real and personal property interests. Additionally, it examines different interests in real property.
Key Takeaways
The U.S. legal system protects the rights to own, acquire, protect, and divest of real and personal property. These protections are necessary for peaceful civil society. Historically, different groups of people have been subjected to discriminatory practices—both legal and illegal—regarding property ownership. Today, legal persons can own, acquire, transfer, and sell property. However, not everything is subject to property ownership concepts. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/08%3A_The_Property_System/8.01%3A_Introduction.txt |
Learning Objectives
• Distinguish between personal property and real property.
• Understand classifications of property.
• Examine methods of acquisition of personal property.
• Understand the concept of bailment, and the legal duties associated with bailment.
Let’s begin with an understanding of the differences between types of property. This is important because different laws apply to different types of property. While it might be perfectly legal to destroy a piece of personal property—like a chair—without obtaining permission from the government, destruction of real property is a different matter altogether. For example, the owner of an office building who wishes to demolish it would be subject to many local laws, such as requirements to obtain the necessary permits. Such an activity might also be subject to further legal scrutiny, if the building in question holds particular historic value, for example. Let’s compare this to the destruction of a chair, which is personal property. Even if the chair is the chair that Abraham Lincoln sat in while drafting the Emancipation Proclamation, as long as the chair is owned by the person who wishes to destroy it, the owner may simply load it into his or her truck and haul it to the dump. No special permission is required because there are few legal restrictions on the destruction of private property.
As you can see, property can be classified as real or personal. Real property is land and certain things that are attached to it or associated with it. Real property is raw land, such as a forest or a field, as well as buildings, like a house, a condominium, or an office building. Additionally, things that are associated with land, like mineral rights, are also real property. People often talk about real property by using the term real estate, which reflects both the concept of real property and the ownership interest concept of estate.
Many businesses, from grocery stores to coffee shops to hotels, rely on real property for customers or clients to visit to conduct business. Today, many businesses are also conducted virtually, and have only virtual shops. Virtual stores, such as those found on eBay, are not forms of real property. However, certain virtual real properties, such as those found on Second Life, are traded for real money. Check out the two links in "Hyperlink: “Unreal” Property" to read about this “property” boom, where real business occurs over nonreal property.
Personal property is property that is not real property. Tangible property is something that can be touched. Moveable, tangible personal property is chattel. Many businesses exist to sell personal property. For example, the primary purpose of retailers such as Wal-Mart, Amazon.com, and Sears is to sell personal property. Some property can also be described as fungible property. Property that can easily be substituted with identical property is said to be fungible. For example, if you bought a pound of sugar from a container containing ten pounds of sugar, you wouldn’t care which specific grains of sugar made up your purchase, because all the sugar in the container is fungible. Other types of fungible goods include juices, oil, metals such as steel or aluminum, and physical monetary currency.
Some personal property is intangible. Intangible property does not physically exist, but it is still subject to ownership principles, including acquisition, transfer, and sale. For instance, the right to payment under a contract, the right to exclude others from a patented product, and the right to prohibit others from using copyrighted materials are all examples of intangible property.
Sounds simple, right? Your iPod, your flash drive, and your computer are all personal property. Your dorm room, apartment, or house is real property. So far, so good. But imagine that you found a Jacuzzi for sale that you loved. You plunked down \$5,000 to buy it, and you have it delivered to your house. You pay for construction of a deck to surround it and plumbing to service it. Is the Jacuzzi personal property or is it real property? This is an example of personal property that becomes attached to the land as a fixture. A fixture is something that used to be personal property, but it has become attached to the land so that it is legally a part of the land. Fixtures are treated like real property. Accordingly, when real property is transferred, fixtures are transferred as a part of the real property. In our example, if you move, you will have to leave your beloved Jacuzzi behind, unless you make express provisions to remove it. What if you were just renting? Since removing a fixture would cause substantial harm to the property, that fixture remains with the land. The landlord might be very happy about that!
Some things that are attached to the land are not fixtures but are part of the real property itself. Imagine a farm with one thousand acres planted in corn. Is the corn crop personal property, or is it real property? Or imagine a forest. Maybe the owner has been thinking about timbering the forest for some extra money. Is the forest personal property, or is it real property? Both the corn crop and trees are examples of real property that can become personal property, if they are severed from the land. This means that when an ear of corn is picked from the stalk, the ear of corn becomes personal property, even though while it was growing and still attached the land, it was real property. Likewise, when a tree is felled, that tree is transformed from real property to personal property.
Besides property types, property can be classified by ownership, too. Personal property and real property can be private or public. Private property is owned by someone or something that is not the government. Individuals, corporations, and partnerships, for instance, can own private property. Private property can include real property like land or buildings, and personal property, such as automobiles, furniture, and computers. Property that is owned by the government is public property. Yellowstone National Park and the Gifford Pinchot National Forest are both examples of public property that is real property. Public property can also include personal property, such as automobiles, furniture, and computers owned by state or local governments.
Methods of Acquisition of Personal Property
Personal property may be acquired for ownership in several different ways. For example, if you produce something, then you may own it, unless you are producing it in the capacity of your work for someone else. If you buy four yards of wool fabric and sew a coat out of it, then you own that coat by virtue of having produced it with your own materials. This is ownership by production. However, if you sew a coat as part of your job while working for your employer, then the employer will own the coat.
If you are in the business of producing coats to sell, then you may be a merchant, and the rules of the Uniform Commercial Code (UCC) would govern transactions involving the sale of goods and the purchase of supplies from other merchants. Regardless of whether someone is a merchant or not, purchase is a means of acquiring ownership. Indeed, in today’s world, purchase may be the most common method of acquiring property.
Property may also be gifted. A gift is a voluntary transfer of property. Generally, the donor of the gift must intend to gift the property, the donor must deliver the gift, and the gift must be accepted by the intended recipient, known as the donee. A conditional gift is a gift that requires a condition to be met before the gift will transfer. For example, if your parents said, “You can have a new car, if you graduate from school,” then that would be an example of a conditional gift. If you do not graduate from school, then you cannot have the gift of the car.
What if you find something? Dating at least to the Institutes of Justinian in Roman law, the concept of “finders keepers” is one known to every preschooler: finders keepers, losers weepers. However, in law, things are not quite so simple. Property that someone finds can be classified in several ways. A finder of personal property may claim ownership of the property if it is abandoned. The owners of abandoned property must intend to relinquish ownership in it. For example, if you take your chair to the landfill, you have abandoned the chair. Someone may come along and take possession of it, which will place ownership of the chair in that person. If you change your mind later, that’s too bad. The chair now belongs to the new owner. However, if the property is simply lost or mislaid, then the finder must relinquish it once the rightful owner demands its return. If the finder refuses to return lost or mislaid property to its rightful owner, the owner can sue for conversion, which is a tort. Conversion is intentional, substantial interference with the chattel of another. Another classification of personal property applicable to found property is treasure trove. A treasure trove is money or precious metals, like gold, for which the concept of “finders keepers” sometimes is applicable.
Imagine finding the next-generation iPhone just lying on a bar stool. It has not been released yet, but there you are with an actual prototype in your hands! This is valuable property because it embodies the cutting-edge intellectual property of Apple, both in utility and design. Brian Hogan found himself in this position. Apparently, an Apple software engineer had accidentally left the prototype on a bar stool one evening. Hogan decided to sell the prototype to Gizmodo, a tech site, which was willing to pay for it so that it could write an early and exclusive review of this soon-to-be hot item on the market. Gizmodo subsequently discovered that Apple had lost an iPhone prototype and wanted it returned. Regardless of that fact, Gizmodo dismantled the prototype and published photos on its Web site. Subsequently, it returned the property to Apple. Edward C. Baig, “Gizmodo: Lost Next-Gen iPhone Returned to Apple,” USA Today, April 21, 2010, http://www.usatoday.com/tech/products/2010-04-20-iphone_N.htm (accessed September 27, 2010).
Was the prototype of the next-generation iPhone abandoned, lost, mislaid, or a treasure trove? If Apple filed a civil lawsuit against Gizmodo, what would the claim be and who should win? Since we know that Apple wanted the property back, we know that it had no intention of relinquishing ownership of it. Therefore, the property was not abandoned. Since a next-generation iPhone is not money or precious metals—even though it is very valuable and worth a lot of money to Apple—the concept of treasure trove does not apply. A phone is not actual coin or cash. In this case, the property was either lost or mislaid, because it was unintentionally relinquished or set down for later retrieval, but the owner had forgotten where it was placed. In either case, if the phone had not been returned, Apple could have brought a suit for conversion. A successful conversion claim would have awarded damages to Apple. Just like any successful conversion claim, damages would not include a requirement to return the property itself. Incidentally, California has captured the duty to return lost or mislaid property in its criminal statutes, and the facts of this case are being investigated for possible theft charges. Check out "Hyperlink: Finders Keepers?" for this story and two additional cautionary tales about claiming found property.
Hyperlink: Finders Keepers?
Be careful what you wish for. These stories might seem like a miracle to the cash-strapped, but they are cautionary tales.
Next-Generation iPhone
Gizmodo published the details of a found iPhone prototype here http://gizmodo.com/5520164/this-is-apples-next-iphone, but the prototype became the subject of law enforcement and an Apple complaint, as seen here: http://www.cnn.com/2010/TECH/04/30/wired.iphone.finder/index.html?iref=allsearch
Cold Cash, Hot Lead
This found “money” along an interstate might be abandoned, lost, or mislaid, but it is unlikely to be claimed by its rightful owner:
http://www.cnn.com/video/#/video/us/2008/12/05/wa.found.money.KING?iref=allsearch
A Renovator’s Fantasy
This found money in the walls of a house might be an example of a treasure trove, but the treasure was quickly dissipated by legal troubles:
www.cbsnews.com/stories/2007/12/13/eveningnews/main3617369.shtml and the epilogue: http://www.nytimes.com/2008/11/09/us/09house.html
Bailment
Sometimes it is necessary to intentionally leave personal property with someone else. For example, imagine that you own a cat. If your cat, which is considered to be chattel, needs to have surgery, you will need to leave her at the veterinary hospital. Clearly, taking your cat to a veterinary hospital does not constitute abandonment. Likewise, you have not lost or mislaid your cat. And, precious though she may be, your cat is not subject to the concept of treasure trove. Instead, in this situation, you will be known as bailor, and you will be seeking a bailment with your veterinarian. A bailor is someone in the rightful possession of personal property who gives the property to someone else to hold. A bailment is the arrangement in which when the rightful possessor (such as the owner) of personal property gives the property to someone else to hold. The holding party, known as the bailee, agrees to accept the property and has the duty to return it. The bailee is someone who is in possession of someone else’s property. In our example, you rightfully have possession of your cat because she is your personal property. You give your cat to the veterinarian to hold, who has agreed to accept the cat. You also rightfully expect that the cat will be returned to you on demand. Indeed, the veterinarian has a duty, by virtue of the bailment, to return the cat to you. Consider "Hyperlink: Lost Dog", where Delta Airlines was the bailee of a dog, which it lost.
Hyperlink: Lost Dog
Check out this link. Do you think the remedy offered by Delta Airlines is adequate in this case? Why or why not?
www.clickondetroit.com/news/23515167/detail.html
The bailee has certain duties to the bailor. For example, a bailee has a duty to take reasonable care of the property while the property is in his or her possession. This means different things for different types of bailment. If the bailee is the only party who benefits from the bailment, then the bailee must take extraordinary care with the personal property. A common example of a bailee being the only party who benefits is where the owner of the property loans the property to someone for his or her use. For instance, if you loan your neighbor a snow shovel without asking for something in return, then your neighbor receives the sole benefit of the bailment. His or her duty of care is that he or she must take extraordinary care with the snow shovel. However, when both parties receive benefit from the bailment, such as when you rent a DVD from Blockbuster, only the duty of ordinary care is imposed on the bailee. The bailee receives the DVD and Blockbuster receives a rental fee. When the benefit of the bailment exists for the benefit of the bailor only, then only minimum care is required. Gross negligence will give rise to liability, but there is no great duty for the bailee to be as careful as he or she would be if he or she were receiving some benefit. If someone asks you to hold his or her books while he or she jumps into a swimming pool, you would have a minimum duty of care. If you lost the books, then you would not be liable. However, if you intentionally threw the books into the pool, then you would be grossly negligent and liable for damages.
An involuntary bailment is created when someone finds lost or mislaid property. The finder may not destroy the property, though the duties that he or she owes regarding the property may vary from state to state. A voluntary bailment is created when intention exists to create the bailment, as described in the previous paragraph.
As you can imagine, bailment is common in business. Examples of bailment in business include placing packages or goods with common carriers for delivery, warehousing goods with a third party prior to sale or delivery, or taking clients’ or customers’ automobiles in a valet service. Consider whether a business should be able to disclaim bailment (and the duties that go along with bailment). For example, if a hotel required its guests to sign a “no bailment created” clause on check-in, should that excuse the hotel from liability if the guests’ personal property is damaged while the property is left in the hotel?
Key Takeaways
Property is classified as real property or personal property, tangible or intangible, and private or public. Personal property can be transformed into real property when it is affixed to the land. Real property can be transformed into personal property when it is severed from the land. Personal property can be acquired for ownership through production, purchase, or gift or, in certain circumstances, by finding it. Bailments are legal arrangements in which the rightful possessor of personal property leaves the property with someone else who agrees to hold it and return it on demand.
Exercise \(1\)
1. Classify the following as (1) personal property or real property, (2) tangible or intangible property, and (3) fungible property:
1. A prosthetic device, for example, an artificial leg
2. An expected inheritance of stock
3. Draperies hanging in a dining room
4. A bank account with a five-hundred-dollar balance
5. A fictional story that you created
6. A condominium on the thirty-second floor of a building in lower Manhattan
7. The right to receive payment for your work (e.g., wages, salary)
8. A wig that someone is wearing
9. A silo filled with wheat
10. The wheat in a silo
2. Would you be willing to pay real money for nonreal property in a virtual world like Second Life? Why or why not? What are people buying when they buy virtual real property? How does this differ from buying actual real property, like land?
3. If you found a prototype of the next-generation iPhone lying on a bar stool, what would you have done with it? What would be the consequences of your chosen action?
4. Think of an example of when you have asked for a bailment. Did you feel confident that you would receive your personal property when you demanded it? Did you worry that it would be damaged in any way? If it had been misdelivered, what would your legal remedies be?
5. Should bailees be permitted to disclaim liability for bailment agreements? Why or why not?
6. At major league baseball games, who do you think owns the baseball when it is being played, and who owns it when the ball enters the stands where members of the public sit? Who owns the ball if a member of the public picks it up? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/08%3A_The_Property_System/8.02%3A_Section_2-.txt |
Learning Objectives
• Understand the concept of real property.
• Examine methods of acquisition of real property.
• Understand different interests in real property, including ownership interests and scope of interests.
• Examine the landlord-tenant relationship.
Real property is land, and certain things that are attached to it or associated with it. Real property includes undeveloped land, like a forest or a field, and it includes buildings, such as houses, condominiums, and office buildings. Real property also includes things associated with the land, like subsurface rights. Fixtures are personal property that have become attached to the land, and they are transferred with the land. Fixtures in a house include things like the lights affixed to the ceiling, the furnace, and the bathtub. Plants and trees that grow on the land are real property until they are severed from the land. For example, farmers’ crops are part of their real property until they are separated from the land, at which time they become personal property.
Methods of Acquisition
Real property may be acquired for ownership (the title may be obtained) in one of several ways. It may be purchased, inherited, gifted, or even acquired through adverse possession. Ownership rights are transferred by title. Ownership of real property means that the owner has the right to possess the property, as well as the right to exclude others, within the boundaries of the law. If someone substantially interferes with your use and enjoyment of your real property, you may bring a claim in nuisance (a form of tort law). For example, if a neighbor decides to start burning tires on his property, the smell of the burning tires might substantially interfere with your use and enjoyment of your property, so you would have an actionable claim in nuisance. Similarly, if you own real property, you might rightfully seek damages against those who enter your land without your consent or permission. This would be a trespass to land claim. Owners of real property may also sell the real property, in whole or in part.
The most common way that real property is acquired is through purchase. Property law is a state law matter, and state laws vary regarding conveyance of property. Typically, someone who is interested in acquiring real property will ask a third party, such as a real estate agent or a broker, to help locate a suitable property and to facilitate the terms of the deal. The buyer and seller will negotiate a contract, which will contain all essential terms of the sale, such as location of the real property, price, fixtures that will be excluded from sale, and the type of ownership interest that is being transferred. Both parties will perform their promises under the contract (e.g., the buyer will pay the seller, and the seller will transfer the title via deed) to close the deal (“closing”), and then the deed will be recorded. A contract for any interest in property must be in writing to be valid against the defendant according to the Statute of Frauds.
Different types of deeds convey different types of interests. A quitclaim deed, for instance, conveys whatever interests in title that the grantor has in the property to the party to whom the quitclaim is given. Of course, that means if the grantor has no interests in the real property, a conveyance by quitclaim will not grant any interests in the property. For example, if you grant a quitclaim deed to your friend for the Empire State Building, then that means that you have transferred your interests in title to that building to your friend. If you have no interests in the title to the Empire State Building to begin with, then on conveyance of the quitclaim deed, your friend will not have any interests in the building either. You cannot convey interests that you do not have. On the other hand, many states allow a warranty deed, which conveys title and a warranty against defects in title as well as encumbrances. Buyers typically demand a warranty deed when they purchase property.
After title is transferred by the deed, the deed is typically recorded. Recording the deed is not necessary for ownership. However, recording a deed to property is important because it places others on notice that whoever has recorded the deed to the property owns the property. Some states favor the rights of those who record the deed first (under a race statute), while other states favor the rights of those who acquired the interest first without notice of other claims to the property (under a notice statute). A race/notice system, which has a race/notice statute, is one in which priority is given to the first bona fide purchaser to record when there is a conflict in ownership claim. A bona fide purchaser is simply a purchaser who takes title in good faith, with no knowledge of competing claims to title.
Besides outright purchase, another common way in which real property may be obtained is through inheritance. Real property may be bequeathed through a will or may transfer per state statutes when a decedent dies intestate. Generally speaking, people have the right to dispose of their property as they wish when they die, providing that their will or other transfer instrument meets their state’s requirements for validity. When someone dies intestate, state statutes will determine who among the decedent’s relatives receives the property. For example, state statutes often specify that property will go to the spouse, and if there is no spouse, then to the children. If there are no children, then to the parents. If there are no living parents, then to the siblings, and so on. If no such person exists, the property may finally escheat to the state.
Real property may also be acquired through a gift. Providing that the person who is giving the property actually intends to make the gift of title, delivers the deed to the recipient, and the gift is accepted, then the gift is valid. If one of these elements is not met, for instance, if the deed is not delivered to the intended party (or to a third party to hold for the intended party), then the gift has not been successfully made, and the title will not be conveyed.
A less common way to acquire real property is through the doctrine of adverse possession. Colloquially, this is often referred to as “squatter’s rights.” At its heart, this method of acquiring property captures the deeply held belief that a land’s value is in its use for profit. If a land sits idle at the owner’s hands but someone else puts it to use, then the law may—just may—favor the user’s claim to the land over that of the actual owner.
Adverse possession is when someone who is not the owner of real property has claimed the real property for his own. To be successful under this doctrine, several elements must be met. These include the following:
• The possessor must be in actual possession.
• The possession must be open and notorious, which means that it must be obvious to others (visible).
• The possession must be hostile, which means that it is against the actual owner’s interests.
• The possession must be continuous, which means that the possessor cannot have been evicted during the statutory length of time required to obtain title through possession.
• The possession must be exclusive.
• The state statutory length of time must be met, and this time varies from state to state. For example, some states, like Maine, require a twenty-year period, while other states, like Nevada, require only a five-year period.
Some states’ adverse possession laws also require that the possessor pay property taxes on the property during the course of the adverse possession. If all of these elements are met, then the possessor can bring a claim to quiet title. If successful, the possessor becomes the owner, without any compensation being made to the former owner.
Adverse possession and claims for quiet title often occur around property lines, where one party has routinely used another’s property because a fence has been misplaced. Other instances involve claims concerning land owned by people who do not visit it, such as land owned in a remote area. Still, other examples exist in cases of ouster, when a tenant in common constructively or actually evicts others with valid ownership interests. Remember that all elements of an adverse possession must occur for the entire statutory length of time for an action for quiet title to be successful. This means, for instance, if the owner checks on the property and finds someone there, the owner must interfere with those elements. The owner should evict the trespasser, and this can be accomplished by summoning the police. Doing so would break the continuity requirement.
A recent case in Boulder, Colorado, prompted the Colorado legislature to substantially alter the state’s adverse possession laws. In that case, a married couple, composed of a judge and an attorney, met the requirements for adverse possession and successfully brought an action for quiet title. In that case, the adverse possessors were clearly versed in the law. The actual owners of the property had purchased the land many years before to build a future retirement home. Check out "Hyperlink: A Question of Ethics" and see whether you think the Colorado legislature overreacted.
Hyperlink: A Question of Ethics
Is adverse possession a legally sanctioned form of theft?
http://www.denverpost.com/news/ci_7494276
Interests and Scope
Owning real property carries many responsibilities, as well as the potential for great profit and great liability. It is important to recognize the duties associated with property ownership, and learn how to protect yourself against potential liability associated with it. For instance, if a toxic waste site is discovered on your real property, you may very well be liable for its cleanup, even if you did not realize that such a site was there when you purchased the land. Each buyer of real property has a duty to exercise due diligence when purchasing land. The idea is that you should have known about the site, if it was discoverable on inspection. Knowing this, along with familiarity with the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), helps us recognize that we should never agree to buy land “sight unseen,” or at least without a professional inspector that we trust. But what if an old toxic waste site is located on property that you wish to sell? You would have a duty to disclose such a defect in the land to prospective buyers before conveying ownership.
Additionally, we must consider duties that landowners have to other people who enter the land. What are our duties to people who visit our home? Or our retail establishment? What if they are not invited but instead are trespassers? These duties of landowners will vary depending on the status of the person who was injured.
What if a gold mine were discovered on land that you used to own? Can you profit from that discovery? Probably not, if you conveyed full ownership to someone else.
As these examples illustrate, it is important to know about the duties of landowners, how to limit liability associated with the ownership of land, and when severance of liability occurs. These types of questions can be considered more fully when we consider ownership interests.
Additionally, it is important to know how an owner of real property may use the property, or the scope of his or her rights. Consider these questions: If you owned a lot in the middle of a city, can you build an apartment building that blocks the neighboring landowner’s light? Or if you own a piece of raw land where you discover oil, can you drill on your land if it siphons oil from underneath your neighbor’s land, or if it causes your neighbor’s land to collapse due to lack of subsurface support? If you live on a coastline and your neighbor builds a dyke that causes your waterfront property line to erode so that over the years your property is reduced in size, do you have an actionable claim against your neighbor? Conversely, if the ebb and flow of water along the coastline increases your property due to natural accretion, do you own the “new” property, even though it wasn’t part of the original purchase? Consider water disputes, which are a very hot topic in the western states. If you live next to a river, can you divert the entire stream of water, even if you wanted to divert it for a capricious reason? Imagine that you dreamed of having a very large private water park for your family, but you needed all the water in a river that adjoined your property to make that dream a reality. If you diverted all that water, other riparian owners might very well have an actionable claim. What if it was a drought year and you relied on water from a river to irrigate your commercial crops, but endangered salmon in the river needed the water for their habitat? Can you take the water for your crop, or must the water be left in the river for the endangered salmon? These types of legal questions can be addressed when we consider the scope of rights.
The following sections address duties of landowners, ownership interests, and scope of interest in real property.
Duties of Landowners
Landowners owe different duties to different types of people who enter their land. These responsibilities vary, depending on whether the person is a trespasser, a licensee, or an invitee.
A trespasser is a person who voluntarily, intentionally enters the land of another without permission or privilege. A landowner has a duty not to intentionally injure a trespasser. For instance, booby traps, pitfalls, or anything of the sort are simply not permitted. Trespassers injured from such a trap have valid claims against the landowner for injuries.
A licensee is someone who has permission to be on the land. Landowners have a higher duty of care to such a person. Not only must a landowner not intentionally injure a licensee, but the landowner must also warn the licensee of known defects. For example, if a landowner knows that the steps to his or her porch are icy, he or she has a duty to warn a licensee—such as a visiting friend—that those steps are icy. Failure to do so may result in liability for the landowner.
An invitee is someone who has entered real property by invitation. Businesses have issued invitations to the public. Public places have issued invitations to the public. Anyone who arrives at the invitation of an owner is an invitee. Landowners must inspect their property for defects, correct those defects when found, and warn invitees about such defects. This is why you will see a “caution” sign on the floor of a grocery store, after it has been mopped or after a liquid spill.
Ownership Interests in Real Property
Different types of interests may be owned in real property. For example, real property may be owned without restriction, subject only to local, state, and federal laws. Or ownership interests may be narrower, subject to conditions, the violation of which can lead to loss of those ownership interests.
The most complete ownership interest is represented by fee simple absolute. The owner of property in fee simple absolute has the greatest ownership interest recognized by law. Generally, if someone wants to buy real property, he or she is looking to buy property in fee simple absolute.
Compare that with a defeasible fee. A fee simple defeasible is subject to a condition of ownership or to some future event. For instance, if you donated land to “the City of Nashville, so long as it is used as a public greenway,” then the land would be owned in defeasible fee by the City of Nashville, unless it decided to do something else with the land, besides maintain it as a public greenway. Once the condition is violated, the land would revert back to either the original owner or whoever owned the reversion interest, which is a future interest in real property.
Another ownership interest is a life estate. This interest is measured by the life of the owner in the life estate. If you wished to grant ownership rights in real property to your mother for the length of her life, but then expected the property to be returned to you upon her death, you might grant a life estate to her. Similarly, a common investment, known as a reverse mortgage, employs the concept of life estate. A reverse mortgage is an arrangement where the purchaser of real property agrees to allow the seller of the property to retain possession of the property for a specified period of time (such as the remainder of his or her life) in exchange for the ability to purchase the property at today’s price. This can be an attractive investment if the investor believes that the value of the property will increase in the future and if the investor does not need immediate possession of the property. These arrangements essentially gamble on life expectancies of the sellers of real property by granting life estates to them in the property. However, sometimes this backfires. Check out "Hyperlink: Reverse Mortgage" for an example of a seller who outlived her investor in such an arrangement.
Hyperlink: Reverse Mortgage
“In life, one sometimes makes bad deals,” said Jeanne Calment, the oldest living woman in history, concerning the investor who “reverse mortgaged” her apartment.
http://www.nytimes.com/1995/12/29/world/a-120-year-lease-on-life-outlasts-apartment-heir.html
Sometimes, more than one owner owns the interest in the property. Several types of co-ownership interests are recognized in law. These ownership interests are important for matters of possession, right to transfer, right to profits from the land, and liability. For example, tenancy in common describes an ownership interest in which all owners have an undivided interest in the property, equal rights of possession, and a devisable interest. Compare this to a joint tenancy, which describes an ownership interest in which the surviving owner has the right of survivorship. Imagine that you own a gold mine with your partner, Frank. Would you rather have a tenancy in common or a joint tenancy? You would rather have a joint tenancy because if Frank dies, then his interest in the gold mine would vest in you, rather than in his heirs. After all, you may not want to be a partner with Frank’s grandson (or whoever), but that is exactly what might happen with tenancy in common. Similarly, a tenancy by the entirety includes the right of survivorship, but it can only occur between a husband and wife. This concept is recognized in some states, but not all states.
These different interests are created by specific wording in the instrument of conveyance. To create a tenancy in common, the language would be “To John and Frank,” if John and Frank were to be the co-owners. However, if a joint tenancy were intended, the conveyance would have to be more specific, like this: “To John and Frank, with rights of survivorship.” Note that John and Frank could not benefit from a tenancy by the entirety unless they lived in a state that recognized same-sex marriages, and unless they were, in fact, married. Moreover, such questions have not yet arisen in our courts because the legal concept of same-sex marriage is still nascent and, in many states, not yet recognized in law.
Note that a tenant in tenancy in common may sell or transfer his or her rights without seeking permission from his or her cotenant. Imagine that you owned a farm with your best friend. At first, you agree to engage only in organic farming practices. Later, your friend wants to move to conventional farming practices. Since you do not want any part in the spraying of pesticides or herbicides on the land, you decide to sell your interests to someone else. Even if your friend opposes the sale, he or she cannot block it. This is because cotenants in a tenancy in common have the unilateral right to transfer their interests in property. Imagine, later, that someone working on that land becomes very sick from a pesticide sprayed there after you sold your interest. You would not be liable for any damages resulting from such an event, because your liability would be severed with the sale. Compare this to a joint tenancy, including tenancy by the entirety. To transfer one’s interests, the consent and approval of the cotenant is required. In the case that joint tenants disagree about the use of the property or its disposal, the courts can step in to grant a partition of the land, which essentially results in a separate parcels being granted to the individual tenants. This recasts the formerly joint tenants into adjacent landowners, and it allows them to dispose of or use their property as each sees fit, with no rights to the other’s property.
Scope of Interests in Real Property
Scope of ownership matters, because it is determinative of what can (or cannot) be done with the land. The surface of the land and the buildings that are attached to the land are implicitly included when most people contemplate the scope of ownership of real property. However, other interests can be parsed and conveyed separately, including subsurface or mineral rights, and right to light or right to a view. Moreover, water rights are granted differently, depending on whether the property is in the western or the eastern United States. Additionally, easements and covenants grant certain rights to nonpossessors of land.
Subsurface or mineral rights are rights to the substances beneath the actual surface of the land. If you are interesting in drilling for oil, but you do not want to buy every piece of land where you might wish to speculate, then you probably are in the market to purchase or lease mineral rights. This would allow you the right to extract whatever you find under the surface of the land and sell it.
Water rights are determined in two different ways in the United States. Generally speaking, states east of the Mississippi River follow a riparian water rights doctrine, which means that those who live next to the water have a right to use the water. The water is shared among the riparian owners. In a quite different scheme, most western states use the concept of prior appropriation, which grants rights to those who used those rights “first in time.” Moreover, under this concept, the use must be beneficial, but the owner of the right need not be an adjacent landowner. This policy has led to some unnatural uses of land in western states, where water rights are highly valued due to the scarcity. For example, we see flourishing farmlands in extremely arid climates because the owners of the water rights want to make sure that they retain their prior appropriation rights to the water by putting it to beneficial use (e.g., crop irrigation). If water is not put to beneficial use under a prior appropriation doctrine, then those rights can be lost. Prior appropriation is basically a “use it or lose it” doctrine. Moreover, adjacent landowners in prior appropriation states may have no right whatsoever to use the water that runs through their land. Indeed, such an outcome is very common.
Easements and covenants are nonpossessory interests in real property. An easement is created expressly or impliedly, and it generally gives people the right to use another’s land for a particular purpose. For example, an easement for utility companies to enter onto the land of others is common. This allows the utility companies to maintain poles, power lines, cable lines, and so on. Other examples include a landlocked property having an easement across another piece of property for the purpose of a driveway, or an easement granted to the public to walk along the property of another to gain access to the shoreline.
A covenant is a voluntary restriction on the use of land. Common covenants are homeowners associations’ rules, which restrict the rights of the owners to use their land in certain ways, often for aesthetic purposes. For instance, such covenants might require houses subject to the covenant to be painted only in certain preapproved colors, or they might contain prohibitions against building swimming pools.
Some covenants and easements run with the land, which means that the restrictions will apply to subsequent owners of the real property. Whether a covenant or easement runs with the land depends on the type of interest granted.
Landlord-Tenant Relationships
A leasehold interest may be created in real property. For example, if you rent an apartment, house, or dormitory room from campus, you are a tenant with a leasehold interest. In such a relationship, you are the tenant and the property owner is the landlord. A leasehold is simply a possessory interest with certain rights and duties, which are typically specified in the lease agreement. For example, a tenant has the right to exclusive possession of the real property and the duty to follow the rules of occupancy set out by the landlord, and a landlord in a residential lease agreement has the right to be paid rent and the duty to ensure that the premises are habitable. If one party does not perform under the lease as required, the other party may seek legal remedy. For example, if a tenant does not pay rent, then a landlord may lawfully evict the tenant from the premises, even if the term of the lease has not run. Like other interests in real property, leases generally must be in writing to be enforceable against the defendant.
Different types of tenancies may be created. The most common tenancies are probably tenancies for years and periodic tenancies. Tenancy for years is simply a tenancy that lasts for a particular, specified period of time. When you rent an apartment, you might sign a lease for nine months to reflect the school year. That would be a tenancy for years, even though the term of the lease is less than one year. A periodic tenancy, on the other hand, is a tenancy that simply runs for a particular period of time and then automatically renews if it is not terminated by the landlord or the tenant. For instance, a one-year lease may become a periodic tenancy if neither party terminates. Imagine that you had a one-year lease but you did not move out at the end of the year, and the landlord continued to accept rent payments and took no action to terminate the lease. A new lease—for a one-year period of time—would be created. Less common types of tenancies are tenancy at will, which is a tenancy for no particular fixed period of time and subject to termination at will by either the landlord or the tenant, and tenancy at sufferance, which is a tenancy that occurs when a tenant remains on the property after the right of possession has ended and without the landlord’s consent.
Tenancies may be created for residential purposes or commercial purposes. Commercial leases typically last for longer periods of time than residential leases. For example, it is not uncommon to hear about commercial leases that last five, ten, twenty-five, or even ninety-nine years. Many of the same responsibilities and duties exist with commercial leases, but there are some important differences. For example, a commercial tenant may demand that the landlord refuse to rent to a competitor of the tenant within the same building. For example, if a golf shop locates in a strip mall, it may require as a term in the lease that the landlord refrain from renting other retail space to a competitor golf shop within the same strip mall.
Lease interests are assignable unless those rights are expressly restricted by the lease agreement. This means that the rights conveyed by the lease, which is a contract, may be transferred to another party by assignment, unless an express restriction on assignment exists within the lease. You may have seen restrictions on assignment in your own residential lease in the form of a no-subletting clause. Commercial leases routinely contain a restriction on assignment without permission from the landlord.
Just as the owner of real property may sell any or all of his or her interests, any ownership interest in real property may also be leased. For example, someone who owns the subsurface rights of land may lease the right to drill for oil or gas to another.
Key Takeaways
Real property may be acquired by purchase, inheritance, gift, or adverse possession. Owners of property must know the breadth and limits of their ownership interests to understand their rights to profits derived from the land and their liability resulting from use of their land. Interests in land may be absolute, conditional, or for a period of time. Additionally, co-owners may have different rights, depending on their kind of ownership. The scope of interest in land may include surface and the buildings attached to it, while other interests may be severed and conveyed separately, such as subsurface rights and water rights. Easements and covenants in real property convey nonpossessory interests. Leasehold interests are possessory, nonownership interests.
Exercise \(1\)
1. Do you agree that a land’s value is only its profits? If not, what makes land valuable? Does it have an “inherent” value, which has nothing to do with human profit?
2. Consider this contemporary take on the tort of nuisance. Some Gulf Coast landowners filed a nuisance suit against power companies for emitting carbon, arguing that the carbon led to global warming, which then led to increased sea levels, which then led to hurricane Katrina’s unusual ferocity and strength. The district court dismissed the case, but a three-judge panel on the Fifth Circuit reversed, saying the landowners had standing to proceed and that the claim was justiciable. Do you think that this is a valid nuisance claim? Why or why not?
3. Do you think that adverse possession should be abolished? Why or why not? If you discovered a squatter on your land, what should you do to protect your title?
4. What type of due diligence can be performed to ensure that property does not contain a buried toxic waste dump?
5. Classify the following as trespasser, licensee, or invitee to determine the duty owed by a landowner:
1. The mailman
2. A customer in Wal-Mart
3. A person who cuts across your land to reach the other side, without your permission
6. Think of a situation in which you would grant a life estate to someone in property that you own. How does that situation differ from renting property to a tenant?
7. Find a story in the newspaper about liability resulting from the ownership of real property. Do you think that landowner should be liable in the case that you located? Why or why not?
8. What benefits can you see for both the landlord and the tenant for extremely long leases? What are the risks?
8.06: Concluding Thoughts
An understanding of the nature of property is imperative, because at the heart of many transactions is the acquisition, rights to possession or use, or sale of personal or real property. Clearly, these transactions are central to many businesses and the livelihoods of the people involved in business.
When thinking about acquiring property, it is important to know not only whether the property is “right” for your or for your business but also about the rights and duties associated with acquiring it, the protections afforded to you by law as the owner of it, and how to transfer it to another party at the time of sale, lease, or licensing the right to use it. Additionally, liability often attaches to property, and limiting one’s liability is at the heart of what your study of law should encourage you to do. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/08%3A_The_Property_System/8.03%3A_Section_3-.txt |
Learning Objectives
No matter what industry a company operates in, or its size, a company’s intellectual property is often more valuable than its physical assets. While factories and inventory can be rebuilt after a loss, losing control of intellectual property can be ruinous for companies. After reading this chapter, you should be able to apply intellectual property concepts to answer the following questions:
• Why is it important for the law to protect intellectual property?
• Under what authority does Congress regulate intellectual property?
• How can intellectual property be protected?
• What are the differences between the major forms of intellectual property protection?
• What are some current ethical issues that arise under intellectual property law?
The Apple iPhone 4 is the latest model of Apple’s do-it-all cell phone. Since its introduction in 2007, the iPhone has redefined the “smartphone” segment of the wireless phone industry and left its competitors scrambling to catch up. Its sleek lines, gorgeous full-color display, built-in GPS navigation and camera, visual voice mail, and Web surfing capability (either over Wi-Fi or 3G phone networks) made it an instant hit, with thousands of consumers lining up for hours to have their chance to buy one. Its revolutionary business model, where thousands of software programmers could write small programs called “apps” and sell them on the App Store through Apple’s iTunes software, created a win-win-win business model for everyone who touched the iPhone. For software programmers, it was a win because small, untested, and first-time programmers could “strike it rich” by selling thousands of their apps directly to consumers without having to find a software publisher first. For Apple, it was a win because thousands of talented programmers, not on Apple’s payroll, were developing content for their product and enhancing its appeal. Apple also wins because it collects a percentage fee from every app sold on its iTunes store. And finally, consumers win because they have access to all sorts of creative programs to help them do more on their iPhones than simply make a phone call. The business has been a tremendous success for both Apple and AT&T, the exclusive service provider of iPhones in the United States.
There are quite a few companies in the industry that aren’t doing as well, from Nokia to Motorola to Sony Ericsson. If they wanted to see how Apple makes the iPhone, all they’d have to do is buy one and then take it apart to see its components (a process known as reverse engineering). Or they could look at the reverse engineering conducted by iSuppli, an independent market intelligence firm.
Hyperlink: iPhone Teardown Analysis
You can see how iSuppli broke down the components in an iPhone 4 by reading this press release:
http://www.isuppli.com/Teardowns-Manufacturing-and-Pricing/News/Pages/iPhone-4-Carries-Bill-of-Materials-of-187-51-According-to-iSuppli.aspx
iSuppli found out that the bill of material (BOM), or the breakdown of each component Apple purchased to assemble into an iPhone, is roughly \$187.51. The most expensive components are a \$27 16GB flash memory module from Samsung, a \$28.50 display module that includes the iPhone’s glossy 3.5-inch screen, and a \$10 touch screen assembly that includes the touch-sensitive glass on top of the screen.
Apple makes a lot of money selling iPhones. Although the \$199 retail price of the 16GB iPhone 4 suggests that Apple makes only about \$12 profit per phone, in reality, the “cost” of the iPhone is much higher than \$199, since each phone is sold with a two-year contract with AT&T service. Industry analysts estimate that AT&T pays Apple approximately \$300 for each iPhone sold with an AT&T plan, in return for Apple agreeing not sell the iPhone through any other phone network.M. G. Siegler, “AT&T iPhone Deal Extended to 2010. Did Apple Mortgage Its Future for a Subsidy?” Social Beat, August 1, 2008, digital.venturebeat.com/2008/08/01/att-iphone-deal-extended-to-2010-did-apple-mortgage-its-future-for-a-subsidy (accessed September 27, 2010). The result for Apple is staggering profitability, with a \$1.21 billion profit reported in the first three months of 2009, much of which driven by iPhone sales.Jim Dalrymple, “Strong iPhone and iPod Sales Drive Apple Profits to \$1.21 Billion,” Macworld, April 22, 2009, http://www.macworld.com/article/140162/2009/04/appleearnings.html (accessed September 27, 2010). This chart (Figure 9.1.1 "Estimated Revenues of the Top Cell Phone Manufacturers") shows, to scale, how outsized Apple’s profits are compared to those of the rest of the industry. Apple’s profit margin, at an estimated 40 percent, is nearly double that of its nearest competitor, Research in Motion, maker of the BlackBerry.“A Visualized Look at the Estimated Revenues of the Top Cell Phone Manufacturers,” iSmashPhone, August 11, 2009, www.ismashphone.com/2009/08/a-visualized-look-at-the-estimated-revenues-of-the-top-cell-phone-manufacturers.html (accessed September 27, 2010).
If you were a competitor in the cell phone industry, you’d be sorely tempted to try to duplicate Apple’s success. After all, if it only costs \$187.51 to make an iPhone, and you could sell it for a \$320 profit, why not just make something that looks a lot like an iPhone? Behold the Air Phone No. 4 (Figure 9.1.2 "Air Phone 4"). Released in 2010, the Air Phone is made by a little-known Chinese manufacturer and looks virtually identical to the iPhone 4. It lacks many of the features of the iPhone 4 and does not run on the iPhone’s software platform, but at approximately \$150 in online stores, it is proving to be a popular alternative to the iPhone.
The reason that companies like Motorola and Nokia don’t simply use the bill of material generated by iSuppli to make their own iPhones, of course, is that it’s illegal. The BOM only lists the component costs to Apple; it does not capture the amount of money Apple spent in developing the product through the R&D process. The years of software and hardware development that Apple undertook to create the iPhone involve labor, just as building a skyscraper involves labor. In Apple’s case, the product of its labor is not a skyscraper or other tangible property—it is intangible property known broadly as intellectual property, or IP. The law protects Apple’s IP just as it protects tangible things from being stolen, so any attempt by a competitor to make an iPhone clone would fail even if the technical ability to do so exists. To be legally sold in the United States, the Air Phone must be different enough from the iPhone that it doesn’t actually infringe, or step on, any of Apple’s intellectual property rights in the iPhone.
In this chapter, we’ll discuss how the law protects IP. We’ll begin by examining how IP has been a part of the country’s foundation from its very beginning. We’ll then discuss the four major types of IP protected by the law: patents, trade secrets, trademarks, and copyright. By the end of this chapter, you’ll understand the value that IP plays in a modern economy, the challenges that companies face in doing business in countries that don’t value IP, and the devastating impact that IP infringement (including the downloading of music and movies by college students) has on copyright content holders. You’ll also be able to distinguish among the various types of IP protection and how they are similar to, and differ from, each other.
Key Takeaways
Companies (such as Apple) invest tremendous resources in developing exciting and innovative new products and services. Reverse engineering means that it would be easy for competitors to quickly figure out how these new products are manufactured, and then copy them. Intellectual property law prevents this from happening and in doing so provides incentive for individuals and companies to create and innovate. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/09%3A_Intellectual_Property/9.01%3A_Introduction.txt |
Learning Objectives
• Understand the constitutional roots for providing legal protection to intellectual property.
• Explore the tension between content producers and the public good, and how Congress resolves this tension.
Anyone alive when the U.S. Constitution was adopted would be surprised at the size and scope of the U.S. federal government today. What would not surprise them, however, is the existence of the U.S. Patent and Trademark Office (USPTO), since the establishment of a system to protect patents is one of those few congressional powers enumerated in Article I, Section 8 of the Constitution. That clause, known as the Copyright Clause, says that Congress may “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Keep the keywords of this clause in mind, as we’ll come back to them later: “promote progress,” “limited times,” and “exclusive.”
Hyperlink: Patent and Trademark Database
The USPTO Web site is a treasure trove of information as it includes a searchable database for trademarks and patents. See if you can search these databases for well-known trademarks or patents.
http://www.uspto.gov
Although the Constitution addresses only copyrights and patents, modern intellectual property (IP) law also includes trademarks (probably left out of the Constitution because of the relative unimportance of corporations and branding at the time) and trade secrets (a relatively new form of IP protection). Unlike other controversial portions of the Constitution, such as state rights and the role of the judiciary, the value of laws that protected authors and inventors was well accepted in 1787, when inventions of new machines were shaping up to be part of the fabric of the new country. Indeed, the attendees at the Constitutional Convention took a break from their work to watch the first steamship in the Delaware River. One of the first patents granted was to Abraham Lincoln, who drew on his experience as a young man making his way from Indiana to New Orleans along the Ohio and Mississippi rivers on a flatboat to devise a system to lift and drop boats over shallow water without dropping off their cargo. A scale model of his invention is on display at the Smithsonian (Figure \(1\)). Lincoln, who many historians described as mechanically inclined and fascinated by engineering, felt that the patent system added “fuel of interest to the fire of genius.”
Essentially, the Copyright Clause permits (even commands) the federal government to protect certain products of the mind, just as much as it protects personal land or money. If someone trespasses on your property, you can call the police and have them removed or you can sue them in court for damages. In either case, the full force and power of government is involved. The same thing can be said about IP. On the other hand, you know from your economics classes that, in general, our capitalist economy frowns on monopolies. We believe that monopolies are immune from competitive pressures and can, therefore, charge exorbitant prices without any regard to the quality of their product. Efficiency suffers when monopolies are allowed to exist, and ultimately the consumer loses in choice and price. If you think about it, though, the Copyright Clause essentially allows the government to create a special kind of monopoly around IP. Take, for example, a pharmaceutical company that invents a certain kind of drug and applies for a patent on that drug. If the government grants the patent, then the company can charge as much as it wants (some drugs can cost tens of thousands of dollars per year for consumers) without any regard for competitors, since competitors are shut out of that drug market by virtue of the patent. If any competitor dares to copy the drug to compete against the inventing company, the full force and weight of the government will be brought down on the competitor. Violations of patent law carry extremely stiff penalties.
How can we say that monopolies are bad, and yet grant Constitutional protection to monopolies on IP? The answer lies in the genius of the Copyright Clause itself. As in all monopolies, there are two sides: the producer and the consumer. The producer always wants the monopoly to last as long as possible, while the consumer wants the monopoly to end as quickly as possible. The Copyright Clause strikes a compromise between the producer and the consumer in two ways.
First, the Clause states that Congress can grant the monopoly only to “promote the progress of Science and Useful Arts.” In other words, the monopoly exists for a specific purpose. Note that “making Beyoncé rich” or “allowing Pfizer to make billions of dollars” is not the purpose. Rather, the purpose is progress. Granting monopolies can encourage progress by providing a financial incentive to producers. Singers, songwriters, inventors, drug companies, manufacturers—they all invent and innovate in the hope of making money. If they knew that the law wouldn’t protect what they came up with, they’d either not invent at all or they’d simply do it for themselves and their families, without sharing the fruits of their labor with the rest of society.
Second, the clause states whatever monopoly Congress grants has to be for a “limited time.” In other words, at some point the monopoly will end. When the monopoly ends, science is once again progressed because then society can freely copy and improve upon the producer’s products. Society benefits greatly from the expiration of these IP monopolies. Important drugs such as aspirin and penicillin, for example, can now be purchased for pennies and are accessible to the entire human population. Grand literary works, such as Shakespeare’s Hamlet or Beethoven’s Fifth Symphony, can be performed and enjoyed by anyone at any time without seeking permission or paying any fees or royalties. These inventions and works are in the public domain, to be enjoyed by all of us.
The Copyright Clause does not state how long the monopoly can last; it leaves that task to Congress. Congress must make the decision based on what’s best to promote progress. Remember, though, that producers want monopolies to last as long as possible. For example, consider how long copyrights last. Since 1976 copyrights have lasted for fifty years after the death of the author. After that, copyrighted works fall into the public domain (such as works by Shakespeare or Beethoven). In 1998, however, Congress began considering adding an extra twenty years to that term, for a total of seventy years after the author’s death. In the early part of the twentieth century, the United States experienced a cultural renaissance that accompanied the Industrial Revolution. The invention of the phonograph and cameras allowed the creative genius of Walt Disney, George Gershwin, and Charlie Chaplin (to name a few) to flourish. Under the 1976 copyright law, though, some of these early works (including early versions of Winnie the Pooh) were about to fall into the public domain by 1998. The United States was also under some pressure from international trading partners to increase the copyright term.
Video Clip: United Airlines Commercial
(click to see video)
As a result of these pressures, U.S. Representative Sonny Bono (himself a popular artist together with his former wife Cher) introduced the Copyright Term Extension Act to add twenty years to copyrights. During hearings on this bill, Congress heard testimony from Jack Valenti, then president of the Motion Picture Association of America, an industry group that represents film studios and corporations. When asked how long he thought copyrights should last, he answered “Forever minus a day.” Although Sonny Bono’s bill passed, whether or not “forever minus a day” will eventually become the law as Congress seeks to strike the right balance between protection and access and whether it satisfies the Constitution’s demand that the monopoly last for a “limited” time remain unresolved questions.
Key Takeaways
The Constitution commands Congress to provide monopoly protection for intellectual property, but only for purposes of progressing science and useful arts, and only for a limited time. Content producers will always want legal protection to last as long as possible to maximize profits, while the public good benefits when content falls into the public domain. Congress is under intense pressure to resolve this tension.
Exercise \(1\)
1. Why do you think the Founding Fathers decided to empower Congress to protect intellectual property, but only for a limited time?
2. How likely do you think it is that Congress may extend the term for copyright protection again in the future? Why? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/09%3A_Intellectual_Property/9.02%3A_Constitutional_Roots.txt |
Learning Objectives
• Understand what a patent is, as well as the different types of patents that exist.
• Learn the criteria required for an item to be patentable.
• Explore controversial issues surrounding patents.
• Examine patent infringement and its consequences.
• Understand boundaries and limitations on patent rights.
Imagine that you invented the Apple iPhone 4. If you invent a patentable item that is useful, new, and nonobvious, and if you are capable of describing it in clear and definite terms, you may wish to protect your invention by obtaining a patent. A patent grants property rights to the inventor for a specified period of time, with a utility patent and a plant patent expiring twenty years following the original patent application and a design patent expiring fourteen years afterward. A patentee owns a patent.
However, if you invented the Apple iPhone 4 while employed to perform creative and inventive work, then any patents obtained with respect to your work would be assigned to your employer. Many inventors and designers work for employers in creative and inventive capacities. This arrangement allows innovative ideas to be adequately funded in trade for the property rights resulting from patents granted to those inventions.
Three patent types exist. Utility patents may be granted for machines, processes, articles of manufacture, compositions of matter, or for improvements to any of those items. The Apple iPhone 4 certainly is the subject of utility patents. A design patent may be granted for ornamental designs for an article of manufacture. A plant patent covers inventions or discoveries of asexually reproduced plants (e.g., plants produced through methods such as grafting).
Not all items are patentable. For instance, an idea alone (without a definite description) cannot be patented. So even if you dreamed up the idea of something that looked and functioned exactly like the Apple iPhone 4, you would not have been eligible for a patent on your idea alone. Likewise, physical phenomena, the laws of nature, abstract ideas, and artistic works cannot be patented. Note, however, that artistic works can be copyright protected. Additionally, otherwise patentable subjects that are not useful, or items that are offensive to public morality, are not patentable.
So what does it mean to have a patent? Just like real property ownership, a patent confers the right to exclude others. If you owned a parcel of real property, your ownership interest would allow you to exclude others from your land. The rule of law would protect your right to exclude against the intrusions of others, which is the very essence of ownership. Likewise, a patent confers the legal right to exclude others from making, using, or selling the patented product. This is consistent with the Copyright Clause of the U.S. Constitution, which grants inventors the “exclusive Right to their…Discoveries.” For others to legally make, use, or sell the patented product, they would have to be granted permission by the patentee. This is often accomplished through a licensing agreement, in which the patentee authorizes others to sell, make, or use the product.
For instance, some genetically modified agricultural products are the subjects of utility patents. Monsanto Company patented Genuity Bollgard II Cotton, designed to resist worm damage, which can be a devastating problem for cotton farmers. This product reduces the need for farmers to spray insecticide. Patentees, such as Monsanto Company, hold many patents on agricultural products such as cotton, soybeans, canola, and corn. In the United States these patents typically protect new plant breeds as well as parts of the plants. In contrast, some countries, such as Canada, do not permit the patenting of life forms. In countries where the patenting of whole life forms is prohibited, the patents typically protect the genetically modified parts of the life form, such as the genes and the cells, as well as the process for inserting the genes into the cells.
Do genetically modified plants meet the threshold requirements to be the subject of a patent? Remember that to be a patentable item, the invention must be useful, new, and nonobvious. Genetically modified plants are useful because they possess some particular quality for which they were designed. For example, Genuity Bollgard II Cotton resists many types of damaging worms while reducing the need for farmers to use insecticide, and so this invention can be said to be useful. Likewise, some patented genetically modified agricultural products are resistant to herbicides, such as Monsanto Company’s Roundup Ready line of agricultural products. Roundup Ready products are resistant to an herbicide known as glyphosate, which is the main active ingredient in the herbicide line marketed by the Monsanto Company under the Roundup brand. These are also useful inventions, because farmers that plant those patented herbicide-resistant products do not have to wait to plant their crops until their fields are cleared of weeds. They can plant their crops before they spray herbicides because the genetically modified crops will resist the herbicide and continue to grow. This allows the farmers to put their land to use for longer periods of time and with more confidence that they can kill weeds without damaging their crops. They can do so using inexpensive methods such as by spraying herbicides, rather than hand-weeding, which is very labor intensive.
Genetically modified plants are new and entitled to be patented when no one else has applied for a patent for that particular invention. If, for example, some other company had invented the same product that eventually became known as Genuity Bollgard II Cotton before the Monsanto Company had invented that product, then the Monsanto Company would not have been permitted to patent that product, even if it had independently invented that product with no knowledge of the other invention. In this way, we can see that patents are granted in the United States by the “first to invent” rule. Many other countries follow the “first to file” rule, which means that the first applicant to file for a patent on a particular invention is eligible for the patent, regardless of who first invented it. There are legal movements to amend the U.S. Patent Act to change from “first to invent” to “first to file,” but no amendment has yet been passed.
Genetically modified plants are nonobvious inventions if they are different from what has been used before, so that someone with ordinary skill in genetically modified plant technology would not find the new invention to be obvious. For example, if the “new” invention only changed the color of one tiny cell in the entire plant, that would probably not be a patentable invention.
You might be wondering how a patent can be granted over a living thing, like a plant. As mentioned earlier in this section, in the United States living things are patentable. Living things became the legal subjects of patents when, in 1980, the U.S. Supreme Court held that a bacterium designed by its inventor to break down crude oil components was the legitimate object of a patent.Diamond v. Chakrabarty, 447 U.S. 303 (1980). Indeed, as the Supreme Court noted in that case, congressional intent regarding the U.S. Patent Act was that “anything under the sun that is made by man” is patentable. Since then, we have seen many living organisms patented. For example, the OncoMouse was among the first patented mammals. The OncoMouse is useful in medical research for its extreme propensity to develop cancer.
The patentability of life forms is a contentious issue. While the usefulness of such inventions is proven (or else they would not be patentable inventions), ethical questions abound. For example, when considering the OncoMouse, legitimate questions include whether intentionally creating life to experience pain, sickness, and medical procedures is ethical. Moreover, many people find the idea of “creating” life in a laboratory morally repugnant, as well as owning the products of that creation. Many fear a slippery slope: Today a mouse; tomorrow, a human? Of course, humans are not patentable subjects today, but the slippery slope argument often arises in such discussions. With respect to genetically modified agricultural products, many people question the wisdom of placing control and ownership over items essential to life—like staple crop seeds—into the hands of few, especially when money must be traded for the rights to use those products. This issue is particularly complicated given the fact that genetically modified agricultural products may cross-pollinate with nongenetically modified agricultural products, resulting in progeny that contains the genes or cells that are patented. When this happens, courts routinely recognize that the patentee has the rights to those progeny by virtue of their patent ownership and that the unwitting possessor of those progeny has, in fact, committed patent infringement by being in possession of those patented products without permission.
Another controversial issue surrounds the patents granted to pharmaceutical drugs. Large drug companies rely on patent law to protect their massive investment in research and development into new drugs, the vast majority of which never make it to market. For the few drugs that eventually find government approval and commercial success, manufacturers seek to extract the highest possible price during the period of patent monopoly. For example, the introduction of antiretroviral drugs has greatly extended the lives of HIV/AIDS patients, but the drugs cost between \$10,000 and \$12,000 per year in the United States. In many developing countries in Asia and Africa, the drugs would make a dramatic impact on human life. Some governments have therefore declared national health emergencies, a procedure under international treaties that permits those governments to force drug companies to license the formula to generic drugmakers (this is called compulsory licensing). Cipla, a generic drug manufacturer in India, manufactures the same antiretrovirals for about \$350 a year, or less than one dollar a day.
The U.S. Patent and Trademark Office (USPTO) grants property rights to patentees within the United States, its territories and possessions. Patent law is complicated, and attorneys who wish to prosecute patents (file and interact with the USPTO) must have an engineering or science background and pass a separate patent bar exam. When an application is filed, the USPTO assigns a patent examiner to decide whether the patent application should be approved. While the application is pending, the applicant is permitted to use the term “patent pending” in marketing the product to warn others that a patent claim has been filed. Even after a patent has been issued by the USPTO, however, the patent is merely “presumed” to be valid. If someone challenges a patent in a lawsuit, final validity rests with the U.S. federal courts. For decades, the U.S. Supreme Court routinely ignored patent appeals, allowing lower courts to develop patent law. In recent years, under Chief Justice John Roberts, the Supreme Court has dramatically increased its acceptance of patent disputes, perhaps as a sign that the Court believes too many patents have been issued.
In the last decade, there has been an over 400 percent increase in the number of patents filed, resulting in a multiyear delay in processing applications. An increase in the number of business method patents contributed to this dramatic increase in patent applications. A business method patent seeks to monopolize a new way of conducting a business process. Figure \(1\), for example, describes a method of e-commerce by which a customer can order an item and pay for it immediately with just one click of a mouse button. This one-click patent was granted to Amazon.com, much to the chagrin of other online retailers such as Barnes & Noble, who were prohibited from using a similar checkout mechanism. Amazon licensed the patent to Apple so that it could feature one-click on its Web site.
Outside the United States, a patent granted by the USPTO does not protect the inventor’s interest in that property. Other steps must be taken by the inventor to protect those rights internationally. If someone possesses the patented object without permission from the patentee, then the possessor can be said to have infringed on the patent owner’s rights. Patent infringement is an actionable claim. A successful action may result in an injunction, treble damages, costs, and attorney’s fees. One defense to a patent infringement claim is to challenge the validity of the patent.
Hyperlink: Wal-Mart Tries to Produce Shoes
Nike recently sued Wal-Mart stores for selling a shoe that Nike claims infringes on its patents. The shoe sold by Wal-Mart uses technology similar to Nike’s Shox technology. Look at Nike’s complaint here: http://online.wsj.com/public/resources/documents/nikepatentsuit.pdf
Do you think that Nike has a good claim? What should Wal-Mart’s defense be?
In recent years several companies that do nothing but sue other companies for patent infringement have emerged. These patent-holding companies, sometimes called patent trolls by critics, specialize in purchasing patents from companies that are no longer interested in owning them and then finding potential infringers. One such company, NTP, sued Research in Motion (RIM), the maker of the BlackBerry device, for a key technology used to deliver the BlackBerry’s push e-mail feature. Faced with a potential shutdown of the service, RIM decided to settle the case for more than six hundred million dollars.
Exercise \(1\)
1. Do you think that life forms should be the subjects of patents? Does your answer change depending on whether we are talking about bacteria, plants, animals, or humans? What are the most persuasive arguments in favor of, and against, allowing the patentability of higher life forms?
2. How do patent rights encourage innovation?
3. If patents are protected monopolies, why do you think patent applications are a matter of public record?
4. Do you agree with compulsory licensing of life-saving medications in response to national health emergencies? What are the consequences of compulsory licensing to the patentee? To the people in need of these medications in wealthy countries? To the people in need of these medications in poor countries? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/09%3A_Intellectual_Property/9.03%3A_Patents.txt |
Learning Objectives
• Understand what a trade secret is.
• Learn the differences between trade secret and patent protection.
• Learn how trade secrets may be lawfully discovered.
• Explore the concept of misappropriation and the legal consequences.
Imagine that you are in an antique store and find a nineteenth-century ledger book for sale, originally from the W. B. Morrison & Co. Old Corner Drug Store in Waco, Texas. Among the recipes for hair restorers and cough syrups, something in particular catches your eye—a recipe entitled D Peppers Pepsin Bitters. What if you also knew that Dr. Pepper was first created and served in that very drugstore? What if you offered to pay two hundred dollars for the old ledger book, even though if it did contain the recipe for Dr. Pepper, it would be worth far more? After all, according to the company that manufactures Dr. Pepper, only three people know the recipe to that very closely guarded trade secret. Something very similar to this happened to Bill Waters. He found the ledger book in an antique store, and he paid two hundred dollars for it. However, at the time, he did not know that the book might date back to the exact time and place from which the popular soda was created. In fact, he did not even notice the recipe until later, and it took him several more days to recognize the possibility that it might be an early version of Dr. Pepper.
Unlike patents, a trade secret can last forever. That is, it can last forever if the owner of the secret can, well, keep it a secret. If someone uses lawful means to uncover the secret, then the secret is no longer protected by the secret’s owners. Does this include reverse engineering? Yes. Reverse engineering is an absolutely legal means of discovering a trade secret. What about ferreting out secrets from an employer’s safekeeping, while employed and under a binding confidentiality agreement? No. That is an actionable claim for misappropriation, and the secret’s owners can pursue damages.
Trade secrets are unlike patents in another important way. With a patent, the inventor must specifically disclose the details of the invention when applying for a patent. This means that the inventor has not protected the secret of the invention. However, in exchange for this disclosure, a patent owner has a legal monopoly over the property for a specified period of time. So even if others discover the secret of the invention (not a difficult task since patent applications are public record), they are prohibited from making, using, or selling it without the patentee’s permission. After the patent expires, then the patentee no longer has a property right to exclude others.
So what is a trade secret? It is, in short, secret information. This information may include a process, formula, pattern, program, device, method, technique, or compilation. For many companies, lists of suppliers, costs, margins, and customers are all trade secrets. Soft drink recipes, KFC’s eleven spices, the donut mix sent to Krispy Kreme franchisees, the Big Mac’s special sauce, and even the combination of wood that is used in the burning process to make Budweiser beer are all trade secrets. Additionally, the information derives actual or potential economic value from being a secret that is not readily discoverable by others, and the information is the subject of efforts to keep it a secret. While most states have adopted the Uniform Trade Secrets Act (UTSA), not all have, so the definition of trade secret can vary by jurisdiction. Unlike patents, trademarks, and copyrights, there is no federal law protecting trade secrets.
A claim for misappropriation may be brought when a trade secret has been wrongfully obtained, such as through corporate espionage or bribery. Generally, according to the UTSA, misappropriation occurs if the secret was acquired by improper means, or if the secret was disclosed or used without permission from the secret’s owner. Damages may include actual loss and unjust enrichment not captured by actual loss. Additionally, in cases of willful or malicious misappropriation, double damages may be awarded, as well as attorney’s fees.
So what if you are never lucky enough to discover a multimillion-dollar secret recipe hidden away in an antique shop? As long as the recipe is not patented, you can try to reverse engineer it. If you succeed, you can use it immediately. However, if you are working for an employer in a creative capacity, working with others to develop the secret, and if you have agreed not to use trade secrets, then the right to the trade secret will belong to your employer, at least in most jurisdictions. Ask Peter Taborsky, an undergraduate student at South Florida University in 1988. According to Taborsky, while working in the university’s chemical engineering lab, he began conducting experiments on his own. He discovered a highly effective method for treating sewage. The university demanded that he hand over his notebooks that contained the secrets of this invention. Taborsky refused and filed for a patent for his invention, which he received. However, the university pressed criminal charges for stealing trade secrets. Taborsky lost his case and found himself in a maximum-security facility working on a chain gang.
So does Bill Waters need to worry about Dr. Pepper’s owners suing him for misappropriation or pressing criminal charges for stealing trade secrets? No. He lawfully obtained the ledger book by purchasing it in the open market. Additionally, according to a company spokesman, the ingredient list under D Peppers Pepsin Bitters is most likely an old remedy for a stomachache rather than any version of the recipe for Dr. Pepper. Even if Mr. Waters had accidentally stumbled on the exact Dr. Pepper recipe, he would have a good argument that the company did not take steps to keep the secret a secret. If it had, he could argue, the company never would have allowed the recipe out of its sight.
Key Takeaways
Trade secrets last forever if the owner of the secret keeps the secret. However, if someone else discovers the secret through a lawful method, then the owner of the secret has no right to exclude others from using the secret. Unlawfully obtaining a trade secret is called misappropriation, which is an actionable claim. The Uniform Trade Secret Act has been adopted by most (but not all) states, so different jurisdictions have different rules of law concerning trade secrets.
Exercise \(1\)
1. If you owned a trade secret, what methods would you employ to protect it?
2. If you invented something that was patentable or the subject of a trade secret, what types of issues would you consider when deciding whether or not to apply for a patent? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/09%3A_Intellectual_Property/9.04%3A_Trade_Secrets.txt |
Learning Objectives
• Understand what a trademark is.
• Learn what can and cannot be trademarked.
• Explore how companies protect trademarks from dilution and genericide.
• Examine how the Internet poses new challenges to trademark owners.
• Explore the tension between trademark protection and free speech.
Look at Figure 9.5.1 "McDonald’s, One of the Most Recognized Trademarks in the World". It’s obviously a McDonald’s restaurant, but can you tell where this restaurant is? Is it in a mall or airport? Is it in Trenton, Toronto, or Tokyo (or, as it turns out, Messestadt Riem in Germany)? Without additional information, it may be impossible to tell. And yet, no matter where you are in the world, if you enter this McDonald’s restaurant, there are certain standards that you expect. You would expect to find a Big Mac on the menu, perhaps Chicken McNuggets and french fries too. You would expect those menu items to taste the same as they do in your local McDonald’s. Perhaps you’d expect a certain level of service from the employees, a certain value proposition for your money, a certain look from the uniform and fixtures, or perhaps a clean restroom. If you walked into this McDonald’s restaurant and found out that it was in fact not McDonald’s, you might be confused. The ultimate goal of trademark law is to prevent this consumer confusion. To prevent any other restaurant from using the name McDonald’s, or from using a logo that looks like a stylized “M,” McDonald’s can trademark both its name and logo (and a lot of other elements of its brand as well). In this section, we’ll examine how trademark law accomplishes this goal.
A trademark is any kind of name, logo, motto, device, sound, color, or look that identifies the origin of a particular good or service. Something begins to look like a trademark when a consumer identifies it with a particular origin. For example, someone buying a Diet Coke knows that he or she is getting a carbonated beverage from the Coca-Cola Company. If he or she bought a Diet Cola, on the other hand, there’s no association in the mind with any particular company, so it could be from Coca-Cola, Pepsi, or any number of other companies. The key is that consumer identification with a specific origin. If a consumer thinks of a class of goods rather than one specific origin, then it’s not a trademark. So, for example, when a consumer hears “aspirin,” he or she thinks of a class of goods with no particular origin because aspirin is not a trademark. But if a consumer hears “Bayer,” he or she thinks of a specific aspirin from a specific source, making “Bayer” a trademark.
Hyperlink
www.uspto.gov/go/kids/kidsound.html
Can sounds be trademarked? Yes! Some sounds are instantly recognizable, such as AOL’s “You’ve Got Mail” and Twentieth Century Fox’s movie opening scene. Click the link to explore other trademarked sounds.
A federal law, the Lanham Act, protects trademarks. Unlike copyrights and patents, trademarks can last forever and are not subject to the Constitution’s “limited time” restriction. Since the objective of trademark law is to prevent consumer confusion, the public good is best served by allowing companies to maintain their trademarks as long as consumers associate a trademark with a specific origin. The moment they no longer make that association, however, the trademark ceases to exist.
If you are considering marketing as a career, you will become intimately familiar with the concepts related to branding and the value of branding. At its core, marketing involves the science of relating to consumers, telling them an authentic story about your product and service, and satisfying their wants and needs. Having a brand is essential to carrying out this objective, and it can lead to startling profits. The Apple and iPhone brands, for example, are very strong and yield billions of dollars in profits for Apple. Luxury brands are particularly aware of this phenomenon, as often their brand alone can justify pricing far above a similar good. Gucci, such as this store in Hong Kong (Figure 9.5.2 "Gucci Store in Hong Kong"), trades on the value of its brand to command premium prices (and margins) in the marketplace. Brands such as Rolex, Hermes, Rolls-Royce, and Bentley have similar business models. These brands are all trademarks—indeed, all brands are either registered trademarks or are trademark-able because they share the common feature of consumer identification. Be careful, though. “Trademark” and “brand” are not interchangeable terms because not all trademarks are brands.
So what can be a trademark? Obviously, words can be trademarked. When it comes to trademarks, distinctiveness is good. Therefore, an invented word is the best type of trademark. In 1997, for example, when Stanford grad students Larry Page and Sergey Brin were brainstorming names for their new Internet search engine, they settled on the word “Google,” a play on “googol,” which means 1 followed by 100 zeroes. They felt the name reflected their goal to organize the staggering amount of information available on the Internet. On the other hand, regular words can also become trademarks, as long as consumers identify them with a particular source. Amazon, for example, is the name of the world’s longest river, but it’s also the name of an online retailer. Since consumers now identify Amazon.com as an online retailer, the name can be trademarked. Another example is the phrase “You’re Fired” when used in a television program. The phrase was made popular by billionaire Donald Trump and has such lasting recognition now that it’s unlikely any other television show could use that phrase as a central part of its theme.
Consider what would happen if you tried to trademark your name. If your name happens to be Sam Smith, you’d probably have a pretty hard time getting a trademark for your name. If, however, you called your business Sam Smith anyway and started growing your business so that eventually, over time, consumers began to identify “Sam Smith” as your business, then your name has acquired a secondary meaning and can be trademarked. Thus, Sam Adams is a trademark for a beer, Ben & Jerry’s is a trademark for ice cream, and Ford is a trademark for a motor vehicle.
Hyperlink
http://www.npr.org/templates/story/story.php?storyId=19227066
Can a sportscaster trademark the phrase “Are you ready to rumble”? Can Paris Hilton trademark the phrase “That’s hot”? As long as the public associates these phrases with a distinctive origin, the answer is yes. Listen to this National Public Radio broadcast for more examples.
Note that when you get a trademark, it’s typically granted for a specific category of goods. The same name can sometimes be used for multiple categories of goods. The name Delta, for example, is a trademark for both an airline and a brand of faucets. Since there is little chance that a consumer will be confused by an airline or faucet brand, trademark law allows these dual registrations. On the other hand, some brands are so strong that they would probably stop registration even for a completely different category of goods. McDonald’s is a good example of this. The McDonald’s trademark is one of the strongest in the world, meaning that it is instantly recognizable. In 1988, for example, hotel chain Quality Inns decided to launch a new line of budget motels called “McSleep.” McDonald’s sued, claiming trademark infringement. McDonald’s claimed that consumers might be confused and believe that McDonald’s owned the hotel chain. A federal judge agreed and ordered Quality Inns to change the name of the chain, which it did, to Sleep Inns.
Trademarks go beyond simply a company’s name or its logo. A color can be trademarked if it’s strong enough to create consumer identification. Pink, for example, is trademarked when used for building insulation by Owens Corning. All other insulation manufacturers must use different colors. Sounds can be trademarked too, such as MGM Studios’ “lion’s roar.” Even a certain “look” can be trademarked if a consumer identifies it with a certain origin. Thus, the distinctive colors, materials, textures, and signage of a Starbucks or T.G.I. Friday’s are considered trade dress and cannot be copied. A bottle shape can be considered trade dress, too, such as the shape of a nail polish bottle (Figure 9.5.3 "OPI’s Nail Polish Bottle"). OPI, a nail polish manufacturer, has registered this bottle shape with the U.S. Patent and Trademark Office (USPTO) and is suing other manufacturers that use a similarly designed bottle. Interestingly, courts have been reluctant to grant certain smells trademark protection, even though it can be argued that certain fragrances such as Old Spice or CK One are distinctive. Imagine the chaos that would ensue if one company claimed trademark protection for vanilla or strawberry scents—consumers would ultimately be robbed of choice if that were to happen.
A trademark is not limited to a name or logo used to sell goods. If a company provides a service (as opposed to selling goods), it too can receive trademark protection. In this case, it’s called a service mark. Facebook, for example, is a service mark. A trademark can also be used to demonstrate certification meeting certain standards, such as the Good Housekeeping Seal of Approval. If you study operations management, you’ll learn about the International Organization for Standardization (ISO) and its various standards for quality management (ISO 9000) or environmental quality (ISO 14000). The Forest Stewardship Council (FSC) allows its logo to be used on paper products that come from sustainable forests, while certain foods can be labeled “Organic” or “Fair Trade” if they meet certain standards as established by governmental or nongovernmental organizations. Each of these marks is an example of a certification mark. Finally, a mark can represent membership in an organization, such as the National Football League, Girl Scouts of America, Chartered Financial Analyst, or Realtor (Figure 9.5.4 "“Realtor” Certification Mark"). Each of these is known as a collective mark. The rules that apply to trademarks apply equally to service marks, collective marks, and certification marks.
If a color or sound can be trademarked, is there anything that cannot be trademarked? The Lanham Act excludes a few categories from trademark registration, mainly for public policy purposes. Obviously, trademarks will not be granted if they are similar or identical to a trademark already granted. If you’re starting a new company, it’s a good idea to make sure that not only is a domain name available for your company’s name, but that the name isn’t already trademarked by someone else. Trademarks also cannot contain the U.S. flag, any government symbol (such as the White House or Capitol buildings), or anything immoral. Trademarks cannot be merely descriptive. (Thus every restaurant is allowed to offer a “Kid’s Meal,” but only McDonald’s can offer a “Happy Meal.”)
Whether or not a region can be trademarked (a geographic indicator, or GI) is the subject of some controversy, especially with our trading partners. “Maine Lobster,” “Napa Valley Wine,” or “Florida Orange Juice,” for example, may indicate to some consumers the origin of a particular lobster or bottle of wine or orange juice, and thus may be of commercial value to distinguish the product from competitors from other regions. For the time being, these foods must come from Maine, California, or Florida to avoid liability under consumer protection statutes for fraud (lying) about their origin. What happens, though, if consumers lose the association with the region? For years, sparkling wine manufacturers in Champagne, France, have fought to prevent this from happening by requiring that only sparkling wine made in the Champagne region be called “champagne.” Now, food producers (especially in the European Union) are seeking similar protection under international trademark law for Feta, Parmesan, Gorgonzola, Asiago, and hundreds of other names.
A trademark is valid as long as consumers believe that the mark is associated with a specific producer or origin. If the mark refers to a class of goods instead, then the trademark can no longer exist. This process is called genericide. Many words today once started as trademarks: furnace, aspirin, escalator, thermos, asphalt, zipper, softsoap, cellophane, lite beer, Q-tip, and yo-yo are all examples of trademarks that are now generic and have therefore lost legal protection. To prevent genericide from occurring, trademark owners must take active steps, often costing millions of dollars, to educate consumers on the importance of using their trademarks properly and to prosecute infringers. For example, when you hear the word “Kleenex,” do you think of a brand of tissue owned by Kimberly-Clark, or do you think of tissues generally? Does “Rollerblade” refer to a brand of in-line skates, or to all in-line skates? In Southern states, does “Coke” refer to a Coca-Cola, or to soft drinks generally? When you run a “Xerox” photocopy, is it on a Xerox photocopier or some other machine? These trademarks, all currently active and worth billions of dollars to their owners, are in danger of becoming generic in the United States. If that happens, the companies will lose control of the marks and the public (and competitors) will be free to use those words just as they use “aspirin” and “yo-yo” today. Xerox has taken many steps to educate the public about its trademark, including running print advertisements in business periodicals. In one of these ads, the text says, “When you use ‘Xerox’ the way you use ‘aspirin,’ we get a headache.”
Trademark infringement occurs when someone uses someone else’s mark, either completely or to a substantial degree, when marketing goods or services, without the permission of the mark’s owner. Obviously, making your own pair of jeans and slapping a “Levi’s” label on it, or making your own handbag and sewing a “Coach” label on it, constitutes trademark infringement. When Apple first released the iPhone, to its embarrassment it found out that “iPhone” was already a registered trademark belonging to Cisco, another company, for a phone used for placing phone calls over the Internet. To avoid trademark infringement liability, Apple had to pay Cisco an undisclosed sum to purchase the trademark. Ford found itself in a similar situation when it released a supercar called the “Ford GT.” Ford made a similar racing car in the 1960s called the “GT 40” but lost control of the trademark after production ceased. Unable to reach agreement with the current trademark owners, Ford settled for releasing the new car as simply the “GT.”
The law also permits trademark owners to sue infringers who use their marks to a substantial degree. For example, when Samsung announced its new smart phone, the Black Jack, the makers of the BlackBerry device sued for trademark infringement. When a software company released a product to eliminate unwanted e-mails called “Spam Arrest,” it was sued by Hormel, makers of Spam canned luncheon meat. When a small coffee shop in Syracuse, New York, opened as “Federal Espresso,” the shipping company FedEx filed a trademark infringement claim.
Even if a trademark owner doesn’t believe a similar use of its mark would lead to any consumer confusion, it can protect its trademark through a concept called dilution. Such was the case when an adult novelty store in Kentucky opened as “Victor’s Secret” (the owner’s name was Victor). The trademark owners of “Victoria’s Secret” filed a dilution suit in response. Traditionally, trademarks are intended to prevent consumer confusion. Dilution permits a trademark owner to stop usage of a similar word or phrase even if consumers aren’t confused. Under dilution concepts, the trademark owner only needs to show that its mark will be diluted or tarnished in some way.
Dilution is controversial in trademark law. When Congress passed the first dilution law in 1995, the Federal Trademark Dilution Act, many felt that Congress had gone too far in protecting trademarks, to the detriment of the public and small businesses. For one thing, the Act only protected “famous” trademarks. It also failed to clearly define “dilution,” and what was required for trademark owners to win a lawsuit. Finally, when the Victor’s Secret case reached the Supreme Court, Moseley v. Secret Catalogue, 537 U.S. 418 (2003)[0].[0] the Supreme Court issued some clarification. The Court ruled that to win a dilution case, a trademark owner had to show that it had suffered actual economic damage from the dilution, not merely the “likelihood” of dilution. This is a high standard for trademark owners to meet, because it means that they (1) have to wait for the diluting mark to hit the market and be used in commerce and (2) must be able to prove that they suffered economic damage from the diluting mark. Unhappy with the Court’s decision, corporations lobbied Congress to pass the Trademark Revision Dilution Act of 2006, which overturns the Moseley case. Now, trademark owners of famous trademarks only need to show a likelihood of dilution before filing a dilution lawsuit.
Companies or persons accused of trademark infringement have several defenses to rely on. The most obvious is arguing that no infringement has occurred because the two marks are sufficiently different that consumers won’t be misled. For example, in 2002 Jeep sued General Motors for infringing on what Jeep called its trademark grill. GM’s Hummer division released the H2 that year, with a similar seven-bar grill. A district court held that there was no trademark infringement because the grills were too dissimilar to cause consumer confusion. Look at the Hummer H2 grill (Figure 9.5.5 "Hummer H2 Grill") and the Jeep grill (Figure 9.5.6 "Jeep Grill"). Do you think there is a chance of consumer confusion?
Another defense is fair use. The Lanham Act prohibits the use of someone else’s trademark when selling goods. It’s not uncommon to see various items such as laptop computers, telephones, soda cans, or other foods with their labels covered by stickers or blurred out on television shows and movies because of the trademark law. On the other hand, what if a company wanted to mention a competitor’s product to draw a comparison with its own product? This is called comparative advertising, and it’s considered fair use. Honda, therefore, is free to claim that its “Honda Accord is better than the Ford Taurus” in its advertising even though Ford and Taurus are both trademarks owned by Ford Motor Company.
The First Amendment also recognizes the use of parody, comedy, or satire as fair use. Comedy skits on television that make fun of, or use, company logos are an example of this fair use. Canadian nonprofit Adbusters, for example, claims to be an organization seeking to advance “a new social activist movement in the information age.” Part of its work involves making fun of corporations and consumer spending, sponsoring “Buy Nothing Day” as an antidote to the annual holiday spending season. Making fun of corporations also involves spoofing their commercial messages, as the ad in Figure 9.5.7 "A Parody of the Well-Known Absolut Vodka Print Ads" illustrates. Although the ad undoubtedly infringes on a trademark, it is considered fair use because of the social commentary and satire behind its message.
An interesting aspect of trademark infringement arises through the use of domain names on the Internet. The practice of cybersquatting (or domain name squatting) arises when a company registers a domain name containing a famous trademark in hopes of selling that trademark to its rightful owner for a large profit. The practice arose in the early days of the Internet, when domain name registration took place on a first-come, first-served basis. There is nothing wrong with registering a domain name for a generic word such as “shoes.com,” but incorporating a registered trademark into the domain name, for purposes of selling it later, is considered cybersquatting. This practice was made illegal in 1999 with the passage of the Anticybersquatting Consumer Protection Act. It is only illegal, however, if the domain name is registered to make a profit through later sale. It is not illegal if someone registers the domain name in “good faith.” A good example is the domain name registered by Canadian teenager Mike Rowe in 2003. An avid computer user, he registered “mikerowesoft.com” as a domain name. Software giant Microsoft launched legal proceedings against him, claiming violation of the cybersquatting statute and trademark infringement. Rowe’s defense was that the Web site merely reflected his name and his interest in computer programming and software and was being used for that purpose. After heavy negative publicity, Rowe and Microsoft settled the case with Microsoft taking control of the domain. Another example surrounds the Nissan.com domain. Uzi Nissan, a computer storeowner, had owned the domain for years before Nissan Motors attempted to gain ownership of the domain. Since the domain was registered in good faith, no cybersquatting has occurred. The First Amendment is also a defense to cybersquatting. Web sites run by consumer activists who seek to criticize or parody companies, such as “fordreallysucks.com” or “fordlemon.com” or “peopleofwalmart.com” are not cybersquatting in spite of their use of trademarks.
Key Takeaways
Trademarks are anything that identifies the unique origin or goods or services. Trademarks are granted under federal law by the U.S Patent and Trademark Office and can last forever. When a trademark is no longer associated with a specific origin, it becomes generic and loses legal protection. Trademark owners can take legal action against infringement and dilution of their marks. Fair use of trademarks includes comparative advertising and parody. Trademark protection extends to the Internet, where mark owners can prevent bad faith domain name squatting.
Exercise \(1\)
1. Go to the U.S. Patent and Trademark Office at http://www.uspto.gov. Search the trademark database for the phrase “Let’s Roll.” Do you think that companies should be able to trademark phrases? Can you find other examples?
2. “Netbook” is an example of a term the USPTO recently rejected as being generic, even though it was at one point a registered trademark. Can you think of other recent examples of genericized trademarks?
3. Do you think that the rules of cybersquatting should extend beyond Internet domain names to other uses such as Facebook or Twitter account names? Why or why not? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/09%3A_Intellectual_Property/9.05%3A_Trademarks.txt |
Learning Objectives
• Understand what a copyright is.
• Explore the requirements for copyright protection.
• Learn how copyright owners can license their works for use by others.
• Understand copyright infringement and the fair use defense.
• Understand the Digital Millennium Copyright Act.
The final form of intellectual property (IP) protection is copyright. Like patents and trademarks, federal law protects copyright. Whereas trade secrets protect confidential company information, patents protect processes and inventions, and trademarks protect brands and identity, copyright is designed to protect creativity. It is one of the two types of IP specifically mentioned in the Copyright Clause of the U.S. Constitution. Of course, back then the only works copyrighted would have been songs, art, or works in writing. Today, copyright extends to any form of creative expression, including digital forms.
If asked to write down four numbers from one to fifty in random sequence, most of us would write four different numbers. The process of picking those numbers requires creativity, so the sequence of the four numbers you write down is copyrighted. Note that the numbers themselves aren’t copyrighted, of course. It’s just the unique sequence that you choose, the expression of your creativity, that is copyrighted. Since computer software is a compilation of binary code expressed in 1 and 0, all software is copyrighted. On the other hand, sequential page numbers or listings in a phone directory show no creativity and are therefore not copyrightable. Similarly, if a group of students were given a camera and each was asked to photograph the same subject, each student would come up with a different photograph. Each student would frame the subject differently, and that is an expression of creativity. Finally, consider the notes that you take in class for this course. A group of students could read the same textbook and listen to the same lecture, and come up with different sets of notes. Each work is unique and demonstrates creativity, so each is copyrighted.
A work must be original (not copied) and fixed in a durable medium to be copyrighted. Therefore, if you sing an original song in the shower in the morning and your roommate hears it and records it, the copyright to the song belongs to your roommate, not you. This requirement exists because it would be impossible to prove, without a durable medium, who is the original author of a work. Ideas, by themselves, cannot be copyrighted. If you had an idea for a novel about a boy wizard who goes to a boarding school with his friends and battles evil monsters while growing up, that would not be copyrighted. If you wrote a novel featuring such a story line, however, you would run the risk of violating the copyrighted Harry Potter works. A similar dispute arose in 2006 after the blockbuster success of Dan Brown’s novel, “The Da Vinci Code.” Two authors, Michael Baigent and Richard Leigh, claimed the novel infringed on their copyrighted book, “Holy Blood Holy Grail.” In their book, the authors theorized that Jesus survived his crucifixion, married Mary Magdalene, and had children. The British judge hearing the case dismissed the claims, holding that the theory was “too general or too low a level of abstraction to be capable of protection by copyright law.”Baigent v. Random House Group, http://www.scribd.com/doc/2473519/da-vinci-code-ruling-baigent-v-rhg-0406 (accessed October 2, 2010).
A copyrighted work is automatically copyrighted upon its creation. Unlike patents and trademarks, which must go through an expensive and rigorous application and approval process with the government, authors do not need to send their work to the government for approval. Although it’s a good idea to write “Copyright” or place a © symbol on the work, it’s not legally required.
Copyright protection lasts for seventy years after the death of the author. If there is more than one author, the copyright expires seventy years after the death of the last surviving author. If a company, such as a publisher, owns a copyrighted work, the copyright expires ninety-five years from the date of publication, or one hundred twenty years from the date of creation, whichever comes first. After copyright expires, the work falls into the public domain. The works of Shakespeare, Bach, and Beethoven, for example, are in the public domain. They may be freely recorded, performed, or modified without permission. If you were to record yourself reciting Shakespeare’s “To be or not to be” speech from Hamlet, however, that recording is copyrighted even though the underlying work (Hamlet) is in the public domain as a new creative expression. Classical music recordings are similarly copyrighted under the same concept.
The owner of a copyright may allow members of the public to view or use a copyrighted work, for free or for a fee. This use is contained in a copyright license, sometimes called an End User License Agreement (EULA) for software. A license is essentially permission from the copyright holder to violate the copyright, within the terms of the license. When you purchase a physical book or CD or DVD, for example, the copyright license allows you to view the movie, listen to the music, or read the book, in private. The license does not allow you to show the movie in class to a broad audience, or to record the music into your computer and then modify it, or to run photocopies of the book to give away or sell. These rights of reproduction, exhibition, and sale are not part of the license you received and are reserved by the copyright holder. Of course, you may purchase those rights if you wish, but they will probably cost a lot more than the price of the book or disc. Some organizations advocate the creation of a common license that authors can easily refer to if they wish to distribute their work easily. The General Public License (GPL) for software and Creative Commons (CC) license for text and media are well-known examples. One right that you do have, however, in spite of any language in the license, is the right of first sale. Essentially this means that as the owner of the physical work, you can do with it as you please, including resell the original work.
Licenses in the digital arena can be very restrictive if you purchase digital media. Copyright holders may use schemes such as Digital Rights Management (DRM) to limit your ownership rights in digital media. DRM limits the number of copies and devices a digital file can be transferred to, and in some cases even permits the copyright holder to delete the purchased work. Amazon.com recently deleted digital George Orwell books from owners who had purchased the works for their Kindle reading devices (Figure 9.6.1 "Amazon’s Kindle E-reader"), without any prior notification. This would have been impossible if the books were in a physical form. Although Amazon.com was within its rights to do so, the public outcry that followed made Amazon.com promise to not engage in such behavior again in the future.
Copyright infringement occurs when someone uses a copyrighted work without permission or violates the terms of a copyright license. For example, if a classmate takes your class notes without your permission and makes photocopies of them, the classmate has infringed on your copyright. It’s also copyright infringement if you take someone else’s work and simply repackage it as your own. This happened recently to Harry Potter author J. K. Rowling. Her books created a huge fan following, and many fans gather online to discuss the Potter series. One such site is the Harry Potter Lexicon, run by Steve Vander Ark, a former school librarian. The site serves as an encyclopedia to the Harry Potter world, with reference notes on characters, places, spells, and other details. When Vander Ark announced plans to publish the contents of the Lexicon in a book format, J. K. Rowling sued, claiming copyright infringement. The judge agreed and ordered the Lexicon rewritten so that it uses less material from the copyrighted work.
Copyright infringement also occurs when you assist someone in violating a copyright, or create a device that assists in violating a copyright. Thus, Web sites such as the former Napster and Grokster, which existed solely for the purpose of facilitating illegal downloading of music, were held to be infringers even though the Web sites themselves didn’t violate any copyrights. Similarly, if you make digital media available for download for others, you are not engaged in illegal downloading but still liable for contributory copyright infringement. The recording industry, which is battling for its very survival in a new file-sharing world, pursues these cases aggressively. In June 2009, a court in Minnesota ordered Jammie Thomas to pay \$80,000 per song for making twenty-four songs available for download, for a total fine of \$1.92 million. In September 2009, the industry won a \$675,000 verdict against a college student in Massachusetts for file sharing thirty songs. Devices that can be used for purposes other than violating copyrights (such as photocopiers, video/DVD burners, and peer-to-peer networks used for sharing research) are not considered infringing devices.
Copyright law makes a distinction between “fair” use and “infringing” use of a copyrighted work. A fair use includes copying a work for purposes of commentary, criticism, news reporting, teaching, or research. Just because a work is used in a news article or in a classroom, however, does not make its use fair. The law provides four factors that courts must consider in determining whether or not the use is fair. First, the court must consider the purpose and character of the use. Is it for educational purpose, or for making a profit? Second, the court must consider the nature of the copyrighted work. Is the work part of the “core” of the intended protection that copyright provides? Third, the court must consider the amount and substantiality of the portion used. This is an important factor—it’s one thing for your professor to copy an excerpt from a journal or book for distribution in class (probably fair) and another to copy the entire journal or book (probably infringing). Finally, the court must consider the effect of the use on the potential market for the copyrighted work. If the use is considered fair, what would it do to the market for the copyrighted work? For example, if copying an entire textbook is fair, it would probably eliminate the market for new textbooks.
In an attempt to tackle the problem of copyright infringement on the Internet, Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. One portion of the law helps Internet service providers by expressly stating that those providers can’t be sued for copyright infringement if others use their networks for infringing uses. Another portion of the law helps Web sites by stating that if a Web site user uploads infringing material and the Web site complies with a copyright holder’s request to remove the material, the Web site won’t be liable for infringement. For example, if you upload a portion of a copyrighted song, movie, or television show to YouTube, you may find that YouTube has removed your clip at the request of the copyright holder. Finally, the DMCA makes it illegal to attempt to disable a copy protection device. DVD and Blu-ray Discs, for example, are copy-protected to prevent them from being copied easily. Anyone who writes software (even if the software is distributed for free) that disables this copy protection device is violating the DMCA. In recent years the DMCA has been used by companies to prevent competitors from making replacement inkjet cartridges, replacement garage door openers, and other replacement parts on the grounds that the replacements circumvent a copy protection device.
Key Takeaways
Copyright protects any creative work fixed in a tangible medium. Copyright protection is automatic without any prior government approval and generally lasts for seventy years past the death of the author. Copyright owners can license others to use their works while retaining full rights of ownership. Digital works are fully protected by copyright and may be encrypted with digital rights management schemes. Copyright infringement, both direct and contributory, is a serious civil violation that can result in heavy monetary penalties. Fair use is a defense to copyright infringement. The Digital Millennium Copyright Act prohibits any attempts to circumvent a copy protection device or scheme.
Exercise \(1\)
1. How long do you think copyrights should last?
2. Do you think the use of copyrighted works in parody is fair use? Consider works by Weird Al Yankovic, or Mel Brooks movies, for example.
3. Do you think there is any difference between downloading a song on a peer-to-peer network versus walking into a store and putting a CD into your jacket and walking out without paying for it? What are those differences? Should the law treat those two acts differently?
4. Is downloading music justifiable because recording artists and companies make a lot of money? Can you think of other industries where this reasoning applies as well?
9.07: Concluding Thoughts
The framers of the Constitution recognized the value of intellectual property (IP) by drafting the Copyright Clause into Article I, Section 8 as part of Congress’s duty to pass laws. As IP law evolved, laws that govern trade secrets, patents, trademarks, and copyright have emerged to protect different forms of IP. These legal protections provide a solid foundation for businesses, entrepreneurs, and artists to create useful, innovative, and inspiring works for society. Our lives are enriched by machines to make tasks easier, medicines to heal us, and songs and movies to inspire and entertain us. Without the financial incentives provided by IP law, innovation would grind to a halt and the U.S. economy would become unrecognizable.
On the other hand, the Constitution is explicit about the primary purpose of providing IP monopolies: to advance the progress of science and useful arts. This advance can take place when IP owners create IP, but it can also take place when the IP falls into the public domain at the end of its “limited time.” Many legal scholars now believe that Congress has gone too far in pleasing copyright holders, mainly large corporations with billions of dollars in profits at stake. In a case discussed in Chapter 7 "Torts" involving Samsung’s use of a robot that looked like Vanna White, Judge Alex Kozinski from the Ninth Circuit Court of Appeals (Figure 9.7.1 "Judge Alex Kozinski") noted that sometimes the law does go too far in protecting IP:
Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads, and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.
So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. White v. Samsung Electronics, 989 F.2d 1512 (9th Cir. 1993).
Judge Kozinski thinks that overprotecting intellectual property is as harmful as underprotecting it. Do you agree? The challenge for policymakers and courts is to find the balance between the rights of IP holders, who would always like more protection, and the rights of the public, which are enhanced when material falls into the public domain. Corporations, policymakers, and members of the public will all benefit from a reasoned debate over how to find this balance. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/09%3A_Intellectual_Property/9.06%3A_Copyright.txt |
Learning Objectives
After reading this chapter, you should understand the nature of criminal law, why it is important to business, and the potential consequences of committing criminal acts. You will become familiar with white-collar crimes, blue-collar crimes, and crimes committed by businesses. You will also learn about the constitutional protections afforded to those accused of committing a crime, and the purpose of punishments for committing crimes. This chapter will explore corporate liability as well as individual liability for corporate actions. It also will examine strategies to minimize corporate criminal liability exposure or losses attributed to criminal activities. At the conclusion of this chapter, you should be able to answer the following questions:
• Why is crime relevant to business?
• How does criminal law differ from civil law?
• What constitutional protections are afforded to those accused of committing a crime?
• What are some relevant defenses to crime?
• What are the consequences of committing a crime?
• What are the goals of punishment for committing a crime?
• Which crimes must businesses be concerned about?
• What strategies exist for businesses to minimize exposure to criminal liability or to loss associated with criminal activities?
Consider the photo in Figure 10.1 "Businessperson in Trouble". It is probably not the usual image conjured by most business students who dream of success in the business world. Yet it becomes a sad reality for too many managers and executives who commit crimes in the context of their professional lives. How can the path from business success lead to a criminal conviction? Click on any credible news source today, and you will find among the headlines a story in which this photo would fit.
Of course, there are many reasons why something like this happens. People sometimes fall into the “wrong crowd” at work, and they do not know how to walk away. Sometimes corporate culture and leadership can contaminate a work environment, causing people to disregard ethical behavior or to flagrantly ignore the laws. If “everyone is doing it,” then someone might believe that it’s OK for him or her to do it, too. Being part of an organization has a way of making someone feel insulated and “safe” when committing wrongdoings. For example, some members of the Enron workforce seemed to be swept up in a culture of corporate greed, and they did not know how to walk away. Other people are opportunists, and their moral compass or ethics do not lead them away from temptation. Bernie Madoff may be a prime example of such an opportunist in today’s news. Sometimes, criminal behavior results from the emphasis of profit over ethical behavior. For example, we might think of corporate environmental crimes, in which corporations decide not to follow regulatory requirements regarding hazardous waste disposal or storage. In the end, of course, the reasons for the criminal behavior do not matter. When a crime is committed, others will be injured, and the wrongdoer will be subject to criminal prosecution.
Everyone must be diligent about crime. Crimes affect businesses both from the inside and from the outside. Even if individuals are honest in their dealings, that does not relieve them from the necessity to maintain a vigilant watch to protect not only their good name but also that of their business from the criminal activities of others. Criminal activity “from the outside” can be costly to businesses. Loss through property damage, theft, shoplifting, corporate espionage, fraud, and arson are real threats. Perhaps more insidiously, threats “from the inside” also pose tremendous risk of loss. These activities include crimes such as embezzlement, computer crimes, and fraud. Such “inside jobs” are perhaps more unsettling because the perpetrators are often trusted colleagues who would not ordinarily fall under the suspicion of others. Moreover, a corporation must also protect itself from the bad judgment or overzealous behavior of its employees. If an employee acting within the scope of employment commits a crime from which the corporation itself will benefit, then the corporation can be convicted of the crime, too. Of course, not all corporations that are convicted on criminal charges are hapless victims of an overzealous employee who commits crimes on their behalf. Other businesses are actively involved in crime, whether through a corporate culture run amok or through outright organized crime, such as money laundering.
Let’s explore criminal law in the business world. Not only do we need to understand basic criminal law and the nature of crime in business to understand everyday headlines, but we also must ensure that our own professional dealings and the people associated with our businesses are never the legitimate focus of such stories. This chapter explores the differences between criminal law and civil law, the nature of criminal law, the constitutional protections afforded to those accused of committing a crime, relevant defenses, consequences of committing crimes, and the goals of punishment. It also examines specific crimes relevant to business, including white-collar crime, blue-collar crime that harms businesses, and crimes committed by businesses. Last, it examines different strategies to minimize exposure to criminal liability.
Key Takeaways
Criminal law is relevant to business because crime presents real threats. When crimes are committed, people are injured. Criminal behavior is punishable by law. Risks to business posed by crime arise from the losses suffered from the criminal activities of those on the outside of the business organization, as well as those on the inside. Corporations themselves can be liable for crime when an employee working within the scope of employment commits crime that benefits the corporation, or when the corporation itself commits crime. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/10%3A_Criminal_Law/10.01%3A_Introduction.txt |
Learning Objectives
• Understand what crime is.
• Compare and contrast the differences between criminal law and civil law.
• Understand the constitutional protections afforded to those accused of committing a crime.
• Examine some common defenses to crime.
• Learn about the consequences of committing a crime.
• Explore the goals or purposes of punishment for committing a crime.
Imagine a bookkeeper who works for a physicians group. This bookkeeper’s job is to collect invoices that are due and payable by the physicians group and to process the payments for those invoices. The bookkeeper realizes that the physicians themselves are very busy, and they seem to trust the bookkeeper with the task of figuring out what needs to be paid. She decides to create a fake company, generate bogus invoices for “services rendered,” and send the invoices to the physicians group for payment. When she processes payment for those invoices, the fake company deposits the checks in its bank account—a bank account she secretly owns. This is a fraudulent disbursement, and it is just one of many ways in which crime occurs in the workplace. Check out "Hyperlink: Thefts, Skimming, Fake Invoices, Oh My!" to examine several other common embezzlement schemes easily perpetrated by trusted employees.
Hyperlink: Thefts, Skimming, Fake Invoices, Oh My!
http://www.acfe.com/resources/view.asp?ArticleID=1
Think it couldn’t happen to you? Check out common schemes perpetrated by trusted employees in this article posted on the Association of Certified Fraud Examiners’ Web site.
When crime occurs in the workplace or in the context of business, the temptation might be to think that no one is “really” injured. After all, insurance policies can cover some losses. Sometimes people think that if the victims of embezzlement do not immediately notice the embezzlement, then they must not “need” the money anyhow, so no real crime has been committed. Of course, these excuses are just smokescreens. When an insurance company has to pay for a claim arising from a crime, the insurance company is injured, as are the victim and society at large. Similarly, the fact that wealthy people or businesses do not notice embezzlement immediately does not mean that they are not entitled to retain their property. Crime undermines confidence in social order and the expectations that we all have about living in a civil society. No crime is victimless.
A crime is a public injury. At the most basic level, criminal statutes reflect the rules that must be followed for a civil society to function. Crimes are an offense to civil society and its social order. In short, crimes are an offense to the public, and someone who commits a crime has committed an injury to the public.
Criminal law differs from civil law in several important ways. See Figure 10.2.1 "Comparison between Criminal Law and Civil Law" for a comparison. For starters, since crimes are public injuries, they are punishable by the government. It is the government’s responsibility to bring charges against criminals. In fact, private citizens may not prosecute each other for crimes. When a crime has been committed—for instance, if someone is the victim of fraud—then the government collects the evidence and files charges against the defendant. When someone is charged with committing a crime, he or she is charged by the government in an indictment. The victim of the crime is a witness for the government but not for the prosecutor of the case. Note that our civil tort system allows a victim to bring a civil suit against someone for injuries inflicted on the victim by someone else. Indeed, criminal laws and torts often have parallel causes of action. Sometimes these claims carry the same or similar names. For instance, a victim of fraud may bring a civil action for fraud and may also be a witness for the state during the criminal trial for fraud.
In a criminal case, the defendant is presumed to be innocent unless and until he or she is proven guilty. This presumption of innocence means that the state must prove the case against the defendant before the government can impose punishment. If the state cannot prove its case, then the person charged with the crime will be acquitted. This means that the defendant will be released, and he or she may not be tried for that crime again. The burden of proof in a criminal case is the prosecution’s burden, and the prosecution must prove its case beyond a reasonable doubt. This means that the defendant does not have to prove anything, because the burden is on the government to prove its case. Additionally, the evidence must be so compelling that there is no reasonable doubt as to the defendant’s guilt. To be convicted of a crime, someone must possess the required criminal state of mind, or mens rea. Likewise, the person must have committed a criminal act, known as actus reus.
Compare this to the standard of proof in a civil trial, which requires the plaintiff to prove the case only by a preponderance of the evidence. This means that the evidence to support the plaintiff’s case is greater (or weightier) than the evidence that does not. It’s useful to think of the criminal standard of proof—beyond a reasonable doubt—as something like 99 percent certainty, with 1 percent doubt. Compare this to preponderance of the evidence, which we might think of as 51 percent in favor of the plaintiff’s case, but up to 49 percent doubt. This means that it is much more difficult to successfully prosecute a criminal defendant than it is to bring a successful civil claim. Since a criminal action and a civil action may be brought against a defendant for the same incident, these differences in burdens of proof can result in verdicts that seem, at first glance, to contradict each other. Perhaps the most well-known cases in recent history in which this very outcome happened were the O. J. Simpson trials. Simpson was acquitted of murder in a criminal trial, but he was found liable for wrongful death in a subsequent civil action. Check out "Hyperlink: Not Guilty Might Not Mean Innocent" for a similar result in the business context.
Hyperlink: Not Guilty Might Not Mean Innocent
http://www.bloomberg.com/apps/news?pid=20601103&sid=a89tFKR4OevM
Richard Scrushy of HealthSouth was acquitted of several criminal charges relating to accounting fraud but was found civilly liable for billions. He was subsequently found guilty in a later criminal case for different crimes committed.
This extra burden reflects the fact that the defendant in a criminal case stands to lose much more than a defendant in a civil case. Even though it may seem like a very bad thing to lose one’s assets in a civil case, the loss of liberty is considered to be a more serious loss. Therefore, more protections are afforded to the criminal defendant than are afforded to defendants in a civil proceeding. Because so much is at stake in a criminal case, our due process requirements are very high for anyone who is a defendant in criminal proceedings. Due process procedures are not specifically set out by the Constitution, and they vary depending on the type of penalty that can be levied against someone. For example, in a civil case, the due process requirements might simply be notice and an opportunity to be heard. If the government intends to revoke a professional license, then the defendant might receive notice by way of a letter, and the opportunity to be heard might exist by way of written appeal. In a criminal case, however, the due process requirements are higher. This is because a criminal case carries the potential for the most serious penalties.
Constitutional Rights Relevant to Criminal Proceedings
A person accused of a crime has several rights, which are guaranteed by the U.S. Constitution. Many crimes are state law issues. However, many provisions of the U.S. Constitution’s Bill of Rights, which contains the rights of concern to criminal defendants, have been incorporated as applicable to the states. This is known as the incorporation doctrine.
The Sixth Amendment guarantees that criminal defendants are entitled to an attorney during any phase of a criminal proceeding where there is a possibility of incarceration. This means that if a defendant cannot afford an attorney, then one is appointed for him or her at the state’s expense.
The Fifth Amendment guarantees the right to avoid self-incrimination. This right means that the government cannot torture someone accused of committing a crime. Obviously, someone under the physical and psychological pain of torture will admit to anything, and this might be a strong incentive to allow torture if the government wanted someone to confess to a crime. However, the Fifth Amendment guarantees that people can choose to remain silent. No one is compelled to testify against himself or herself to make self-incriminating statements.
The Eighth Amendment prohibits cruel and unusual punishment. We do not employ many techniques that were once used to punish people who committed crimes. For instance, we do not draw and quarter people, which was a practice in England during the Middle Ages. Recently, however, the question of the use of torture by the United States against aliens on foreign soil has been a hot topic. Many people believe that our Eighth Amendment protections should be extended to everyone held by U.S. authorities, whether they are on U.S. soil or not.
The Fourth Amendment provides a prohibition against illegal searches and seizures. This means that if evidence were obtained in violation of the Fourth Amendment, then it cannot be used against the defendant in a court of law. For Fourth Amendment requirements to be met, the government must first obtain a search warrant to search a particular area for particular items if there is a reasonable expectation of privacy in the area to be searched. The search warrant is issued only on probable cause. Probable cause arises when there is enough evidence, such as through corroborating evidence, to reasonably lead to the belief that someone has committed a crime.
If a valid search warrant is issued, then the government may search in the area specified by the warrant for the item that is the subject of the warrant. If a search occurs without a warrant, the search might still be legal, however. This is because there are several exceptions to the requirements for a search warrant. These include the plain view doctrine, exigent circumstances, consent, the automobile exception, lawful arrest, and stop and frisk. The plain view doctrine means that no warrant is required to conduct a search or to seize evidence if it appears in the plain view of a government agent, like a police officer. Exigent circumstances mean that no warrant is required in the event of an emergency. For instance, if someone is cruelly beating his dog, the state can remove the dog without a warrant to seize the dog. The exigent circumstances exception to the warrant requirement is used in hot pursuit cases. For example, if the police are in hot pursuit of a suspect who flees into a house, the police can enter the house to continue the pursuit without having to stop to first obtain a warrant to enter the house. Consent means that the person who has the authority to grant consent for a search or seizure has granted the consent. This does not necessarily have to be the owner of the location to be searched. For example, if your roommate consents to a search of your living room, which is a common area shared by you and your roommate, then that is valid consent, even if the police find something incriminating against you and you or your landlord did not consent to the search. The automobile exception means that an automobile may be searched if it has been lawfully stopped. When a police officer approaches a stopped car at night and shines a light into the interior of the car, the car has been searched. No warrant is required. If the police officer spots something that is incriminating, it may be seized without a warrant. Additionally, no warrant is required to search someone who is subject to lawful arrest. This exception exists to protect the police officer. For instance, if the police could not search someone who was just arrested, they would be in peril of injury from any weapon that the person in custody might have possession of. Similarly, if someone is stopped lawfully, that person may be frisked without a warrant. This is the stop and frisk exception to the warrant requirement.
In the business context, it is also important to note that administrative agencies in certain limited circumstances may conduct warrantless searches of closely regulated businesses, such as junkyards, where many stolen cars are disassembled for parts that can be sold.
Defenses
If the government violates a defendant’s constitutional rights when collecting evidence, then the evidence gathered in violation of those rights may be suppressed at trial. In other words, it may not be used against the defendant in trial. This is because evidence obtained through an illegal search is “fruit of the poisonous tree.” The fruit of the poisonous tree doctrine is known as the exclusionary rule. You should know, however, that lying to the defendant, or using forms of trickery and deceit, are not constitutional violations.
Another common defense arises under the exclusionary rule regarding confessions. This is when the government, while holding someone in a custodial interrogation, questions that person without first reading the Miranda warnings. If someone is subjected to a custodial interrogation, he or she must first be read the Miranda warnings, which you have probably heard in the movies. Though the U.S. Supreme Court did not script the warnings specifically, the warnings are usually delivered in language close to this: “You have the right to remain silent. Anything that you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you by the state. Do you understand your rights?”
The purpose of the Miranda warnings is to ensure that people understand that they have the right not to make self-incriminating statements and that they have the right to have counsel. If someone wants to invoke his or her rights, he or she has to do so unequivocally. “Don’t I need a lawyer?” is not enough.
The Miranda warnings are not required unless someone is in custody and subject to interrogation. Someone in custody is not free to leave. So if a police officer casually strikes up a conversation with you while you are shopping in the grocery store and you happen to confess to a crime, that confession will be admissible as evidence against you even though you were not Mirandized. Why? Because you were not in custody and you were free to leave at any time. Likewise, if the police are not interrogating a person, then any statement made can also be used against that person, even if he or she is not Mirandized. Someone is being interrogated when the statements or actions by the police (or other government agent) are likely to give rise to a response.
Another defense provided by the U.S. Constitution is the prohibition against double jeopardy. The Fifth Amendment prohibits the government from prosecuting the same defendant for the same crime after he or she has already stood trial for it. This means that the government must do a very thorough job in collecting evidence prior to bringing a charge against a defendant, because unless the trial results in a hung jury, the prosecution will get only that one chance to prosecute the defendant.
Other defenses to crime are those involving lack of capacity, including insanity and infancy. Insanity is a lack of capacity defense, specifically applicable when the defendant lacks the capacity to understand that his actions were wrong. Infancy is a defense that may be used by persons who have not yet reached the age of majority, typically eighteen years of age. Those to which the infancy defense applies are not “off the hook” for their criminal actions, however. Juvenile offenders may be sentenced to juvenile detention centers for crimes they commit, with common goals including things like education and rehabilitation. In certain circumstances, juvenile offenders can be tried as adults, too.
Last, the state may not induce someone to commit a crime that he or she did not already have the propensity to commit. If the state does this, then the defendant will have the defense of entrapment.
Punishment
If convicted in a criminal case, the defendant will be punished by the government, rather than by the victim. Once a defendant is convicted of a crime, he or she is a criminal. Punishment for criminal offenses can include fines, restitution, forfeiture, probation, civil disabilities, and a loss of liberty. Loss of liberty means that the convicted criminal may be forced to do community service, may be subject to house arrest, may be incarcerated or, in some states that have the death penalty, may even lose his or her life.
Length of incarceration varies depending on whether the conviction was for a misdemeanor or a felony. A misdemeanor is a less serious offense than a felony, as determined by the legislative body and reflected in the relevant statutes. Even an infraction, such as a parking ticket, is a criminal offense, typically carrying a penalty of a fine. An infraction is considered less serious than a misdemeanor.
When someone is convicted of violating a state criminal statute—a felony, misdemeanor, or infraction—the penalty will be set by the statute. For instance, the statute might state that the punishment will be “up to \$5,000” or “up to one year in jail.” Often, the possible punishments are given in a range, which allows the judge leeway to take other matters into consideration when sentencing the offender. For example, if someone is convicted of a misdemeanor that carries a penalty of up to one year in jail, but that person is a first-time offender with no prior criminal history, the judge might impose a sentence of some lesser time in jail, such as thirty days, or no jail time whatsoever.
Historically, all judges had the leeway to use their judgment when sentencing convicted criminals. However, disparities in sentences gave rise to concern about unequal treatment for similar offenses. In the 1980s the U.S. Sentencing Commission established the Federal Sentencing Guidelines, which were understood to be mandatory guidelines that federal judges were expected to use when sentencing offenders. The mandatory nature of these guidelines led some to observe that extremely harsh penalties were mandated for relatively minor offenses, given certain circumstances. Today, however, the federal guidelines are only advisory, due to the U.S. Supreme Court’s decision in United States v. Booker, which held that a wide range of factors should be taken into consideration when sentencing offenders.United States v. Booker, 543 U.S. 220 (2005). This opinion restored to federal district court judges the power to exercise their judgment when sentencing federal offenders. Several states, however, passed their own versions of sentencing guidelines, and state trial court judges in those states must rely on those guidelines when sentencing state offenders. This has led to controversial “three strikes” laws, which can also carry extremely harsh penalties—such as incarceration for twenty-five years to life—for relatively minor offenses.
Often, the convicted criminal will be subject to various civil disabilities, depending on the state in which he or she lives. For instance, a felon, which is a criminal that has been convicted of a felony, may be prohibited from possessing firearms, running for public office, sitting on a jury, holding a professional license, or voting. A felon may be subject to deportation if he or she is an illegal immigrant.
Besides loss of liberty and civil disabilities, other forms of punishment exist. Some of these are also appropriate in civil cases. Punishment for crimes also includes a fine, which is a monetary penalty for committing an offense. Fines can also be levied in civil cases. Restitution, which is repayment for damage done by the criminal act, is a common punishment for property damage crimes such as vandalism. Restitution can also be an appropriate remedy in civil law, particularly in contracts disputes. Forfeiture, which means involuntarily losing ownership of property, is also a punishment, and it is commonly used in illegal drug trafficking cases to seize property used during the commission of a crime. Check out "Hyperlink: Shopping, Anyone?", which is the U.S. Marshall’s Assets Forfeiture page, to see forfeited property currently available for sale. Finally, probation is a common penalty for committing crime. Probation is when the criminal is under the supervision of the court but is not confined. Typically, the terms of the probation require the criminal to periodically report to a state agent, such as a probation officer.
Hyperlink: Shopping, Anyone?
www.usmarshals.gov/assets/assets.html
Purpose of Punishment
Conviction of a crime carries criminal penalties, such as incarceration. But what is the purpose of punishment? We do not have a vigilante system, where victims may bring their own form of justice to an offender. If we had such a system we would have never-ending feuds, such as the infamous and long-standing nineteenth-century dispute between the Hatfields and McCoys from the borderlands of West Virginia and Kentucky.
Several goals could be the focus of a criminal justice system. These could include retribution, punishment, rehabilitation, the protection of society, or deterrence from future acts of crime. Our criminal justice system’s penalties ostensibly do not exist for the purpose of retribution. Rather, rehabilitation, punishment, the protection of society, and deterrence from committing future crimes are the oft-cited goals. The Federal Bureau of Prisons captures some of these concepts in its mission statement. Federal Bureau of Prisons, “Mission and Vision of the Bureau of Prisons,” www.bop.gov/about/mission.jsp (accessed September 27, 2010). Sadly, rehabilitation programs are not always available or, when they are, they are not always considered appropriate—or, when appropriate, they do not always work. Additionally, the goal of deterrence is not always achieved, as reflected in high recidivism rates in the United States.
Punishment of Business-Related Crime
Punishments committed by “white-collar criminals” are the same as those committed by any criminal. White-collar crime is a term used to describe nonviolent crimes committed by people in their professional capacity or by organizations. Individuals involved in white-collar crime are criminally liable for their own actions.
Additionally, since a corporation is a legal person, then the corporation can be convicted of committing crimes, too. Accordingly, corporations can be punished. However, not all constitutional protections afforded to individuals are available to corporations. For instance, a corporation does not have the right against self-incrimination.
One difficulty that arises is the question of how to punish a corporation for engaging in criminal activity. After all, as they say, a corporation does not have a soul to rehabilitate or a body to incarcerate. Albert W. Alschuler, “Two Ways to Think about the Punishment of Corporations,” American Criminal Law Review, Public Law and Legal Theory Series, No. 09-19, 2009, p. 13, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1491263 (accessed September 27, 2010).This is a paraphrase of a remark first uttered by Lord Chancellor Thurlow between 1778 and 1792: “No soul to damn, no body to kick.” This is very different from a human being, who will stand to lose his or her liberty or who might be subject to mandatory counseling.
We might argue that a criminal corporation should have its corporate charter revoked, which would be equivalent to a corporate death penalty. However, if that happened, a lot of innocent people who were not involved in the criminal activity would be harmed. For instance, employees would lose their jobs, and suppliers and customers would lose the goods or services of the corporate criminal. Entire communities could suffer the consequences of a few bad actors.
On the other hand, corporations must be punished to respect the goal of deterrence of future crimes. One way that corporations are deterred is by the imposition of hefty fines. It is not uncommon to base such penalties on some percentage of profits, or all profits derived from the ill-gotten gains of criminal activity.
Corporations that are criminals also lose much in the way of reputation. Of course, reputational damage can be very difficult to repair.
Key Takeaways
Crime is a public injury. Criminal law differs from civil law in important ways, including who brings the claim, the burden of proof, due process, postconviction civil disabilities, and penalties. Those who are accused of committing a crime are afforded a high level of due process, including constitutional protections against illegal searches and seizures, and self-incrimination; guarantee of an attorney; and prohibition against cruel and unusual punishment. Several common defenses to crimes exist. If convicted, criminals can face loss of liberty, with sentencing structures based on statutory language and, in the federal system, guided by the U.S. Federal Sentencing Guidelines. The goals of imposing penalties for violating criminal laws include protecting society, punishing the offender, rehabilitating the offender, and deterrence from future acts of crime. Corporations can also be convicted of crimes, though unique questions relating to appropriate means of punishment arise in that context.
Exercise \(1\)
1. Imagine a woman who suffers from dementia and lives in an assisted living facility. One day, she wanders into another resident’s room and picks up an antique vase from the other resident’s bureau. As she holds the vase, she forgets that it belongs to someone else and walks out of the room with it. Later, she places it on her own nightstand, where she admires it greatly. Has there been a crime here? Why or why not?
2. Consider the case of O. J. Simpson, in which a criminal jury acquitted him of murder, but a civil court found him liable for wrongful death. Both trials arose out of the same incident. Do you think that the burden of proof should be the same for a civil case as it is for a criminal case? Why?
3. What should be the goal of penalties or punishments for criminal offenses? Compare and contrast how our criminal justice system would differ if the goal of punishment was each of the following: retribution, rehabilitation, protection of society, or deterrence from future acts of crime.
4. Consider the difference between minimum security federal prison camps and medium or high-level securities facilities, described here: www.bop.gov/locations/institutions/index.jsp. Should white-collar criminals receive the same punishment as those convicted of committing a violent crime? Why or why not?
5. Before listening to the link in this assignment, write down your perceptions of “federal prison camp.” Then, listen to an interview with a convicted white-collar criminal here: discover.npr.org/features/feature.jhtml?wfId=1149174. Compare your initial perceptions with what you have learned from this interview. How are they the same? How do they differ?
6. How should a corporation be punished for committing a crime? Find an example of a corporation that was convicted of a crime. Do you believe that the punishment was appropriate? Discuss.
7. What kinds of crimes do college students commit? While the vast majority of college students wouldn’t even think of committing a violent crime, many students do engage in crimes they believe to be victimless, such as downloading movies or buying and selling prescription drugs like Adderall or Ritalin. Are these crimes actually victimless?
8. The exclusionary rule was created by the Supreme Court as a means of punishing the police for violating a defendant’s constitutional rights. Some legal commentators, including several members of the Supreme Court, believe the exclusionary rule should be abolished. Without it, how do you think society can ensure the police will not violate a citizen’s constitutional rights? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/10%3A_Criminal_Law/10.02%3A_The_Nature_of_Criminal_Law%2C_Constitutional_Rights%2C_Defenses%2C_and_Punishment.txt |
Learning Objectives
• Examine white-collar crimes.
• Examine blue-collar crimes that harm businesses.
• Examine the crimes committed by businesses.
Imagine that you work in a publicly-traded corporation as an accountant. One day, your manager calls you. You sense desperation in his voice as he whispers, “Quick! Shred the paper copies of the financial records!” Will you do it? After all, how can shredding paper be a crime? Not so fast. It may be a crime under the Sarbanes-Oxley Act, specifically if you destroy documents before the statutory length of time required to hold them. After studying this section, you should be able to recognize when the answer to such questions should be a resounding “No!” Indeed, after reading this section, you should be able to spot criminal activity, which may lead to tough decisions, such as whether you should be a whistleblower or not.
This section addresses crimes relevant to business concerns. A business must be concerned about criminal activity from the inside, from the outside, and through its own actions.
White-Collar Crime
White-collar crime is a term used to describe nonviolent crimes committed by people in their professional capacity, or by organizations. These crimes are committed for financial gain, often through deception. Historically, this term derives from a reference to the “white collars” that managers, executives, or professionals who committed these crimes wore as their everyday attire, rather than the “blue collars” of the factory workers and laborers. White-collar crimes are not typical street crimes, like burglary or robbery, and they are not person crimes, like murder or rape. Rather, the term is used to describe crime committed in the professional work environment, for the purpose of obtaining a financial reward through the use of deception. White-collar criminals frequently commit their crimes on the job, in broad daylight, while sitting at a desk.
But what leads an otherwise successful businessperson or organization to commit a white-collar crime? After all, if someone is earning a good salary, or if a business is financially healthy, why would he or she choose to violate the law? While names like Kenneth Lay of Enron and Bernie Ebbers of WorldCom are virtually synonymous with corporate greed, lack of ethical decision making, and fraudulent behavior, these examples do not provide satisfactory answers to this question. Indeed, businesses must be vigilant against white-collar crime, because there is no absolute way to identify those who might turn to criminal behavior in the workplace. White-collar crime can involve fraud or larceny, organized crime, cybercrime, and environmental crime.
Fraud and Larceny
White-collar crimes generally involve the use of deception to acquire money or property. This is the very definition of fraud. Many white-collar crimes are versions of fraud. Sometimes, white-collar crime involves outright larceny, which is the trespassory taking of property with the intent to deprive the owner of the property. In both types of white-collar crime, the criminal is trying to take property for his or her own financial gain.
Fraud is found in many contexts. For instance, many regulatory violations, like insider trading, are forms of fraud. Specifically, these are securities fraud. Securities fraud is when someone uses deception to circumvent the regulations or statutes interpreted by the U.S. Securities and Exchange Commission (SEC) to acquire money or property. Goldman Sachs was recently charged by the SEC for securities fraud, because it allegedly misrepresented material facts to investors to gain financially. Check out "Hyperlink: SEC v. Goldman Sachs" to review the complaint.
Hyperlink: SEC v. Goldman Sachs
One of Goldman Sachs’s employees, Fabrice Tourre, self-named the “Fabulous Fab,” was also named as a defendant in the complaint. Do you think that the Fabulous Fab should bear criminal liability for misleading investors, even if he did mislead investors?
http://www.sec.gov/litigation/complaints/2010/comp21489.pdf
The Fabulous Fab’s testimony before Congress:
www.cbsnews.com/video/watch/?id=6436867n&tag=related;photovideo
Health care fraud is also a common type of white-collar crime. A physician who submits false claims to health insurance companies to receive money is a common example. Check out Note 10.51 "Hyperlink: Health Care Fraud’s Epidemic" to see the U.S. Department of Justice’s comments regarding health care fraud.
Hyperlink: Health Care Fraud's Epidemic
www.fbi.gov/news/videos/mp4/heat062409.mp4/view
This link is a video of the U.S. Department of Justice’s comments concerning recent indictments against several individuals accused of creating “straw patients” to submit claims to Medicaid to receive money. You can see how someone who creates fake patients to receive money has committed fraud, because he or she is using deception (fake patients) to acquire money (Medicaid payments).
Insurance fraud is the use of deception to receive insurance funds. For instance, if someone falsely reports that her office was burglarized and her computer equipment was stolen, and asks her insurance company to cover the loss, then this constitutes insurance fraud. This is because the person is lying (using deception) to acquire an insurance payment (acquiring money). A common context for insurance fraud is arson. If someone intentionally burns down his office building because he wishes to collect under his fire insurance policy, then he has committed insurance fraud by arson. Arson is the act of intentionally setting fire to property.
Financial institution fraud is fraud against banks and other similar institutions, such as credit unions. The IRS investigates financial institution fraud. Cases of financial institution fraud can involve people who falsify tax documents, or profit and loss statements to gain funding from banks, as well as those who commit money laundering. Check out "Hyperlink: Financial Institution Fraud" for several financial institution fraud cases, most of which are excellent examples of white-collar crime.
Hyperlink: Financial Institution Fraud
www.irs.gov/compliance/enforcement/article/0,,id=213770,00.html
Consider another type of fraud, where the deception is perhaps better hidden. Bernie Madoff committed massive fraud in a scheme known as a Ponzi scheme. A Ponzi scheme is a pyramid scheme, where people pay in. Those at the top of the pyramid may receive something that appears to be a return on their investment, but those at the bottom do not. This is because the funds paid in by those at the bottom are used to pay the people at the top. Those who operate Ponzi schemes generally solicit investors, and those who invest in such schemes are expecting a legitimate return on investment (ROI). However, the master of the Ponzi scheme does not really invest the funds. He simply takes them, and keeps his early “investors” happy by bringing in new investors, whose money he gives to the old investors as their ROI. This allows the Ponzi scheme to continue, because it appears from the outside that investors are receiving a legitimate ROI. The problem is that the capital contributions eventually disappear, since they are never invested but are simply used by the criminal for his own purposes, including covering his tracks for as long as possible by paying investors with fake ROI payments as necessary. To continue, the pyramid must get bigger and bigger. That is because new investors must be attracted to keep the cash flow going. Eventually, of course, pyramids will eventually collapse under their own unsustainable structure. Check out "Hyperlink: The Mechanics of a Pyramid Scheme" for an illustration of a pyramid scheme from the SEC.
Hyperlink: The Mechanics of a Pyramind Scheme
http://www.sec.gov/answers/pyramid.htm
Madoff was a wealth manager who defrauded investors out of billions of dollars. How does someone get away with this? Interestingly, Harry Markopolos, a financial analyst, flagged Madoff’s actions to the SEC as statistically impossible long before Madoff was caught. Check out "Hyperlink: Too Good to Be True? Statistically Impossible Returns" to watch Mr. Markopolos explain this by using sports analogies. This raises interesting legal questions regarding whether the SEC is proactive enough. The SEC actions are often reactive, responding to a situation after it happened.
Hyperlink: Too Good to Be True? Statistically Impossible Returns
www.cbsnews.com/video/watch/?id=4834874n&tag=related;photovideo
Investors aren’t the only potential victims of white-collar crime. Owners of businesses are also potential victims. For example, embezzlement is a common crime, and it occurs when someone takes property that was in his or her possession lawfully and then converts it to his or her own use. As you can see, Bernie Madoff was an embezzler because he lawfully had possession of his clients’ money, but then he wrongfully converted those funds to his own use, rather than exercising his fiduciary duty to his clients. Embezzlement differs from larceny, because larceny requires the trespassory taking of property with the intent to deprive the owner of the property. In other words, in a larceny, the thief is not supposed to have possession of the property to begin with. Someone who embezzles something, however, has the right to be in possession of the property to start with but then wrongfully converts it (steals it) for his or her own use. Embezzlement strategies can involve forgery, which is counterfeiting someone else’s signature or other document. It can also involve wire fraud if the embezzlement uses electronic communications.18 U.S.C. §1343. Refer again to "Hyperlink: Thefts, Skimming, Fake Invoices, Oh My!" to learn about many different embezzlement schemes.
Corporate espionage and misappropriation are crimes in which a competitor or would-be competitor has acted illegally to obtain trade secrets of another. The Economic Espionage Act is a federal statute that criminalizes the theft of trade secrets. In a recent case of corporate espionage, Starwood Hotels sued Hilton, claiming that Hilton, along with some of its executives, stole millions of dollars in confidential trade secrets that were used to compete with Starwood’s successful chain of hotels.
Organized Crime
While the term “organized crime” often summons images of the mafia, that is not the only type of organized criminal activity in this country. Consider the recent case against Pfizer, which settled with the U.S. Department of Justice in 2009. Pfizer’s subsidiaries, Pharmacia and Upjohn, had been selling pharmaceuticals “off-label” in doses and for uses not approved by the Food and Drug Administration (FDA), and it had been providing kickbacks to physicians to prescribe those drugs. The subsidiaries agreed to plead guilty to misbranding with the intent to defraud or mislead. They paid a criminal fine of more than one billion dollars and forfeited their profits from their illegal activities. Not only did they plead guilty to a criminal violation, but they also had to pay a hefty penalty for violating civil law, particularly related to paying kickbacks to physicians.FBI Press Release, “The Case Against Pfizer: A Record \$2.3 Billion Settlement,” September 2, 2009, www.fbi.gov/page2/sept09/pfizer_settlement_090209.html (accessed September 27, 2010). Kickbacks are incentive payments that are given to someone who makes decisions to encourage others to pay for something. The repercussions of this conviction are certainly felt by those who were without knowledge of these acts, such as the shareholders and many employees, not to mention the patients who were subjected to off-label marketing in the contexts of what otherwise should have been trusting relationships with their physicians.
The Racketeer Influenced and Corrupt Organizations Act (RICO) is a federal statute that, if violated, can add substantial prison time to a convicted criminal’s sentence. Even if someone is not per se involved with organized crime, RICO charges can be brought against a defendant who has violated the statute. This statute punishes those engaged in a pattern (at least two) of racketeering activities—which include a wide range of activities typically associated with organized crime—over a ten-year period,18 U.S.C. §1961(5). when funds from those activities were used to maintain, operate, or acquire a legitimate business. Racketeering activities include crimes such as loan-sharking, bookmaking, money laundering, counterfeiting, smuggling, blackmailing, human trafficking, and other similar crimes. Although RICO was written to target traditional organized crime, less than 10 percent of RICO cases filed have been against the mafia. RICO is now used against insurance companies, stock brokerages, tobacco companies, banks, and other large commercial enterprises. RICO also has a civil provision allowing a competitor to file RICO charges, which come with triple damages if the suit is successful.
Bribery occurs when someone pays a government official to influence the official’s decision or actions in his or her official capacity for the benefit of the person paying the bribe. The Foreign Corrupt Practices Act (FCPA) outlaws bribery by U.S. companies doing business in foreign lands, though grease payments are permitted. Grease payments are payments given to speed up a process that will occur, rather than to influence a decision. However, companies should be very careful in relying on the grease payment exception, since such payments are legal under the FCPA only if they are also legal under the laws of the country where the grease payments take place, and there are very few jurisdictions (if any) where they are indeed legal. States also have statutes against bribery.
Money laundering occurs when funds gained from illegal activities are processed through a seemingly legitimate business to “clean” the source of those funds. For example, someone who received \$10,000 for criminal activities will need to “clean” the money to be able to use it legitimately. One way this can be done is by setting up a business that handles a lot of cash, which appears to be a legitimate business. This business can overstate its earnings by \$10,000 over time by running the money through its books, thereby “cleaning” the funds. For example, if the business was a tavern, and the tavern grossed \$12,000 per month, the ill-gotten \$10,000 could be spread out over ten months by having the business claim that it grossed \$13,000 each month. In that way, the ten thousand would eventually be “laundered” or “cleaned,” because it will appear to be money received by the legitimate business itself.
In that example, if someone found out about this money laundering operation and threatened to go to the authorities unless a payment was given to him to keep quiet, then that would be a form of extortion known as blackmail. Blackmail occurs when someone threatens to reveal a harmful truth, such as involvement in criminal activity, but agrees to remain silent if paid. Extortion is when someone obtains property through coercion. Another example of extortion is when a neighborhood gang extracts “protection payments” from local businesses. Essentially, the gang requires payment from local businesses periodically, and if the business refuses to pay, then the gang injures the business or its owner in some way, such as through vandalism or battery.
In organized crime cases, there can be strong incentives for people not to do the right thing. Maybe they are afraid of punishment by the government. But they may also fear punishment from their organized crime communities. In such cases, sometimes people do not tell the truth when they should. Someone who lies under oath, even if he or she thinks there’s a good reason to do so, has committed the crime of perjury. Additionally, such a person might be charged with obstruction of justice, which is acting in a manner that creates obstacles to the administration of justice.
Antitrust laws seek to prevent activities that reduce or eliminate economic competition. Agreements “in restraint of trade” are prohibited. Sherman Act, 15 U.S.C. §1. These crimes involve things like collusion, allocating markets, price-fixing, and bid-rigging. Criminal convictions have been obtained for bid-rigging contracts for milk for school children, price-fixing for residential doors, and price-fixing for steel wool scouring pads. Anne K. Bingeman and Gary R. Spratling, “Criminal Antitrust Enforcement” (joint address, Criminal Antitrust Law and Procedure Workshop, American Bar Association Section of Antitrust Law, Dallas, TX, February 23, 1995), http://www.justice.gov/atr/public/speeches/0103.htm (accessed September 27, 2010). Check out "Video Clip: Who Said Antitrust Is Boring? Not Hollywood!" for the movie trailer of The Informant!, which is based on an actual antitrust case involving illegal price-fixing.
Video Clip: Who Said Antitrust Is Boring? Not Hollywood!
Check out the movie trailer for The Informant!, which portrays the criminal price-fixing activities of senior executives at ADM Co., which is a major agribusiness. Which commodity was being price fixed? Lysine! Here is part of the trailer:
(click to see video)
Congress has addressed antitrust activities through the passage of several major pieces of legislation, though not all carry criminal penalties. Specifically, the Sherman Anti-Trust Act carries criminal penalties for antitrust violations, but other antitrust laws do not.
Cybercrime
Cybercrimes are crimes that are committed virtually from a computer or over the Internet. These crimes are on the rise, and they include activities like hacking and identity theft. Cybercrime is a broad term that includes many white-collar crimes. Cybercrime is ubiquitous these days, because virtually every desk has a computer on it. These crimes can range from non-white-collar crimes (like possession of child pornography) to traditional white-collar crime, involving the use of deception to acquire money.
The Computer Fraud and Abuse Act is a federal statute that carries punishments for compromising computers used in interstate commerce or communication. It punishes those who access a computer to commit fraud, among other things. See Table 10.1 "Summary of Computer Fraud and Abuse Act Compromising Confidentiality Provisions" Computer Crime and Intellectual Property Section, United States Department of Justice, “Computer Fraud and Abuse Act,” www.justice.gov/criminal/cybercrime/ccmanual/01ccma.html (accessed September 27, 2010). for a summary of the provisions that carry criminal punishments, as well as the statutory sentences.
Table 10.1 Summary of Computer Fraud and Abuse Act Compromising Confidentiality Provisions
Offense Section Sentence (Years)*
Obtaining national security information (a)(1) 10 (20)
Compromising the confidentiality of a computer (a)(2) 1 or 5
Trespassing in a government computer (a)(3) 1 (10)
Accessing a computer to defraud and obtain value (a)(4) 5 (10)
Knowing transmission and intentional damage (a)(5)(A)(i) 10 (20 or life)
Intentional access and reckless damage (a)(5)(A)(ii) 5 (20)
Intentional access and damage (a)(5)(A)(iii) 1 (10)
Trafficking in passwords (a)(6) 1 (10)
Extortion involving threats to damage computer (a)(7) 5 (10)
* The maximum prison sentences for second convictions are noted in parentheses.
The Unauthorized Access to Stored Communications Act is a federal statute to protect the confidentiality of e-mail and voicemail. However, this act does not have as broad of a sweep as it might appear from its name. Courts have held that home computers, business computers, and Internet service providers (ISPs) are not “electronic communications devices” that are covered by this act. So hacking into an e-mail account providerFTC v. Netscape Communications Corp., 196 F.R.D. 559, 560 (N.D. Cal. 2000). would be prohibited by this act, but not hacking into a home computer United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003). or a business computer.United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003). Due to the narrow reading of the statute by the courts, few prosecutions have occurred under this Act since its enactment. Computer Crime and Intellectual Property Section, United States Department of Justice, “Other Network Crime Statutes, Unlawful Access to Stored Communications, 18 U.S.C. §2701, 8. Historical Notes,” www.justice.gov/criminal/cybercrime/ccmanual/03ccma.html (accessed September 27, 2010).
Identity theft is also now codified into federal statute as a federal criminal violation.18 U.S.C. §1028(a)(7) and 18 U.S.C. §1028A. This crime is rampant. Identity thieves obtain credit in an otherwise creditworthy person’s name. The victim of these crimes can spend hundreds of hours repairing the damage. This is one of the primary reasons why it is very important not to reveal personal information on the Internet.
Finally, spamming is now subject to federal regulations, the violations of which are now a federal crime by virtue of the CAN-SPAM Act. This law serves as the vehicle to prosecute senders of large quantities of unsolicited e-mails if those e-mails do not meet the federal requirements.18 U.S.C. §1037. Marketers, beware!
Environmental Crimes
Environmental crimes are actions that violate federal or state statutes relating to the environment, which carry criminal sanctions. The Environmental Protection Agency enforces federal environmental statutes, including those that carry a criminal penalty. Many corporations have been convicted of environmental crimes. For instance, corporations that illegally dump toxic substances into waterways, illegally harm endangered species or those species’ habitats, or trade in illegal substances that have been banned due to their propensity to cause great harm to the environment are all engaged in environmental crimes. U.S. federal environmental statutes that carry criminal penalties include the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; and the Endangered Species Act. Additionally, state environmental law statutes frequently carry criminal penalties as well.
Recent examples of corporate convictions for environmental crimes can be found in "Hyperlink: Federal Environmental Criminal Convictions".
Hyperlink: Federal Environmental Criminal Convictions
www.epa.gov/compliance/resources/cases/criminal/highlights/2010/index.html
Check out this link to explore recent environmental crime convictions. Corporate convictions are not uncommon. For example, the Tulip Corporation of New York was convicted for illegally storing lead-contaminated materials without a permit. Penalties included a \$100,000 fine and a \$25,000 to Buffalo Niagara Riverkeepers.
In another case, Mar-Cone Appliance Part Co. was convicted of purchasing and selling ozone-depleting refrigerant gas, which was illegally smuggled into the United States in violation of the Clean Air Act. The sentence included a five-year probation for the business, a half-million-dollar criminal fine, and a four-hundred-thousand-dollar payment to a nonprofit organization. The company distributed this illegal substance throughout the United States, which was an action condemned as undermining global environmental efforts to reduce ozone damage for personal gain.
Blue-Collar Crime
Blue-collar crime is a generic term used to describe crimes that are not white-collar crimes. In business, property crimes (rather than person crimes) are a primary concern. A property crime is a crime involving damage to property, while a person crime is a crime involving the injury to a person’s body. Larceny is a major concern for many businesses. White-collar criminals are not the only ones who commit larceny. In retail, for instance, primary loss prevention concerns include shoplifting. Shoplifting is a serious and prevalent crime. Additionally, in any type of business, employee theft is a serious problem. Last, vandalism is unauthorized property damage, and any business with a physical presence can become the target of vandals.
Key Takeaways
Crime is a very important consideration in the business world. White-collar crimes are particularly insidious because white-collar criminals work from the inside, can be difficult to spot since they often hold positions of trust, and use deception as their primary tool. Blue-collar crimes also pose substantial risk of loss for businesses. Fraud, cybercrime, environmental crime, organized crime, and various forms of property crimes are all serious threats to businesses. Crime carries high personal costs not only to the individuals involved in the misconduct but also to society at large, including the corporations and others who depend on those corporations.
Exercise \(1\)
1. Consider the video in "Hyperlink: Too Good to Be True? Statistically Impossible Returns" concerning Harry Markopolos’s use of statistical modeling to identify Bernie Madoff’s Ponzi scheme. What role should statistical analysis and probability modeling have played in the regulatory environment that could have identified the Madoff Ponzi scheme disaster earlier?
2. How can businesses protect themselves from embezzlement? What are some specific strategies that could be devised to ensure that bookkeepers or accountants do not skim money from the business?
3. If you caught an employee stealing one dollar’s worth of office supplies, what would you do? What about twenty-five dollars’ worth of supplies? One hundred dollars’? One thousand? Should employees be trained not to even take a pencil home? Would that type of training be worth the cost of the training itself?
4. Check out "Video Clip: Who Said Antitrust Is Boring? Not Hollywood!" to review some of the convictions against corporations. Are penalties payable to nonprofit environmental organizations appropriate penalties for corporate convictions for environmental crimes? Why or why not? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/10%3A_Criminal_Law/10.03%3A_Crime.txt |
Learning Objectives
• Explore strategies for businesses to minimize criminal liability.
• Examine whistleblower protections.
Businesses can engage in affirmative actions to reduce criminal liability. Likewise, individuals do not have to sit by passively if they know that criminal activity is afoot. This section addresses specific strategies and laws that can help combat crime in the business world.
Businesses should conduct annual training sessions, such as ethics training, to help ensure good workplace ethics. They should develop company-wide codes of ethics, which serve as the organizational commitment to ethical behavior. This can go far toward developing a corporate culture that values ethical behavior and condemns unethical actions, by providing leadership that serves as positive role models for all employees. Some companies, such as Boeing, have instituted an ethics hotline, which allows employees to anonymously report unethical behavior so that it can be investigated. Additionally, federal sentencing guidelines in place for organizations state that organizations that maintain a rigorous compliance program to detect and report violations of the law, and voluntarily disclose those violations when they occur, are eligible for significantly reduced sentences and fines.
Sometimes, of course, things still go wrong. A person who observes illegal behavior in the workplace may choose not to participate in that illegal behavior. Such a person can even choose to become a whistleblower. Whistleblowers are people who report the illegal activity of their employers or of their organization to authorities. Typically, the whistleblowers have observed some wrongdoing that may harm others, and they decide to “blow the whistle” to protect the potential victims or to simply stop the wrongdoing.
Whistleblowers face many challenges in the workplace, not the least of which is the stigma associated with blowing the whistle. Paradoxically, even though the whistleblower may be preventing harm to innocent people, other employees may view the whistleblower as someone who has betrayed the organization. Because of this, whistleblowers are often placed in a terrible ethical dilemma, because while they may observe wrongdoing, they may not feel comfortable in reporting the illegal activity. They may fear losing their job or not being able to find a new job. Prospects of losing one’s status, friends, or reputation can prevent many people from blowing the whistle, even though they may wish the behavior to stop.
Whistleblower protection laws prohibit retaliatory action against whistleblowers. Some statutes contain whistleblower protection provisions. For example, the Sarbanes-Oxley Act contains whistleblower protection, but the statute is not entirely devoted to whistleblower protection. The False Claims Act provides that anyone who blows the whistle on a federal contractor committing fraud on the government can personally receive a portion of any amount recovered, up to 25 percent. Despite these protections, many real-world whistleblowers have discovered that the laws are cold comfort for the realities that face them after whistle is blown. Check out "Hyperlink: Whistleblower Law Blog", which lists many of the statutes under which whistleblower protections are offered.
Hyperlink: Whistleblower Law Blog
Check out the links on the right side of the Web page below. These are categories of blog entries, but they also represent a list of many federal whistleblower protections:
http://employmentlawgroupblog.com
Corporations can also avail themselves of safe harbor provisions in certain statutes. If they see criminal behavior and realize that they may be implicated in the criminal behavior, they can report certain actions to authorities, which will allow them to receive a lesser penalty, or no penalty at all. Only a few criminal statutes have safe harbor provisions, however.
Key Takeaways
Businesses can encourage ethical behavior in the workplace to help employees avoid illegal behavior through training seminars, ethical leadership, and codes of ethics. Whistleblower protection laws and provisions prohibit retaliation against whistleblowers. However, whistleblowers often experience negative consequences when they report the illegal activities of their organization to the authorities.
Exercise \(1\)
1. Find a corporate code of ethics by searching for “code of ethics” in your Internet browser. Is this a good code of ethics? How could it be changed? Do you think the employees pay attention to it? How would you ensure that your employees believed in and adopted your company’s code of ethics? Should employees who do not follow the code of ethics, but who do not break any laws or company polices, be terminated? Why or why not?
2. Should whistleblowing be encouraged by businesses? Why or why not?
3. Imagine a scenario in which you would choose to blow the whistle. How does that differ from a situation in which you would not blow the whistle?
4. Develop an outline of topics that you would present to employees to train them to be vigilant against criminal behavior in your organization. How could you ensure that employees understood the training?
10.05: Concluding Thoughts
Crime statistics in the United States illustrate the sobering reality that businesses must maintain vigilance against criminal activities. Threats arise from the inside—from employees, officers, directors, and employees—as well as from the outside, from professional or opportunistic criminals. It makes good business sense to practice both offensive and defensive strategies to stave off these threats. This can best be accomplished through proactive policies that encourage ethical behavior, encourage whistleblowing, and create disincentives for violating the law in the form of company policies, training programs, and codes of ethics. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/10%3A_Criminal_Law/10.04%3A_Minimizing_Corporate_Criminal_Liability_and_Losses_Attributed_to_Crime.txt |
Learning Objectives
• Businesses must be organized in order to effectively conduct their operations. This organization can run from simple to complex and depends greatly on the needs of the business owners to structure their liability and taxes. In this chapter, you’ll learn about the factors that go into organizing a business. Specifically, you should be able to answer the following questions:
• What are the available entity choices when conducting business?
• What are the factors that determine entity selection?
• What are the traditional entity choices, and how are they different from each other?
Many of you may be reading this chapter on a laptop or desktop designed and manufactured by Apple Inc. You may own a phone from Apple, or perhaps a portable music device. The company’s innovation, product development process, marketing capabilities in creating new and unthought-of markets, and ability to financially reward its owners are well known. While you might enjoy Apple products as a consumer, have you ever thought about Apple as a corporation? Its corporate headquarters in Cupertino, California (Figure 11.1.1 "Apple’s Headquarters in Cupertino, California"), is the physical embodiment of this entity we call a corporation, but what does that mean? It might surprise you to learn that this building, or rather the legal concept of the entity that occupies it, is more like you than you realize. For example, just like you, this entity can own property. This entity can enter into contracts to buy and sell goods. This entity can hire and fire employees. This entity can open bank accounts and engage in complex financial transactions. This entity can sue others, and can be sued in court. This entity even has constitutional rights, just like you. Unlike you, however, this entity does not breathe, does not bleed, and in fact may be immortal. And most unlike you, this entity has no independent judgment of its own, no moral compass or conscience to tell it the difference between right and wrong. In this chapter we’ll explore corporate entities such as Apple Inc. in detail. We’ll examine why human beings choose to organize into corporate entities in the first place, and why the law recognizes these entities for public policy purposes. We’ll start by looking at the factors that go into making a decision about entity choice, and then examine the available choices in detail.
Try to recall the basic function of a business. At its most fundamental level, a business exists to make a profit for its owners. In a capitalist market-driven economy, a business that fails to make a profit ultimately ceases to exist, overtaken by creditors and competitors. The need to make a profit is one truism that binds all businesses together, but beyond that, it’s hard to draw generalizations about business operations. The world of business is as varied as human experience itself, ranging from the neighborhood kids who shovel snow in the winter and sell lemonade in the summer, to the neighborhood pizza restaurant, to the small tool-and-die factory on the outskirts of town making machine tools, to the multinational corporation with hundreds of thousands of employees scattered throughout the globe. Some businesses make things in factories (manufacturers), other businesses sell things that other businesses make (retailers or franchisees), and still other businesses exist to help both the makers and sellers make and sell better (business consultants). Some businesses don’t make things at all, and instead profit by selling their services (think of an accounting or law firm, a house painting company, or a hotel) or by lending money at a higher rate of interest than it can borrow.
With this breadth and diversity, it’s not surprising that there is no “one size fits all” approach to choosing a business organization. When choosing what form of entity is best, business professionals must consider several factors. First, they have to consider how much it costs to create the entity and how hard it is to create. Some entities are easy to create, while others are more complicated and have ongoing maintenance requirements that are important to consider. Second, they have to consider how easy it is for the business to continue if the founder dies, decides to retire, or decides to enter a new business altogether. Third, they have to consider how difficult it might be to raise money to grow or expand the business. Fourth, they have to consider what sort of managerial control they wish to keep on the business, and whether they are willing to cede control to outsiders. Fifth, they have to consider whether or not they wish to eventually expand ownership to members of the public. Sixth, they must give some thought to tax planning to minimize the taxes paid on earnings and income. Finally, and most importantly, they have to consider whether or not they wish to protect their personal assets from claims, a feature known as limited liability.
It’s important to remember that choosing a business organization is different from what kind of business you run. For example, some businesses are known as franchises because they operate under a license agreement (contract) whereby they agree to follow certain standards set by the franchisor, purchase their goods from the franchisor, and maybe share either a royalty fee or percentage of profits with the franchisor. Franchises are a very common type of business (especially in the food and services industries), but there is no typical form of business for a franchise. Depending on the needs of the franchise owners, a franchise could be a sole proprietorship, a limited liability company (LLC), or a corporation. Similarly, we sometimes refer to “nonprofit organizations” such as universities or charities as separate legal entities. Although they are nonprofit, some of these enterprises can be very large, with complex operations that spread across borders (for example, the Red Cross or Doctors Without Borders). For tax purposes, nonprofits do not have to pay any taxes if they meet strict qualifications under IRS guidelines to become a “501(c)(3)” organization (named for the section of the Internal Revenue Code that grants nonprofit status), but from a legal perspective, these entities can also take on any number of forms, from sole proprietorships to corporations.
If you are ever in a position to start a new business venture, your focus is typically on growing revenue and cutting costs so that you can maximize profit. You may not be very concerned with entity choice at the outset, since so many other considerations are competing for your attention. Once an entity choice is made, however, it is difficult (but not impossible) to change to another selection. Since entity choice can have a profound effect on these considerations, it is important to gain a basic understanding of the available choices so that you, the business professional, can focus on the business fundamentals rather than legal or accounting details.
Key Takeaways
Business organizations are an important part of a business’s structure. Different organizations provide different advantages and disadvantages in creation cost and simplicity, ongoing maintenance requirements, dissolution and continuity, fundraising, managerial control, public ownership, tax planning, and limited liability. The type of business being conducted (for-profit, nonprofit, franchise) has little to do with the business organization in which the business is conducted. Many business organizations take the form of separate legal entities, which the law recognizes as nearly like persons for purposes of legal rights. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/11%3A_Business_Organizations/11.01%3A_Introduction.txt |
Learning Objectives
• Understand the importance of sole proprietorships in our economy.
• Explore the advantages presented by doing business as a sole proprietorship.
• Assess the disadvantages and dangers of doing business as a sole proprietorship.
Lily, a college sophomore, is home for the summer. Unable to find even part-time work in a tough economy, she begins to help her parents by cleaning up their overgrown garden. After a few days of this work, Lily discovers that she enjoys doing this and is good at it. The neighbors see the work Lily is doing, and they ask her to help their gardens too. Within a week, Lily has scheduled appointments and jobs throughout the neighborhood. Using the money she has earned, she places orders for additional landscaping equipment and materials with a local retailer. Within a month, she is so busy that she has to hire workers to do some of the more routine tasks, such as mulching and lawn mowing, for her. By the middle of summer, Lily has applied knowledge she picked up in her business classes by developing a name for her business (Lily’s Landscaping) and developing marketing materials such as a Facebook fan page, flyers to be posted at local stores, business cards, and a YouTube video showing her projects. By the end of the summer, Lily has earned a healthy profit for all her work and developed valuable know-how on how to run her business. She has to stop working when the weather gets cooler and she returns to school, but promises herself to restart the business next summer.
Lily is a sole proprietor, the most common form of doing business in the United States. From a legal perspective, there is absolutely no difference between Lily and Lily’s Landscaping—they are one and the same, and completely interchangeable with each other. If Lily’s Landscaping makes a profit, that money belongs exclusively to Lily. If Lily’s Landscaping needs to pay a bill to a supplier or creditor, and Lily’s Landscaping doesn’t have the money, then Lily has to pay the bill. When Lily’s Landscaping enters into a contract to plant a new flower garden, it is actually Lily that is entering into the contract. If Lily’s Landscaping wants to open a bank account to accept customer payments or to pay bills, then Lily will actually own the account. When Lily’s Landscaping enters into a contract promising to pay a worker to mow lawns or lay mulch, it is actually Lily that is entering into that contract. Lily can even apply for a “doing business as” or d.b.a. filing in her state, so that her business can carry on under the fictitious name “Lily’s Landscaping.” Note, however, that legally Lily’s Landscaping is still no different from Lily herself. Any fictitious name therefore cannot have any words in it that suggest a separate entity, such as “Corp.” or “Inc.”
Hyperlink: Doing Business As
www.business.gov/register/business-name/dba.html
The legal name for a sole proprietorship is the owner’s name. Some business owners are happy to use their own names for their business, but for marketing and branding reasons many business owners prefer to use a fictitious name. Using a fictitious name is permitted under state laws where the business operates, using a filing known as a d.b.a. filing. Explore this Web site to find out how to file a d.b.a. filing in your state.
There are many advantages to doing business as a sole proprietor, advantages that make this form of doing business extremely popular. First, it’s easy to create a sole proprietorship. In effect, there is no creation cost or time, since there is nothing to create. The entrepreneur in charge of the business simply starts doing business, charging money, and providing goods or services. Depending on the business, some sole proprietors may need to obtain permits or licenses before they can begin operating. A pizza restaurant, for example, may need to obtain a food service license, while a bar or tavern may need to obtain a liquor license. A small grocery store may need a license to collect sales tax. Do not confuse these governmental permits with legal approval for a business organization; in a sole proprietorship, the license is granted to the individual owner.
Another key advantage to sole proprietorships is autonomy. Since the owner is the business, Lily can decide for herself what she wants to do to Lily’s Landscaping. She could set her own hours, grow as quickly or slowly as she wants, expand into new lines of businesses, take a vacation, or wind down the business, all at her own whim and direction. That autonomy also comes with total ownership of the business’s finances. All the money that Lily’s Landscaping takes in, even if it is in a separate bank account, belongs to Lily, and she can do with that money whatever she wants.
These advantages must be weighed against some very important disadvantages. First, since a sole proprietorship can have only one owner, it is impossible to bring in others to the business. Lily cannot bring in her college roommate to work on Web site design as a partner in the business, for example. In addition, since the business and the owner are identical, it is impossible to pass on the business from Lily. If Lily dies, the business dies with her. Of course, she can always sell or give away the business assets (equipment, inventory, as well as intangible assets such as customer lists and goodwill).
Raising working capital can be a problem for sole proprietors, especially those early in their business ventures. Many entrepreneurial ventures are built on great ideas but need capital to flourish and develop. If the entrepreneur lacks individual wealth, then he or she must seek those funds from other sources. For example, if Lily decides to expand her business and asks her wealthy uncle to invest money in Lily’s Landscaping, there is no way for her uncle to participate as a profit-sharing owner in the business. He can make a loan to her, or enter into a profit-sharing contract with her, but there is no way for him to own any part of Lily’s Landscaping. Traditionally, most sole proprietors seek funding from banks. Banks approach these loans just like any other personal loan to an individual, such as a car loan or mortgage. Down payment requirements may be high, and typically the banks require some form of personal collateral to guarantee the loan, even though the loan is to be used to grow the business. Many sole proprietors resort to running their personal credit cards to the maximum limit, or transferring balances between credit cards, in the early stage of their business.
Hyperlink: Small Businesses Squeezed as Banks Limit Lending
http://www.npr.org/templates/story/story.php?storyId=113816657
During the Great Recession, many banks faced a liquidity crisis as loans they made performed poorly. Lending tightened, interest rates went up, credit lines went down, and standards became higher. The effect on many sole proprietors, including those featured in this National Public Radio story, has been very challenging.
In certain industries, entrepreneurs may be able to find financing through venture capital. Venture capital firms combine funds from institutional investors and high net-worth individuals (known as angel investors) to identify promising start-ups, and to fund them in a private placement offering until the start-up has developed its technology to a commercially feasible stage. At that point, the venture capital firm seeks an exit strategy, typically through offering sale of the business to the public in an initial public offering (IPO).
Tax planning can also be challenging for the sole proprietor. Since there is no legal distinction between the owner and the business, all the income generated by the business is treated as ordinary personal income to the owner. The United States has several income tax rates depending on the type of income being taxed, and ordinary personal income typically suffers the highest rate of taxation. Being able to plan effectively to take advantage of lower income tax rates is very difficult for the sole proprietor.
Finally, sole proprietors suffer from one hugely unattractive feature: unlimited liability. Since there is no difference between the owner and the business, the owner is personally liable for all the business’s debts and obligations. For example, let’s say that Lily’s Landscaping runs into some financial trouble and is unable to generate planned revenue in a given month due to unexpectedly bad weather. Creditors of the business include landscaping supply stores, employees, and outside contractors such as the company that prints business cards and maintains the business Web site. Lily is personally liable to pay these bills, and if she doesn’t she can be sued for breach of contract. Some proprietors are very successful and can generate many hundreds of thousands of dollars in profit every year. Unlimited liability puts all the personal assets of the sole proprietor reachable by creditors. Personal homes, automobiles, boats, bank accounts, retirement accounts, and college funds—all are within reach of creditors. With unlimited liability, all it takes is one successful personal injury lawsuit, not covered by insurance or exceeding insurance limits, to wipe out years of hard work by an individual business owner.
For these reasons, while sole proprietors are still the most common way of doing business in the United States, they are in many ways the most unattractive. Thankfully, modern business law creates real and viable alternatives for sole proprietors, as we’ll discuss shortly.
Key Takeaways
Sole proprietorships are the most common way of doing business in the United States. Legally, there is no difference or distinction between the owner and the business. The legal name of the business is the owner’s name, but owners may carry on business operations under a fictitious name by filing a d.b.a. filing. Sole proprietors enjoy ease of start-up, autonomy, and flexibility in managing their business operations. On the downside, they have to pay ordinary income tax on their business profits, cannot bring in partners, may have a hard time raising working capital, and have unlimited liability for business debts.
Exercise \(1\)
1. Many household services professionals such as carpenters, plumbers, and electricians do business as sole proprietors. If they make a promise to their customers that their work (not the products themselves) will be free from defects for a certain period of time (i.e., a warranty), and then subsequently sell their business assets to another individual, is the buyer bound by the promises made by the seller? Why or why not?
2. D.b.a. statutes prohibit sole proprietors from using certain words such as “company,” “Corp.” or “Inc.” in their fictitious names. Why do you think this rule exists?
3. If a sole proprietor dies suddenly, what do you think happens to the business run by the sole proprietor? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/11%3A_Business_Organizations/11.02%3A_Sole_Proprietorships.txt |
Learning Objectives
• Learn about how general and limited partnerships are formed.
• Explore the major differences between general and limited partnerships.
• Understand major advantages and disadvantages to doing business as general or limited partnerships.
Let’s assume that after her first summer running Lily’s Landscaping, Lily decides that it’s time to take her business to the next level. She has gathered a lot of expertise in running the operations in her business, from placing orders with suppliers to scheduling workers for client projects. She realizes, however, that she’s not very good at marketing or accounting, and that if her business is to grow, she needs to bring someone on board who can create a strong brand and strategy for growth, as well as keep good records of her accounts so that she can plan for the future. Fortunately, her good friend Adam is a double major in accounting and marketing, and after a series of discussions, Adam and Lily decide to run Lily’s Landscaping together.
Lily and Adam have formed a general partnership. The moment they agreed to run Lily’s Landscaping together, and to share in the profits and losses of the business together, the partnership was formed. Although they formed their partnership verbally, most general partnerships are formed formally, with partners writing down their agreement in a special type of contract known as the articles of partnership. The articles can set forth anything the partners wish to include about how the partnership will be run. Normally, all general partners have an equal voice in management, but as a creation of contract, the partners can modify this if they wish. As in a sole proprietorship, there is no state involvement in creating a general partnership because there is no separation from the business and the partners—they are legally the same.
General partnerships are dissolved as easily as they are formed. Since the central feature of a general partnership is an agreement to share profits and losses, once that agreement ends, the general partnership ends with it. In a general partnership with more than two persons, the remaining partners can reconstitute the partnership if they wish, without the old partner. A common issue that arises in this situation is how to value the withdrawing partner’s share of the business. Articles of partnership therefore typically include a buy/sell agreement, setting forth the agreement of the partners on how to account for a withdrawing partner’s share, which the remaining partners then agree to pay to the withdrawing partner (or the spouse or heir if the partner dies).
Hyperlink: A Law Firm Partner Is Fired
http://www.law.cornell.edu/nyctap/I96_0191.htm
After a nearly twenty-year career, Evan Dawson was a partner at a major New York City law firm, White & Case. In 1988 the firm tried to persuade him to withdraw as a partner, but he refused. In July 1988 the other partners in the firm voted to dissolve the partnership and then immediately re-formed again, without Dawson as a partner. He had effectively been fired as a partner from a general partnership. Dawson filed a suit against White & Case for an “accounting,” claiming that the “goodwill” of the law firm should be part of the valuation of the partnership. The common law in New York at the time was that professional partnerships like law firms have no goodwill. The reasoning behind the rule is that as professionals, law firm partners develop and cultivate their own goodwill with clients, and if a partner leaves the firm then the goodwill leaves with that partner. The New York Court of Appeals, in its opinion on this case, held that unless the partnership agreement states otherwise, goodwill is indeed an asset of the partnership and has to be distributed when the partnership is dissolved.
A general partnership is taxed just like a sole proprietorship. The partnership is considered a disregarded entity for tax purposes, so income “flows through” the business to the partners, who then pay ordinary income tax on the business income. The partnership may file an information return, reporting total income and losses for the partnership, and how those profits and losses are allocated among the general partners. As is the case for sole proprietors, tax planning opportunities are limited for general partners.
General partnerships are also similar to sole proprietorships in unlimited liability. Every partner in the partnership is jointly and severally liable for the partnership’s debts and obligations. This is a very unattractive feature of general partnerships. One partner may be completely innocent of any wrongdoing and still be liable for another partner’s malpractice or bad acts.
Let’s assume that the general partnership formed by Lily and Adam flourishes and becomes profitable. To grow the landscaping business, they want to bring in Lily’s wealthy uncle as a partner. The uncle, however, is worried about maintaining limited liability. In most states, they can form a limited partnership. A limited partnership has both general partners and limited partners. In this case, Lily and Adam will remain as general partners in the business, but the uncle can become a limited partner and enjoy limited liability. As a limited partner, the most he can lose is the amount of his investment into the business, nothing more. Limited partnerships have to be formed in compliance with state law, and limited partners are generally prohibited from participating in day-to-day management of the business.
Key Takeaways
A general partnership is formed when two or more persons agree to share profits and losses in a joint business venture. A general partnership is not a separate legal entity, and partners are jointly and severally liable for the partnership’s debts, including acts of malpractice by other partners. Income from a general partnership flows through to the partners, who pay tax at the ordinary personal income tax rate. In most states general partners can also bring in limited partners, creating a limited partnership. Limited partnerships must be formed in compliance with state statutes. Limited partners enjoy limited liability but generally cannot participate in day-to-day management of the business.
Exercise \(1\)
1. John approaches his friend Kevin and offers Kevin 50 percent of the profits from his new online venture if Kevin designs the Web site for the venture. Kevin says nothing, and later that night begins work on the Web site, which he then sends to John for his approval. Have John and Kevin formed a general partnership? Why or why not?
2. Do you think it’s ethical for a general partnership to fire a partner by dissolving the partnership and then re-forming without the dismissed partner? Why or why not?
3. Do modern professional firms such as law firms or accounting firms face the same problems as White & Case did in "Hyperlink: A Law Firm Partner Is Fired"? Why or why not? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/11%3A_Business_Organizations/11.03%3A_Partnerships.txt |
Learning Objectives
• Learn about the advantages and disadvantages of corporations.
• Study roles and duties of shareholders, directors, and officers in corporations.
• Explore issues surrounding corporate governance.
• Understand how corporations are taxed.
So far in this chapter, we have explored sole proprietorships and partnerships, two common and relatively painless ways for persons to conduct business operations. Both these forms of business come with significant disadvantages, however, especially in the area of liability. The idea that personal assets may be placed at risk by business debts and obligations is rightfully scary to most people. Businesses, therefore, need a form of business organization that provides limited liability to owners and is also flexible and easy to manage. That is where the modern corporation comes in.
Consider, for example, tech entrepreneur and Apple co-founder Steve Jobs (Figure 11.4.1 "Apple Cofounder Steve Jobs"). As a young man, he was a college dropout without much ability for computer engineering. If doing business as a sole proprietor was his only option, Apple would not exist today. However, Jobs met a talented computer engineer named Steve Wozniak, and the two decided to pool their talents to form Apple Computer in 1976. A year later, the company was incorporated and in 1980 went public in an initial public offering (IPO). Incorporation allowed Jobs much more flexibility in carrying out business operations than a mere sole proprietorship could. It allowed him to bring in other individuals with distinct skills and capabilities, raise money in the early stage of operations by promising shares in the new company, and eventually become very wealthy by selling stock, or securities, in the company.
Hyperlink: Great Things in Business
http://cnettv.cnet.com/60-minutes-steve-jobs/9742-1_53-50004696.html
Sole proprietorships are limiting not just in a legal sense but also in a business sense. As Steve Jobs points out in this video, great things in business are never accomplished with just one person; they are accomplished with a team of people. While Jobs may have had the vision to found Apple Inc. and maintains overall strategic leadership for the company, the products the company releases today are very much the result of the corporation, not any single individual.
Unlike a sole proprietorship or general partnership, a corporation is a separate legal entity, separate and distinct from its owners. It can be created for a limited duration, or it can have perpetual existence. Since it is a separate legal entity, a corporation has continuity regardless of its owners. Entrepreneurs who are now dead founded many modern companies, and their companies are still thriving. Similarly, in a publicly-traded company, the identity of shareholders can change many times per hour, but the corporation as a separate entity is undisturbed by these changes and continues its business operations.
Since corporations have a separate legal existence and have many legal and constitutional rights, they must be formed in compliance with corporate law. Corporate law is state law, and corporations are incorporated by the states; there is no such thing as a “U.S. corporation.” Most corporations incorporate where their principal place of business is located, but not all do. Many companies choose to incorporate in the tiny state of Delaware even though they have no business presence there, not even an office cubicle. Delaware chancery courts have developed a reputation for fairly and quickly applying a very well-developed body of corporate law in Delaware. The courts also operate without a jury, meaning that disputes heard in Delaware courts are usually predictable and transparent, with well-written opinions explaining how the judges came to their conclusions.
Hyperlink: How to Incorporate in Your State
www.business.gov/register/incorporation
Since corporations are created, or chartered, under state law, business founders must apply to their respective state agencies to start their companies. These agencies are typically located within the Secretary of State. Click the link to explore how to fill out the forms for your state to start a company. You may be surprised at how quickly, easily, and inexpensively you can form your own company! Don’t forget that your company name must not be the same as another company’s name. (Most states allow you to do a name search first to ensure that name is available.)
To start a corporation, the corporate founders must file the articles of incorporation with the state agency charged with managing business entities. These articles of incorporation may vary from state to state but typically include a common set of questions. First, the founders must state the name of the company and whether the company is for-profit or nonprofit. The name has to be unique and distinctive, and must typically include some form of the words “Incorporated,” “Company,” “Corporation,” or “Limited.” The founders must state their identity, how long they wish the company to exist, and the company’s purpose. Under older common law, shareholders could sue a company that conducted business beyond the scope of its articles (these actions are called ultra vires), but most modern statutes permit the articles to simply state the corporation can carry out “any lawful actions,” effectively rendering ultra vires lawsuits obsolete in the United States. The founders must also state how many shares the corporation will issue initially, and the par value of those shares. (Of course, the company can issue more shares in the future or buy them back from shareholders.)
Unlike sole proprietorships, corporations can be quite complicated to manage and typically require attorneys and accountants to maintain corporate books in good order. In addition to the foundation requirements, corporate law requires ongoing annual maintenance of corporations. In addition to filing fees due at the time of incorporation, there are typically annual license fees, franchise fees and taxes, attorney fees, and fees related to maintaining minute books, corporate seals, stock certificates and registries, as well as out-of-state registration. A domestic corporation is entitled to operate in its state of incorporation but must register as a foreign corporation to do business out of state. Imagine filing as a foreign corporation in all fifty states, and you can see why maintaining corporations can become expensive and unwieldy.
Video Clip: Monstrous Obligations
(click to see video)
Video Clip: The Pathology of Commerce
(click to see video)
Owners of companies are called shareholders. Corporations can have as few as one shareholder or as many as millions of shareholders, and those shareholders can hold as few as one share or as many as millions of shares. In a closely held corporation, the number of shareholders tends to be small, while in a publicly traded corporation, the body of shareholders tends to be large. In a publicly traded corporation, the value of a share is determined by the laws of supply and demand, with various markets or exchanges providing trading space for buyers and sellers of certain shares to be traded. It’s important to note that shareholders own the share or stock in the company but have no legal right to the company’s assets whatsoever. As a separate legal entity, the company owns the property.
Shareholders of a corporation enjoy limited liability. The most they can lose is the amount of their investment, whatever amount they paid for the shares of the company. If a company is unable to pay its debts or obligations, it may seek protection from creditors in bankruptcy court, in which case shareholders lose the value of their stock. Shareholders’ personal assets, however, such as their own homes or bank accounts, are not reachable by those creditors.
Shareholders can be human beings or can be other corporate entities, such as partnerships or corporations. If one corporation owns all the stock of another corporation, the owner is said to be a parent company, while the company being owned is a wholly owned subsidiary. A parent company that doesn’t own all the stock of another company might call that other company an affiliate instead of a subsidiary. Many times, large corporations may form subsidiaries for specific purposes, so that the parent company can have limited liability or advantageous tax treatment. For example, large companies may form subsidiaries to hold real property so that premises liability is limited to that real estate subsidiary only, shielding the parent company and its assets from tort lawsuits. Companies that deal in a lot of intellectual property may form subsidiaries to hold their intellectual property, which is then licensed back to the parent company so that the parent company can deduct royalty payments for those licenses from its taxes. This type of sophisticated liability and tax planning makes the corporate form very attractive for larger business in the United States.
Corporate law is very flexible in the United States and can lead to creative solutions to business problems. Take, for example, the case of General Motors Corporation. General Motors Corporation was a well-known American company that built a global automotive empire that reached virtually every corner of the world. In 2009 the General Motors Corporation faced an unprecedented threat from a collapsing auto market and a dramatic recession, and could no longer pay its suppliers and other creditors. The U.S. government agreed to inject funds into the operation but wanted the company to restructure its balance sheet at the same time so that those funds could one day be repaid to taxpayers. The solution? Form a new company, General Motors Company, the “new GM.” The old GM was brought into bankruptcy court, where a judge permitted the wholesale cancellations of many key contracts with suppliers, dealers, and employees that were costing GM a lot of money. Stock in the old GM became worthless. The old GM transferred all of GM’s best assets to new GM, including the surviving brands of Cadillac, Chevrolet, Buick, and GMC; the plants and assets those brands rely on; and the shares in domestic and foreign subsidiaries that new GM wanted to keep. Old GM (subsequently renamed as “Motors Liquidation Company”) kept all the liabilities that no one wanted, including obsolete assets such as shuttered plants, as well as unpaid claims from creditors. The U.S. federal government became the majority shareholder of General Motors Company, and may one day recoup its investment after shares of General Motors Company are sold to the public. To the public, there is very little difference in the old and new GM. From a legal perspective, however, they are totally separate and distinct from each other.
One exception to the rule of limited liability arises in certain cases mainly involving closely held corporations. Many sole proprietors incorporate their businesses to gain limited liability but fail to realize when they do so that they are creating a separate legal entity that must be respected as such. If sole proprietors fail to respect the legal corporation with an arm’s-length transaction, then creditors can ask a court to pierce the corporate veil. If a court agrees, then limited liability disappears and those creditors can reach the shareholder’s personal assets. Essentially, creditors are arguing that the corporate form is a sham to create limited liability and that the shareholder and the corporation are indistinguishable from each other, just like a sole proprietorship. For example, if a business owner incorporates the business and then opens a bank account in the business name, the funds in that account must be used for business purposes only. If the business owner routinely “dips into” the bank account to fund personal expenses, then an argument for piercing the corporate veil can be easily made.
Not all shareholders in a corporation are necessarily equal. U.S. corporate law allows for the creation of different types, or classes, of shareholders. Shareholders in different classes may be given preferential treatment when it comes to corporate actions such as paying dividends or voting at shareholder meetings. For example, founders of a corporation may reserve a special class of stock for themselves with preemptive rights. These rights give the shareholders the right of first refusal if the company decides to issue more stock in the future, so that the shareholders maintain the same percentage ownership of the company and thus preventing dilution of their stock.
A good example of different classes of shareholders is in Ford Motor Company stock. The global automaker has hundreds of thousands of shareholders, but issues two types of stock: Class A for members of the public and Class B for members of the Ford family. By proportion, Class B stock is far outnumbered by Class A stock, representing less than 10 percent of the total issued stock of the company. However, Class B stock is given 40 percent voting rights at any shareholder meeting, effectively allowing holders of Class B stock (the Ford family) to block any shareholder resolution that requires two-thirds approval to pass. In other words, by creating two classes of shareholders, the Ford family continues to have a strong and decisive voice on the future direction of the company even though it is a publicly-traded company.
Shareholder rights are generally outlined in a company’s articles of incorporation or bylaws. Some of these rights may include the right to obtain a dividend, but only if the board of directors approves one. They may also include the right to vote in shareholder meetings, typically held annually. It is common in large companies with thousands of shareholders for shareholders to not attend these meetings and instead cast their votes on shareholder resolutions through the use of a proxy.
Video Clip: Activist Shareholders at Wal-Mart
(click to see video)
Under most state laws, including Delaware’s business laws, shareholders are also given a unique right to sue a third party on behalf of the corporation. This is called a shareholder derivative lawsuit (so called because the shareholder is suing on behalf of the corporation, having “derived” that right by virtue of being a shareholder). In essence, a shareholder is alleging in a derivative lawsuit that the people who are ordinarily charged with acting in the corporation’s best interests (the officers and directors) are failing to do so, and therefore the shareholder must step in to protect the corporation. These lawsuits are very controversial because they are typically litigated by plaintiffs’ lawyers working on contingency fees and can be very expensive for the corporation to litigate. Executives also disfavor them because oftentimes, shareholders sue the corporate officers or directors themselves for failing to act in the company’s best interest.
One of the most important functions for shareholders is to elect the board of directors for a corporation. Shareholders always elect a director; there is no other way to become a director. The board is responsible for making major decisions that affect a corporation, such as declaring and paying a corporate dividend to shareholders; authorizing major new decisions such as a new plant or factory or entry into a new foreign market; appointing and removing corporate officers; determining employee compensation, especially bonus and incentive plans; and issuing new shares and corporate bonds. Since the board doesn’t meet that often, the board can delegate these tasks to committees, which then report to the board during board meetings.
Shareholders can elect anyone they want to a board of directors, up to the number of authorized board members as set forth in the corporate documents. Most large corporations have board members drawn from both inside and outside the company. Outside board members can be drawn from other private companies (but not competitors), former government officials, or academe. It’s not unusual for the chief executive officer (CEO) of the company to also serve as chair of the board of directors, although the recent trend has been toward appointing different persons to these functions. Many shareholders now actively vie for at least one board seat to represent the interests of shareholders, and some corporations with large labor forces reserve a board seat for a union representative.
Board members are given wide latitude to make business decisions that they believe are in the best interest of the company. Under the business judgment rule, board members are generally immune from second-guessing for their decisions as long as they act in good faith and in the corporation’s best interests. Board members owe a fiduciary duty to the corporation and its shareholders, and therefore are presumed to be using their best business judgment when making decisions for the company.
Shareholders in derivative litigation can overcome the business judgment rule, however. Another fallout from recent corporate scandals has been increased attention to board members and holding them accountable for actually managing the corporation. For example, when WorldCom fell into bankruptcy as a result of profligate spending by its chief executive, board members were accused of negligently allowing the CEO to plunder corporate funds. Corporations pay for insurance for board members (known as D&O insurance, for directors and officers), but in some cases D&O insurance doesn’t apply, leaving board members to pay directly out of their own pockets when they are sued. In 2005 ten former outside directors for WorldCom agreed to pay \$18 million out of their own pockets to settle shareholder lawsuits.
One critical function for boards of directors is to appoint corporate officers. These officers are also known as “C-level” executives and typically hold titles such as chief executive officer, chief operating officer, chief of staff, chief marketing officer, and so on. Officers are involved in everyday decision making for the company and implementing the board’s strategy into action. As officers of the company, they have legal authority to sign contracts on behalf of the corporation, binding the corporation to legal obligations. Officers are employees of the company and work full-time for the company, but can be removed by the board, typically without cause.
In addition to being somewhat cumbersome to manage, corporations possess one very unattractive feature for business owners: double taxation. Since corporations are separate legal entities, taxing authorities consider them as taxable persons, just like ordinary human beings. A corporation doesn’t have a Social Security number, but it does have an Employer Identification Numbers (EIN), which serves the same purpose of identifying the company to tax authorities. As a separate legal entity, corporations must pay federal, state, and local tax on net income (although the effective tax rate for most U.S. corporations is much lower than the top 35 percent income tax rate). That same pile of profit is then subject to tax again when it is returned to shareholders as a dividend, in the form of a dividend tax.
One way for closely held corporations (such as small family-run businesses) to avoid the double taxation feature is to elect to be treated as an S corporation. An S corporation (the name comes from the applicable subsection of the tax law) can choose to be taxed like a partnership or sole proprietorship. In other words, it is taxed only once, at the shareholder level when a dividend is declared, and not at the corporate level. Shareholders then pay personal income tax when they receive their share of the corporate profits. An S corporation is formed and treated just like any other corporation; the only difference is in tax treatment. S corporations provide the limited liability feature of corporations but the single-level taxation benefits of sole proprietorships by not paying any corporate taxes. There are some important restrictions on S corporations, however. They cannot have more than one hundred shareholders, all of whom must be U.S. citizens or resident aliens; can have only one class of stock; and cannot be members of an affiliated group of companies. These restrictions ensure that “S” tax treatment is reserved only for small businesses.
Key Takeaways
A corporation is a separate legal entity. Owners of corporations are known as shareholders and can range from a few in closely held corporations to millions in publicly held corporations. Shareholders of corporations have limited liability, but most are subject to double taxation of corporate profits. Certain small businesses can avoid double taxation by electing to be treated as S corporations under the tax laws. State law charters corporations. Shareholders elect a board of directors, who in turn appoint corporate officers to manage the company.
Exercise \(1\)
1. Henry Ford (Ford Motor Company), Ray Croc (McDonald’s), and Levi Strauss (Levi’s) were all entrepreneurs who decided to incorporate their businesses and in doing so created long-lasting legacies that outlive them. Why do you think these entrepreneurs were motivated to incorporate when incorporation meant giving up control of their companies?
2. Some corporations are created for just a limited time. Can you think of any strategic reasons why founders would create a corporation for just a limited time?
3. Recently some companies have come under fire for moving their corporate headquarters out of the country to tax havens such as Bermuda or Barbados. Which duty do you believe is higher, the duty of corporations to pay tax to government or the duty of corporations to pay dividends to shareholders? Why?
4. Some critics believe that the corporate tax code is a form of welfare, since many U.S. corporations make billions of dollars and don’t pay any tax. Do you believe this criticism is fair? Why or why not?
5. It is very easy to start a corporation in the United States. Take a look at how easy it is to start a corporation in China or India. Do you believe there is a link between ease of starting businesses and overall economic efficiency?
6. Do you agree with filmmaker Achbar that a corporation might be psychopathic? What do you think the ethical obligations of corporations are? Discuss. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/11%3A_Business_Organizations/11.04%3A_Corporations.txt |
Learning Objectives
• Learn about the development of limited liability entities.
• Explore how limited liability entities are created.
• Understand why limited liability entities are now heavily favored.
By now you should understand how easy yet dangerous it is to do business as a sole proprietor, and why many business organizations are drawn to the corporation as a form for doing business. As flexible as the corporation is, however, it is probably best suited for larger businesses. Annual meeting requirements, the need for directors and officers, and the unattractive taxation features make corporations unwieldy and expensive for smaller businesses. A form of business organization that provides the ease and simplicity of sole proprietorships, but the limited liability of corporations, would be much better suited for a wide range of business operations.
A limited liability company (LLC) is a good solution to this problem. LLCs are a “hybrid” form of business organization that offer the limited liability feature of corporations but the tax benefits of partnerships. Owners of LLCs are called members. Just like a sole proprietorship, it is possible to create an LLC with only one member. LLC members can be real persons or they can be other LLCs, corporations, or partnerships. Compared to limited partnerships, LLC members can participate in day-to-day management of the business. Compared to S corporations, LLC members can be other corporations or partnerships, are not restricted in number, and may be residents of other countries.
Taxation of LLCs is very flexible. Essentially, every tax year the LLC can choose how it wishes to be taxed. It may want to be taxed as a corporation, for example, and pay corporate income tax on net income. Or it may choose instead to have income “flow through” the corporate form to the member-shareholders, who then pay personal income tax just as in a partnership. Sophisticated tax planning becomes possible with LLCs because tax treatment can vary by year.
LLCs are formed by filing the articles of organization with the state agency charged with chartering business entities, typically the Secretary of State. Starting an LLC is often easier than starting a corporation. In fact, you might be startled at how easy it is to start an LLC; typical LLC statutes require only the name of the LLC and the contact information for the LLC’s legal agent (in case someone decides to file a lawsuit against the LLC). In most states, forming an LLC can be done by any competent business professional without any legal assistance, for minimal time and cost. Unlike corporations, there is no requirement for an LLC to issue stock certificates, maintain annual filings, elect a board of directors, hold shareholder meetings, appoint officers, or engage in any regular maintenance of the entity. Most states require LLCs to have the letters “LLC” or words “Limited Liability Company” in the official business name. Of course, LLCs can also file d.b.a. filings to assume another name.
Although the articles of organization are all that is necessary to start an LLC, it is advisable for the LLC members to enter into a written LLC operating agreement. The operating agreement typically sets forth how the business will be managed and operated. It may also contain a buy/sell agreement just like a partnership agreement. The operating agreement allows members to run their LLCs any way they wish to, but it can also be a trap for the unwary. LLC law is relatively new compared to corporation law, so the absence of an operating agreement can make it very difficult to resolve disputes among members.
LLCs are not without disadvantages. Since they are a separate legal entity from their members, members must take care to interact with LLCs at arm’s length, because the risk of piercing the veil exists with LLCs as much as it does with corporations. Fundraising for an LLC can be as difficult as it is for a sole proprietorship, especially in the early stages of an LLC’s business operations. Most lenders require LLC members to personally guarantee any loans the LLC may take out. Finally, LLCs are not the right form for taking a company public and selling stock. Fortunately, it is not difficult to convert an LLC into a corporation, so many start-up business begin as LLCs and eventually convert into corporations prior to their initial public offering (IPO).
A related entity to the LLC is the limited liability partnership, or LLP. Be careful not to confuse limited liability partnerships with limited partnerships. LLPs are just like LLCs but are designed for professionals who do business as partners. They allow the partnership to pass through income for tax purposes, but retain limited liability for all partners. LLPs are especially popular with doctors, architects, accountants, and lawyers. Most of the major accounting firms have now converted their corporate forms into LLPs.
Key Takeaways
The limited liability company (LLC) represents a new trend toward business organization. It allows owners, called members, to have limited liability just like corporations. Unlike corporations, however, LLCs can avoid double taxation by choosing to be taxed like a partnership or sole proprietorship. Unless a business wishes to become publicly traded on a stock exchange, the LLC is probably the most flexible, most affordable, and most compatible form for doing business today. The limited liability partnership (LLP) is similar to the LLC, except it is designed for professionals such as accountants or lawyers who do business as partners.
Exercise \(1\)
1. Most small businesses in the United States are still run as sole proprietorships. Why do you think these businesses have not converted to the LLC form?
2. Take a look at some of the brands and businesses you are most familiar with. How many of them do business as an LLC?
11.06: Concluding Thoughts
Most economists and public policy officials believe that the American economy is a key anchor to American society and values. Private enterprise and the profit motive allow innovation and entrepreneurship to flourish, leading to prosperity and peace. Underlying the strength of American business enterprises is a flexible and easy-to-manage legal system that allows business owners many options in choosing how to organize their operations. The sole proprietorship, which provides autonomy and ease in creation, is a dangerous form to do business because of unlimited liability. The general partnership allows business partners to do business together but similarly carries unlimited liability. The corporation provides limited liability for its owners but can be unwieldy and cumbersome to manage, with numerous technical requirements in creation and ongoing management. Limited liability entities, such as the limited liability company and limited liability partnership, provide the most flexible choice for doing business, multiple options for tax planning, and limited liability for owners. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/11%3A_Business_Organizations/11.05%3A_Limited_Liability_Entities.txt |
Learning Objectives
Great strides have been made in recent decades in eliminating the smears of discrimination from many facets of society such as voting rights, property ownership, and education. In the workplace, however, systematic discrimination continues to take its toll on many. This chapter explores workplace discrimination and examines the legal remedies available to those who believe they may be victims of discrimination. After reading this chapter, you should be able to answer the following questions:
• What are the various civil rights statutes that govern employment discrimination?
• What legal theories govern recovery discrimination lawsuits?
• How can businesses steer clear of liability for discrimination?
Figure 12.1.1 "An Abercrombie & Fitch Billboard in New York City" shows a billboard for Abercrombie & Fitch (or A&F, as it’s sometimes known), a clothing retailer. The Columbus, Ohio–based company generates nearly \$2 billion in sales annually by selling clothes in retail locations throughout North America, Europe, and Asia. As the billboard suggests, A&F’s marketing concept (which it calls “Casual Luxury”) is based heavily on portraying a certain image. How would you characterize that image? If you used adjectives like athletic, young, all-American, sexy, or attractive, you would be correctly identifying the company’s strategy. The strategy works as it has helped the company generate hundreds of millions in profits for its shareholders.
A&F relies on a message that boils down to convincing its young consumers that by wearing A&F clothing, they will also be young, athletic, and attractive. If consumers don’t believe that message, they will likely abandon the brand for another in this hugely competitive segment. To maintain the authenticity of that marketing message, A&F rigorously hires only models that fit a certain image in print and Web advertising. It extends this practice to store workers so that any time a customer interacts with A&F, that brand image is reinforced.
Is it illegal for A&F to hire only “attractive” people to work in its stores? The answer is no, just as it’s not illegal for Vogue magazine to hire only attractive models, or for a cosmetics company to hire only salespeople with clear skin. Under the employment-at-will doctrine, workers in the United States are free to work for whomever they want to (or not work at all), and employers are free to hire whomever they want to, and fire them at will. The vast majority of workers in the United States are covered by the at-will doctrine.
If you came in to work with green hair, you could be fired. If you came in to work with a visible body piercing or tattoo, you could be fired. If you get into an argument with your boss about whether baseball or basketball is a better sport, you could get fired. Companies can fire workers for smoking cigarettes, even at home. Companies can fire employees who say anything disparaging or negative about their bosses or the company, even on a private Facebook page. Narrow exceptions lie in the law, such as a company that enters into a written contract to hire a worker for a specified period of time. (Even then, many employment contracts specify at-will status for the worker.) If A&F wishes to engage in “looks-based” discrimination and refuses to hire workers who are overweight, ugly, or have pimples, then it is free to do so under U.S. law.
A problem arises, however, if “all-American casual luxury” starts to suspiciously become another way to say “all-white.” Many of A&F’s competitors, such as Gap, Aéropostale, American Eagle, and J. Crew, market their clothes on a similar “all-American” theme, but their models and store workers tend to look more diverse than those at A&F. If A&F is using its “beautiful people only” marketing to hide a more sinister plan to discriminate against racial minorities, then A&F is breaking the law.
Hyperlink: Abercrombie & Fitch Settles Discrimination Suit
http://www.npr.org/templates/story/story.php?storyId=4174147
In 2004 several former workers at A&F as well as job applicants denied employment filed a lawsuit against A&F for racial discrimination. The company paid \$50 million to settle the claim and hired a vice president for diversity.
Discrimination, then, is not always illegal. A&F can discriminate against ugly people and Vogue can discriminate against fat people. When is discrimination illegal? Under what circumstances can employers draw lines of classification within the general population? When does a person fall into a protected class that the law recognizes? What must a disappointed worker be able to prove to demonstrate illegal discrimination? In this chapter, we’ll explore these issues so that as future business professionals, you’ll have a sense of what you can and cannot do when it comes to hiring, managing, and firing employees.
Key Takeaways
Workers in the United States are hired and fired at will, meaning they can be hired or fired for any reason and at any time. Workers in a protected class may be protected if they can demonstrate that they were discriminated against because they were members of a protected class. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/12%3A_Employment_Discrimination/12.01%3A_Introduction.txt |
Learning Objectives
• Learn about the history of the Civil Rights Act.
• Understand who has to comply with the Civil Rights Act.
• Explore what employment practices are protected by the Civil Rights Act.
• Study the procedures involved with the Equal Employment Opportunity Commission.
Hyperlink: Kennedy Calls for Legislative Action on Civil Rights
www.jfklibrary.org/Historical+Resources/Archives/Reference+Desk/Speeches/JFK/003POF03CivilRights06111963.htm
On June 11, 1963, President John F. Kennedy delivered a speech to the nation describing the peaceful resolution to a tense standoff in Alabama after a federal court ordered the admission of two black students to the University of Alabama. He used the occasion to rail against continued discrimination against African Americans a century after the Civil War. “Next week I shall ask the Congress to act, to make a commitment it has not fully made in this century to the proposition that race has no place in American life or law…I am asking Congress to enact legislation giving all Americans the right to be served in facilities which are open to the public—hotels, restaurants, retail stores, and similar establishments. This seems to me to be an elementary right. Its denial is an arbitrary indignity that no American in 1963 should have to endure, but many do.” You can listen to the entire speech, and read the transcript of the speech, through the hyperlink.
In 1963 President Kennedy called for the passage of a sweeping civil rights bill in response to intransigent racial segregation. The bill was vehemently opposed by many in Congress, including avowed segregationists who saw the bill as an intrusion on states’ rights. Kennedy was assassinated before he could see the bill passed into law, but his successor President Johnson carried Kennedy’s wish forward through aggressive lobbying of Congress to pass the bill. At its core, the bill was designed to integrate African Americans into the mainstream of American society. Today, the Civil Rights Act of 1964 has broad significance for all racial minorities, religious organizations, and women.
The bill has several provisions, but the most important for businesses is known widely as “Title VII.” It applies to employers with more than fifteen employees. It eliminates job discrimination on the basis of:
• Race
• Color
• Religion
• Sex
• National origin
Any act of discrimination on any of these bases is illegal. These acts may be a refusal to hire, a discharge or termination, a temporary layoff or retrenchment, compensation, an opportunity for advancement, or any other term or condition of employment. For example, employers are not permitted to maintain all-white or all-black work crews even if they can demonstrate that doing so is good for business or morale. Title VII also prohibits acts of retaliation against anyone who complains about, or participates in, any employment discrimination complaint. Employers need to be very careful about this provision, because while the employer may be innocent of the first charge of discrimination, taking any subsequent action after an employee has complained can be a separate charge of discrimination. Once an employee has made a complaint of discrimination, it is very important that the employer not alter any condition of his or her employment until the complaint has been resolved.
The law does, however, allow discrimination on religion, sex, and national origin if there is a bona fide occupational qualification (BFOQ) reasonably necessary for normal business operations. For example, a Jewish synagogue may restrict hiring of rabbis to Jewish people only, and a Catholic church can restrict hiring priests to Catholic men only. A nursing home that caters exclusively to elderly women and is hiring personal assistants to help the patients with personal hygiene and dressing may restrict hiring to women only as a BFOQ. Victoria’s Secret can legally discriminate against men in finding models to advertise and market their products. A movie producer can legally discriminate between men and women when casting for certain roles such as a woman to play Bella and a man to play Edward in the popular Twilight series. Since BFOQ discrimination extends to national origin, a play producer casting for a role that specifically calls for a Filipino can legally restrict hiring to Filipinos only. A gentlemen’s club can hire women only as a BFOQ.
Managers should be very careful in applying BFOQ discrimination. It is an exception that is very much based on individual cases and subject to strict interpretation. The BFOQ must be directly related to an essential job function to be “bona fide.” Customer preference is not a basis for BFOQ. For example, a taxi company cannot refuse to hire women as taxi drivers even if the company claims that customers overwhelmingly prefer male drivers, and airlines cannot refuse to hire men even if surveys show customers prefer female flight attendants.
Hyperlink: Men and Hooters
www.time.com/time/magazine/article/0,9171,987169,00.html
The Hooters restaurant chain hires scantily clad women exclusively as servers, refusing to hire men for that role. Men are hired for other roles such as kitchen staff and hosts. In 1997 a group of men sued Hooters for sex discrimination. Without admitting any wrongdoing, Hooters settled the claim. Hooters says that its policy of hiring only women to act as servers is a bona fide occupational qualification. What do you think?
Hooters has also been accused by women’s groups of only hiring women who fit a certain profile that discriminates against anyone who management deems to be unattractive or overweight. Do you believe Hooters should be able to take these factors into account when making hiring decisions?
Note that race and color are not on the list of acceptable BFOQs. This means that in passing the law, Congress made a determination that there is no job in the United States where race or color is a bona fide occupational qualification. A country-and-western-themed restaurant, for example, may not hire only white people as wait staff.
Title VII creates only five protected classes. Various other federal and state laws, discussed in Chapter 12 "Employment Discrimination", Section 12.4 "Other Federal Antidiscrimination Laws", create other protected classes. Many other classes, such as weight, attractiveness, and height, are not on the list of protected classes. Contrary to popular belief, there is also no federal law that protects against discrimination on the basis of sexual orientation. National restaurant chain Cracker Barrel, for example, for many years maintained an open policy of not hiring homosexuals and dismissing any person who came out at work. It was only under pressure from shareholder activists that the company finally rescinded its discriminatory policy.
Hyperlink: The Employment Non-Discrimination Act
http://www.npr.org/templates/story/story.php?storyId=113719460
Since 2007 Congress has been debating the Employment Non-Discrimination Act (ENDA). The law would specifically prohibit employment discrimination on the basis of sexual orientation. The House passed the bill in 2007, but it died in the Senate. In 2009 new attempts were made at passing the law, but strident partisanship once again ended chances of passage, as this NPR story explains. Do you believe this law should be passed? If it passes, do you see an inconsistency with the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage?
Note too that Title VII does not prohibit all discrimination. Employers are free to consider factors such as experience, business acumen, personality characteristics, and even seniority, as long as those factors are related to the job in question. Title VII requires employers to treat employees equally, but not identically.
Title VII is a federal law, but it does not give victims of discrimination the immediate right to file a federal lawsuit. Instead, Title VII created a federal agency, the Equal Employment Opportunity Commission (EEOC) to enforce civil rights in the workplace. The EEOC publishes guidelines and interpretations for the private sector to assist businesses in deciding what employment practices are lawful or unlawful. The EEOC also investigates complaints filed by workers who believe they are victims of unlawful discrimination. If the EEOC believes that unlawful discrimination has taken place, the EEOC can file charges against the employer. Even if the employee has signed a predispute arbitration clause with the employer agreeing to send employment disputes to arbitration, the Supreme Court has ruled that the predispute arbitration clause does not extend to the EEOC, which can still file a lawsuit on the employee’s behalf in federal court.EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).
Employees must file Title VII charges with the EEOC first before going to court. If the EEOC investigates and decides not to pursue the case any further, the EEOC can issue a “right to sue” letter. With that letter, the employee can then file a case in federal court within 90 days of the date of the letter. Any EEOC complaint must be filed within 180 days of the alleged discriminatory act taking place. This deadline is generally extended to 300 days if there is a state agency that enforces a state law prohibiting discrimination on the same basis. If employees wait beyond 180 or 300 days, their claims will be dismissed. The question of when the clock begins was the subject of much debate recently when a female manager at Goodyear, Lilly Ledbetter (Figure 12.2.2 "Lilly Ledbetter"), discovered she had been paid unequally compared to males for many years. She filed a Title VII lawsuit in federal court and won several million dollars in damages. At the Supreme Court, however, a narrow 5–4 majority opinion authored by Justice Alito held that she had to file her claim within 180 days of any decision to pay her unequally, which had happened many years ago. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). She, therefore, lost her case and her damages award. In response, Congress passed the Lily Ledbetter Fair Pay Act of 2009, which gives victims the right to file a complaint within 180 days of their last discriminatory paycheck.
The EEOC has the authority to award several remedies to victims of discrimination. These include the award of back pay for any lost wages, the issuance of an injunction to stop the employer from making any continuing acts or policies of discrimination, ordering a terminated or demoted employee reinstated to his or her prior position, and the award of compensatory damages for out-of-pocket costs resulting from the discrimination as well as emotional harm. Attorneys’ fees may also be recoverable. In cases of severe or reckless discrimination, punitive damages are also available. Punitive damages are capped by amendments to Title VII passed in 1991. These caps start at \$50,000 for employers with less than one hundred employees and rise to \$300,000 for employers with more than five hundred employees.
Anyone who files a Title VII claim in federal court must prove his or her claim using one of two possible theories. The first theory, known as disparate treatment, alleges that the defendant employer acted intentionally to discriminate against the victim because of the victim’s membership in a protected class. Winning a disparate treatment case is very hard because it essentially requires proof that the defendant acted intentionally, such as a statement by the defendant that it is not hiring someone because of that person’s race, an e-mail to the same effect, or some other sort of “smoking gun” evidence. If a defendant wants to discriminate against someone illegally in the workplace, it is very unusual for it to say so explicitly since under the at-will doctrine, it is easy for an employer to find a lawful reason to discriminate.
Under Supreme Court precedent, a plaintiff wishing to demonstrate disparate treatment has to first make out a prima facie case of discrimination, which involves demonstrating that he or she is a member of a protected class of workers.McDonnell Douglas v. Green, 411 U.S. 792 (1973). He or she applied for a job that he or she is qualified for, and the employer chose someone else outside of the plaintiff’s class. Once that demonstration has been made, the employer can rebut the presumption of discrimination by arguing that a legitimate, nondiscriminatory reason existed for taking the adverse action against the plaintiff. If the employer can state such a legitimate reason, then the burden of proof shifts back to the employee again, who must then prove by a preponderance of evidence that the employer’s explanation is insufficient and only a pretext for discrimination. This last step is very difficult for most victims of intentional discrimination.
If a victim is unable to find proof of disparate treatment, he or she may instead use a theory called disparate impact, where the discrimination is unintentional. Most Title VII cases fall into this category because it is so rare to find proof of the intentional discrimination required in disparate treatment cases. In a disparate impact case, the victim alleges that the defendant has adopted some form of race-neutral policy or employment practice that, when applied, has a disproportionate impact on certain protected classes. If a victim successfully demonstrates a disparate impact, then the employer must articulate a nondiscriminatory business necessity for the policy or practice. The Supreme Court first articulated this theory in 1971 in a case involving a power company that implemented an IQ test and high school diploma requirement for any position outside its labor department, resulting in very few African Americans working at the power company other than in manual labor. The Court held that the Civil Rights Act “proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.”Griggs v. Duke Power Co., 401 U.S. 424 (1971). In that case, the Court found that the power company could not prove a business necessity for having the IQ tests or high school diploma requirement, so those practices were ruled illegal.
Business policies that raise suspicions for disparate impact include educational qualifications, written tests, intelligence or aptitude tests, height and weight requirements, credit checks, nepotism in hiring, and subjective procedures such as interviews. Businesses that have these sorts of policies need to be very careful that the policies are directly related to and necessary for the job function under consideration. In one recent case, the city of Chicago received more than twenty-six thousand applications for firefighters in 1995 for only several hundred positions. The city required all the applicants to take a test, and it used that test to categorize applicants as failing, qualified, or well-qualified. Faced with so many applicants, the city decided to hire only candidates who received a well-qualified score. African Americans made up 45 percent of the qualified group, but only 11.5 percent of the well-qualified group, so the decision had an adverse and disparate impact on a protected class. More than ten years later and after an appeal all the way to the Supreme Court on the question of timeliness of their lawsuit, the plaintiffs are still waiting for a trial on whether the city acted illegally. Lewis v. Chicago, 560 U.S. ___ (2010), http://www.law.cornell.edu/supct/html/08-974.ZS.html (accessed September 27, 2010).
Proving a disparate impact case is not easy for victims of discrimination. It is not enough for the employee to use statistics alone to point out that a job policy or practice has a disparate impact on the victim’s protected class. In addition, the 1991 amendments to the Civil Rights Act prohibited the use of race norming in employment testing.
Key Takeaways
The 1964 Civil Rights Act is a major piece of legislation that affects virtually all employers in the United States. Originally created to ensure the integration of African Americans into mainstream society, the law prohibits discrimination on the basis of race, color, religion, sex, and national origin. Some forms of discrimination on the basis of religion, sex, or national origin are permitted if they are bona fide occupational qualifications. Federal law does not prohibit discrimination on the basis of sexual orientation. The Equal Employment Opportunity Commission investigates charges of illegal workplace discrimination. These charges must be filed by workers within 180 days of the alleged discriminatory act taking place. If a worker believes intentional discrimination has taken place, he or she may pursue a theory of disparate treatment in his or her lawsuit. If the discrimination is unintentional, the worker may pursue a theory of disparate impact. Employment practices that have a disparate impact on members of a protected class are permissible, however, if they are job-related and qualify as a business necessity.
Exercise \(1\)
1. More than four decades after the passage of the 1964 Civil Rights Act, many libertarians and conservatives continue to believe that the law is a violation of states’ rights. Do you agree? Why or why not?
2. In listening to President Kennedy’s speech, do you believe that the promise held by the Civil Rights Act has been met? Why or why not?
3. Businesses sometimes discriminate against their customers on the basis of sex. A bar may charge females a reduced or waived cover charge in a “Ladies Night” promotion, for example, to increase the female ratio in their audience. Hair salons routinely charge more for services to women, and even dry cleaners charge higher prices for cleaning women’s clothes. Do you believe these forms of discrimination should be illegal? Why or why not?
4. Research demonstrates that taller, more athletic, and more attractive people earn more in the workplace than shorter, less fit, or less attractive people. Do you believe this is unfair, and if so, do you believe the law should be amended to protect these classes?
5. Race and color can never be BFOQs. Does that mean that an African American actor could play Abraham Lincoln in a movie reenactment of Lincoln’s life? Why or why not? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/12%3A_Employment_Discrimination/12.02%3A_Overview_of_Title_VII_of_the_Civil_Rights_Act_of_1964.txt |
Learning Objectives
• Explore what the protections of the Civil Rights Act mean.
• Understand implications of the Civil Rights Act for employers and employment practices.
• Examine how businesses can protect themselves against claim of discrimination.
Many times in the business world, it pays to be exceptional and different. Standing out from the crowd allows an employee to be noticed for exceptional performance and can lead to faster and greater advancement. In some other respects, however, standing out for being a racial or ethnic minority, or for being a woman, can be incredibly uncomfortable for employees. Learning to celebrate differences appropriately remains a challenge for many human resource professionals.
The main purpose of Title VII was to integrate African Americans into the mainstream of society, so it’s no surprise that charges of race-based discrimination continue to generate the highest number of complaints to the Equal Employment Opportunity Commission (EEOC). In 2009 the EEOC received nearly thirty-four thousand complaints of race-based discrimination in the workplace, representing 36 percent of the total number of complaints filed.U.S. Equal Employment Opportunity Commission, “Charge Statistics FY 1997 through FY 2009,” http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (accessed September 27, 2010). Intentional discrimination against racial minorities is illegal, but as discussed earlier in this section, proving intentional discrimination is exceedingly difficult. That means the EEOC pays close attention to disparate impact cases in this area.
Hyperlink: Diversity Day at The Office
http://www.nbc.com/The_Office/video/diversity-day/116137
In NBC’s hit sitcom The Office, Michael Scott is the hapless and often clueless manager of a paper company’s branch office in Pennsylvania. In this clip, he decides to celebrate Diversity Day by having the employees engage in an exercise. He has written certain ethnicities and nationalities on index cards and taped them to employees’ foreheads. The employee does not know what his or her card says and is supposed to figure it out through interactions with other employees. The results are a less-than-stellar breakthrough in an understanding of diversity. Does your school or university celebrate in diversity celebrations? Do you believe these celebrations are helpful or unhelpful in the workplace?
For example, an employer policy to examine the credit background of employees might be suspect. Statistically, African Americans have poorer credit than white Americans do, so this policy will necessarily reduce the number of African Americans who can qualify for the position. While a credit check may be a business necessity for a job requiring a high level of trustworthiness, it is hardly necessary for all positions. Similarly, sickle-cell anemia is a blood disease that primarily affects African Americans. An employer policy that excludes persons with sickle-cell anemia must be job-related and a business necessity to be legal. A “no-beard” employment policy may also be problematic for African Americans. Many African American men suffer from a medical skin condition that causes severe and painful bumps if they shave too closely, requiring them to keep a beard. A no-beard policy will therefore have to be justified by business necessity. For example, a firefighter may be required to be beard-free if a beard interferes with the proper functioning of an oxygen mask, a critical piece of equipment when fighting fires. White persons can be victims of race or color discrimination as well. A tanning salon cannot refuse to hire a very light-skinned person of Irish descent, for example, if its refusal is based on color appearance of the job candidate.
To correct past mistakes in treatment of women and minorities, many companies go beyond being equal opportunity employers by adopting affirmative action programs. Companies are not required to undertake affirmative action programs, but many do. In some instances, they do so to qualify as a federal contractor or subcontractor. Under Executive Order 11246, most federal contractors or subcontractors must develop an annual affirmative action plan and take “affirmative steps” to recruit, hire, and train females and minorities in the workforce. Even companies that do not seek to sell to the federal government may voluntarily undertake affirmative action programs, as long as those programs are meant to correct an imbalance in the workforce, are temporary, and do not unnecessarily infringe on the rights of nonbeneficiaries.
Affirmative action plans can be tricky to administer because white Americans can also be the victims of race discrimination or so-called reverse discrimination. The provisions of Title VII are meant to protect all Americans from race discrimination. One of the earliest cases of reverse discrimination took place in 1981, when a white air traffic controller successfully sued the Federal Aviation Administration (FAA), claiming the FAA had hired women and racial minorities over him. In one recent case, the fire department in the city of New Haven conducted a management test to decide which firefighters to promote. When no black firefighters passed the test, the city decided to invalidate the test. Nineteen firefighters who did pass the test (all white or Hispanic) filed suit, alleging the city’s actions violated Title VII. The Supreme Court found in favor of the firefighters, holding that the city’s fear of a discrimination lawsuit from minorities if it went forward with the test was not enough justification to discriminate against the white firefighters.Ricci v. DeStefano, 557 U.S. ___ (2009), http://www.law.cornell.edu/supct/html/07-1428.ZS.html (accessed October 2, 2010).
A related form of discrimination is discrimination on the basis of national origin, which is also prohibited by Title VII. This involves treating workers unfavorably because of where they are from (specific country or region) or ethnicity. It is illegal to discriminate against a worker because of his or her foreign accent unless it seriously interferes with work performance. Workplace “English-only” rules are also illegal unless they are required for the job being performed. While English-only rules might be a business necessity for police officers, they would not be for late-night office cleaners.
Hyperlink: Sikhs Regain Right to Wear Turbans in U.S. Army
http://www.npr.org/templates/story/story.php?storyId=125142736
Members of one of the world’s oldest religions, Sikhism, do not cut their hair and wear their hair in a turban. Since 1984 this has been prohibited by the U.S. Army, which has standards for both hair and facial hair for recruits. In 2010 the army lifted this prohibition, resulting in the first Sikh Army officer, Captain Tejdeep Singh Rattan (Figure 12.3.1 "Captain Tejdeep Singh Rattan, the First Sikh Army Officer"), in more than twenty-five years, as this NPR story explains.
Title VII’s prohibition on religious discrimination has raised some interesting workplace issues. The law makes it illegal to treat an employee unfavorably because of his or her religious beliefs. Furthermore, employees cannot be required to participate in any religious activity as a condition of employment. It extends protection not just to major religions such as Buddhism, Christianity, Hinduism, Islam, and Judaism but also to anyone who has sincerely held religious or moral beliefs.
Additionally, employers must reasonably accommodate an employee’s religious beliefs or practices as long as it does not cause an undue hardship on the employer’s operation of its business. Typically, this would involve being flexible in schedule changes or leaves. A Muslim worker who asked for a few short breaks a day to pray, for example, might be reasonable for an administrative assistant but not for a police officer or air traffic controller. Issues of dress and appearance are often grounds for charges of religious discrimination. For example, if a Muslim woman wished to wear a hijab, or traditional headscarf, then she should be permitted to do so unless it places an undue hardship on operations. In 2010, UPS agreed to settle a case with the EEOC, paying \$46,000 in damages for firing a driver who refused to cut his hair or shave his beard, which the driver believes would violate tenets of his Rastafarian religion.U.S. Equal Employment Opportunity Commission, “UPS Freight to Pay \$46,000 to Settle EEOC Religious Discrimination Lawsuit,” February, 17, 2010, http://eeoc.gov/eeoc/newsroom/release/2-17-10.cfm (accessed September 27, 2010).
A very interesting recent development of workplace discrimination arises when a worker refuses to carry out his or her job duties because of a sincerely held moral belief that doing so would promote immoral activity. For example, after the Food and Drug Administration approved sale of the so-called "morning after" pill to prevent unwanted pregnancy, some pharmacists refused to fill prescriptions for the drug, claiming it was against their religious beliefs to do so. Another example arose in Minnesota in 2006 when a bus driver refused to drive a bus carrying an advertisement for a gay-themed newspaper. Courts and legislatures continue to struggle with where to draw the line between respecting employees’ religious beliefs and the rights of employers to insist their workers perform essential job functions.
Finally, Title VII prohibits discrimination on the basis of sex. Interestingly, the inclusion of sex as a protected class in Title VII was a legislative maneuver designed to kill the bill while it was being debated in Congress. Howard Smith, a Democrat from Virginia, strongly opposed the 1964 Civil Rights Act and thought that by adding the word “sex” to the list of protected classes, the bill would become so poisonous that it would fail passage. In fact, the bill quickly passed, and it led former Chief Justice Rehnquist to complain that courts were, therefore “left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on sex.” Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
The prohibition on sex discrimination means that employers cannot categorize certain jobs as single-sex only unless a bona fide occupational qualification (BFOQ) applies. Customer preferences or market realities are not the basis for BFOQ. For example, a job that requires heavy lifting cannot be categorized as male-only since a woman may qualify after passing a physical test. As society has changed, much progress has been made in this area of equal employment opportunity. Airlines, for example, used to routinely hire predominantly single young women as flight attendants (Figure 12.3.2 "An Advertisement for PSA Airlines"). Male cabin crew could marry, but women could not. Those distinctions have now been erased, partially because of Title VII, and partially because of societal attitudes.
The prohibition against sex discrimination also includes making stereotypical assumptions about women simply because they might be the primary caregiver to children at home. If there are two job applicants, for example, and both have young children at home, it would be illegal to give preference to the male candidate over the female candidate. Once a female employee has children, it would be illegal to assume that she is less committed to her job, or would like to work fewer hours. It’s important to note that these protections extend to men as well. If an employer voluntarily provides time off to new mothers, for example, it must extend identical benefits to new fathers.
Discrimination on the basis of sex can also take the form of workplace sexual harassment. Contrary to popular belief, there isn’t an actual statute that makes sexual harassment illegal. Instead, sexual harassment is the product of judicial interpretation of what it means to discriminate on the basis of sex. Courts have generally recognized two forms of sexual harassment. The first, known as quid pro quo, involves asking for sexual favors in return for job opportunities or advancement. Courts reason that if a male worker asks a female worker for sex in return for favorable treatment, it is because that worker is female, and therefore a Title VII violation has occurred. If a supervisor fires a subordinate for breaking up with him or her, then quid pro quo harassment has taken place.
Another type of sexual harassment is known as the hostile work environment. First recognized by the Supreme Court in 1986, a hostile work environment is one where hostile conditions in the workplace are severe and pervasive, unwelcome, and based on the victim’s gender. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Courts are careful not to impose manners on workplaces, so an offhand remark or dirty joke is unlikely to be sexual harassment. To be considered sexual harassment, the harassment must be so severe or pervasive that it alters the conditions of the victim’s employment. In one recent case, the EEOC collected \$471,000 for thirteen female telemarketers from a firm providing basement waterproofing services. The harassment by male managers and coworkers at the firm included repeated requests for sex, frequent groping, sexual jokes, and constant comments about the bodies of women employees.U.S. Equal Employment Opportunity Commission, “EEOC Collects \$471,000 Jury Award after Winning Appeal from Waterproofing Company in Sex Harassment Case,” May 5, 2010, http://www.eeoc.gov/eeoc/newsroom/release/5-5-10.cfm (accessed September 27, 2010). Similar cases involve workplace atmospheres where women are heckled with sexual comments, propositioned for sex, made to listen to crude sexual comments or comments about their bodies, subject to pornography in the workplace, or invited to after-work outings to strip clubs.
Under traditional tort doctrines, employers can be held liable for an employee’s sexual harassment of another person. The Supreme Court has held that employers can overcome this liability by demonstrating that they conduct workplace training about sexual harassment and have implemented policies, including methods for employees to report suspected cases of harassment, and that they take prompt action against any employee found to be engaging in sexual harassment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The Supreme Court has also held that men can be the victims of sexual harassment and that same-sex sexual harassment is also illegal under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). The hostile work environment theory is not limited to discrimination on the basis of sex; a hostile work environment can also be motivated by discrimination on the basis of race, color, national origin, religion, age, and disability.
Key Takeaways
Racial discrimination charges are the most common form of complaint filed with the EEOC. Discrimination on the basis of race or color prohibits employers from adopting any policy or practice that has a disparate impact on persons because of their race or color. To be legal, job policies or practices that have a disparate impact on protected classes must be related to the job function and qualify as a business necessity. Discrimination on the basis of national origin (ethnicity, accent, or language) is illegal. Discrimination on the basis of religion is also illegal. Employers must reasonably accommodate an employee’s religious beliefs unless doing so would pose an undue hardship on the employer’s operation of business. Discriminating against someone because of his or her sex is illegal. It is also illegal to treat primary caregivers differently because they are male or female. Finally, workplace harassment is illegal if it is severe and pervasive and alters the conditions of an employee’s employment.
Exercise \(1\)
1. If a Jewish or Muslim worker asked for halal or kosher food in the employee cafeteria, should an employer accommodate this request? Why or why not? What factors do you think the employer should consider before making a decision?
2. In many countries it is common for résumés to contain photos of the job applicants. It is also common to classify jobs by sex (i.e., a job posting for a female secretary or male forklift driver). What do you believe the United States has gained or lost by moving away from this system of job applicant screening?
3. Do you believe that the school bus driver in Minnesota should be permitted to refuse driving a bus if it carries an advertisement that the driver believes promotes immoral lifestyles? Why or why not? Should a vegetarian driver be permitted to refuse to drive a bus with an advertisement for hamburgers? Should a Post Office delivery person be permitted to refuse to deliver copies of Playboy magazine on the same grounds?
4. Can you think of any jobs where speaking English without an accent may be very important or essential? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/12%3A_Employment_Discrimination/12.03%3A_Enforcement_of_Title_VII.txt |
Learning Objectives
• Explore the 1866 Civil Rights Act.
• Learn about the Equal Pay Act.
• Understand the Age Discrimination in Employment Act.
• Study the Americans with Disabilities Act.
While the 1964 Civil Rights Act is the most important federal civil rights law, it isn’t the only basis for employment discrimination. Protections also exist to protect women against unequal pay, pregnant women, workers older than forty, and people with disabilities. In this section, we’ll examine these other statutes.
The first statute is the 1866 Civil Rights Act. It was passed after the Civil War to guarantee freed slaves the rights of citizenship, and it is still in force today. It prohibits discrimination on the basis of race, including private discrimination. The 1866 Civil Rights Act provides victims of race discrimination several advantages over Title VII. Unlike Title VII, victims do not need to file a complaint with the Equal Employment Opportunity Commission (EEOC) first—they can go straight to federal court to file a complaint. In addition, the strict filing deadlines under Title VII do not apply. Finally, the statutory limits on punitive damages under Title VII do not apply, so higher damages are possible under the 1866 Civil Rights Act. Unlike Title VII, however, the 1866 Civil Rights Act only prohibits racial discrimination. In most race discrimination cases, plaintiffs file both Title VII claims and claims under the 1866 Civil Rights Act. These are commonly known as Section 1983 claims, named after the section of the U.S. statute that allows victims of race discrimination to file their complaints in federal court.
The Equal Pay Act of 1963 seeks to eliminate the wage gap between women and men. In 1970 women earned roughly sixty-two cents for every dollar men earned. In 2004 that number had climbed to eighty cents. In 2008 women still earn less than their male counterparts in all sectors of the economy, as the chart from the Bureau of Labor Statistics demonstrates (Figure 12.4.1 "Median Weekly Earnings of Women and Men in Management, Professional, and Related Occupational Groups, 2008"). The Equal Pay Act demands that employers provide equal pay for equal work, and it applies to all employers. All forms of compensation are covered by the act, including benefits such as vacation and compensation such as salary and bonus. Victims do not need to file a complaint with the EEOC under the Equal Pay Act, but may instead go straight to federal court, as long as they do so within two years of the alleged unlawful employment practice. Victims typically also pursue Title VII claims at the same time they pursue Equal Pay Act claims.
The Equal Pay Act is very difficult to enforce. Since demanding identical pay is virtually impossible due to differences in jobs and job performance, courts have essentially interpreted the law as requiring substantially equal pay for substantially equal work. Courts are extremely reluctant to get into the business of telling employers what they should pay their workers. In 2009 the EEOC received fewer than one thousand complaints about unequal pay nationwide, or less than 1 percent of the charges filed.U.S. Equal Employment Opportunity Commission, “Charge Statistics FY 1997 through FY 2009,” http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (accessed September 27, 2010).
Hyperlink: Despite New Law, Gender Salary Gap Persists
http://www.npr.org/templates/story/story.php?storyId=125998232
In some part, women make less money than men because they voluntarily leave the workforce to raise children, or because women are directed to occupations with traditionally less pay. Even if these factors are eliminated, however, there is still a pay gap between women and men. This gap grows over time, leaving women with hundreds of thousands less at the end of a career when compared with a male’s comparable career. Now, Congress is considering new legislation to address the problem in the Paycheck Fairness Act, as this NPR story explains.
The Pregnancy Discrimination Act of 1978 amended Title VII to make it illegal to discriminate on the basis of pregnancy, childbirth, or related medical conditions. This means employers cannot refuse to hire a woman because she is pregnant or is considering becoming pregnant, or because of prejudices held by coworkers or customers about pregnant women. A female worker who becomes pregnant is entitled to work as long as she can perform her tasks, and her job must be held open for her while she is on maternity leave. Furthermore, pregnancy-related benefits cannot be limited only to married employees.
The Age Discrimination in Employment Act of 1967 (ADEA) makes it illegal to discriminate against workers over the age of forty. It does not protect younger workers, who are of course subject to a form of discrimination every time they are told an employer is looking for someone with more experience. The ADEA applies to any employer with over twenty workers, including state governments. Partnerships such as law firms and accounting firms are also covered under the ADEA. In 2007 a major law firm, Sidley Austin, agreed to pay \$27.5 million to former partners the firm had terminated because of their age, resulting in a median payout of over \$875,000 per terminated partner.U.S. Equal Employment Opportunity Commission, “\$27.5 Million Consent Decree Resolves EEOC Age Bias Suit against Sidley Austin,” October 5, 2007, http://www.eeoc.gov/eeoc/newsroom/release/10-5-07.cfm (accessed September 27, 2010). The ADEA prohibits employers from treating any covered person unfavorably in any term or condition of employment, including the hiring decision. It is illegal, for example, to hire an inexperienced twenty-five-year-old for a job when a fifty-year-old is better qualified and willing to work for the same conditions. An employer may, however, favor an older worker over a younger worker even if the younger worker is over forty years of age. Mandatory retirement age is illegal under the ADEA, except for very high-level executives over the age of sixty-five who are entitled to a pension.
Employers should be very careful about asking for a job applicant’s date of birth during the application process, as this might be a sign of possible discriminatory intent. Employers may discriminate against older workers if there is a bona fide occupational qualification (BFOQ), such as a production company casting for a young actor to play a young character, or airlines setting a mandatory retirement age for pilots.
Of course, older workers can still be dismissed for good cause, such as poor job performance or employee misconduct. Companies may also administer a layoff plan or early retirement plan that is evenly applied across all workers, and can offer early retirement incentives to induce workers to retire. Typically when companies ask a worker to retire early or take an incentive to leave the company, the worker is asked to sign an ADEA waiver, giving up any claims the worker may have under the ADEA. These waivers are fully enforceable under the ADEA as long as they are “knowing and voluntary,” in writing, and provide the worker with at least twenty-one days to consider the waiver and seven days to revoke it after signing it.
Although it was passed around the same time as Title VII, for decades courts held that only disparate treatment cases under the ADEA were viable. That meant plaintiffs had to find proof of intentional discrimination to recover, so there were relatively few successful age discrimination cases. To make matters even harder for older workers, in 2009 the Supreme Court held that older workers suing under the ADEA had to prove that their age was a “but-for” reason for their termination, or the sole cause for termination. Gross v. FBL Financial Services, 557 U.S. ___ (2009), http://www.law.cornell.edu/supct/html/08-441.ZS.html (accessed October 2, 2010). This makes age discrimination much harder to prove than discrimination because of sex or race, where illegal discrimination only has to be one of several factors that motivated the employer. In fact, the 2009 decision made it all but impossible for older workers to prove intentional discrimination, and congressional efforts to overturn the decision in the form of the Protecting Older Workers Against Discrimination Act are pending.
In 2005 the Supreme Court held that the disparate impact theory can apply to age discrimination cases. Smith v. City of Jackson, 544 U.S. 228 (2005). For example, an employer cannot require office workers to undertake strenuous physical tests if those tests are not related to the job being performed and would have a disparate impact on older workers. Rather than open the floodgates to ADEA litigation, however, the ensuing years saw relatively little increase in ADEA-related litigation. One reason may be that the Court emphasized that the ADEA contains a unique defense for employers not present in Title VII: employers are allowed to take unfavorable action against older workers for “reasonable factors other than age” (RFOA). In the 2005 case, a city had decided to give larger pay increases to younger workers compared to older workers, for the stated reason that the city wanted to make pay for younger workers competitive with the market. The Supreme Court found this explanation reasonable. In 2010 the EEOC published a proposed rule to clarify the meaning of “reasonable factors.” The proposed rule would allow neutral policies that negatively affect older workers only if the policy is “objectively reasonable when viewed from the perspective of a reasonable employer under like circumstances.”U.S. Equal Employment Opportunity Commission, “EEOC Solicits Comments on Proposed Rule concerning ‘Reasonable Factors other than Age’ under the ADEA,” February 18, 2010, http://www.eeoc.gov/eeoc/newsroom/release/2-18-10.cfm (accessed September 27, 2010). If the proposed rule is adopted, it would make it much more difficult for employers to rely on “reasonable factors” as a defense to an age discrimination claim.
After the major laws of the 1960s were passed, Congress did very little to protect civil rights in the workplace for many years. This changed in 1990, when Congress passed a major new piece of legislation known as the Americans with Disabilities Act of 1990 (ADA), signed into law by President George H. W. Bush. With passage of the ADA, Congress sought to expand the promise of equal opportunity in the workplace to cover persons with disabilities. Unfortunately, the ADA was less than clear in many critical aspects when it was written, leaving courts to interpret what Congress may have meant with specific ADA language. An increasingly conservative judiciary, including the Supreme Court, began interpreting the ADA fairly narrowly, making it harder for people with disabilities to win their court cases. Congress responded with the Americans with Disabilities Amendments Act of 2008 (ADAA), signed into law by President George W. Bush, which specifically overturned several key Supreme Court decisions to broaden the scope of the ADA.
The ADA is broken down into several titles. Title III, for example, deals with requirements for public accommodations such as wheelchair ramps, elevators, and accessible restrooms for new facilities. Title II deals with the ADA’s applicability to state and local governments. For employees, the most important provisions are located in Title I, which makes it illegal for employers with fifteen or more employees to discriminate against “qualified individuals with disabilities.”
It is a common misconception that the ADA requires employers to hire disabled workers over able-bodied workers. This is simply not true because the ADA only applies to the qualified disabled. To be qualified, the individual must meet the legitimate skill, experience, education, or other requirements for the position he or she is seeking and be able to perform the “essential functions” of the job without reasonable accommodation. In other words, the first step an employer must take is to define what the essential functions of the job are, and then see if a disabled individual who has applied for the job meets the requirements for the job and can perform those essential functions. Obviously, someone who is legally blind will not be permitted to be a bus driver or airline pilot under this test. Similarly, a paraplegic will not be qualified to work as a forklift operator since that person will be unable to perform the essential functions of that job without reasonable accommodation. On the other hand, the “essential functions” test means that employers must be very careful in denying employment to someone who is disabled. If the reason for denying employment is the disabled person’s inability to perform some incidental task (rather than an essential function), then that is illegal discrimination. The ADA also permits employers to exclude any disabled individual who poses a direct threat to the health or safety to the individual or of others, if the risk of substantial harm cannot be reduced below the level of “direct threat” through reasonable accommodation.
The ADA makes it illegal for an employer to require a job applicant take a medical exam before an employment offer is made. However, after a job offer has been made, applicants can be asked to take medical and drug exams. Tests for illegal use of drugs, any time during employment, are permitted under the ADA.
One of the most vexing questions faced by employers is in defining who is disabled. The ADA states that an individual is disabled if he or she has a “physical or mental impairment that substantially limits one or more major life activities,” has a record of such impairment, or is regarded as having such an impairment. Major life activities include seeing, hearing, speaking, walking, running, breathing, learning, and caring for oneself. For example, consider a person being actively treated for cancer. During the treatment, many major life activities may be substantially limited, so the person is disabled. However, if a major life activity is not limited but the person loses his or her hair as a result of chemotherapy, he or she may be “regarded” as having an impairment, which makes him or her disabled under the ADA. An employer who purposefully refuses to hire a qualified job applicant with no hair because the employer believes the applicant has cancer (regardless of whether the cancer is active or in remission) is, therefore, violating the ADA. Finally, if the cancer patient recovers fully and has no physical sign of cancer, that patient is still considered protected by the ADA because he has a “record” of a qualifying disability.
After the ADA’s passage in 1990, the Supreme Court began confronting the meaning of these terms in a series of cases. In one case, the Court held that anyone with a disability that could be mitigated or corrected was no longer disabled under the ADA. Sutton v. United Airlines, 527 U.S. 471 (1999). This decision led to uproar and controversy. By narrowing the definition of who was disabled, the Court made it very hard for disabled persons to prove discrimination. A diabetic who can control the disease with insulin, for example, was not disabled under this definition. Therefore, an employer who fired a diabetic for taking breaks to inject insulin was not violating the ADA. The ADAA specifically overturns this case, and now employers are prohibited from considering mitigating measures such as medication or technology when determining whether or not a major life activity is substantially limited. The ADAA does carve out one exception: anyone with poor vision that is correctable with glasses or contact lenses is not disabled under the ADA.
In another case limiting the definition of who is disabled, the Court held that a physical or mental impairment must have a substantial effect on an employee’s daily life, not just that person’s ability to perform his or her specific job. Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002). This case has also been overruled by the ADAA, which directs the EEOC to issue new guidelines that are much more liberal in interpreting the meaning of what it means to substantially limit a major life activity.
Under the new ADAA and EEOC guidelines, a list of impairments that substantially limit a major life activity that will “consistently” result in a disability determination might include blindness, deafness, intellectual disability, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, posttraumatic stress disorder, obsessive compulsive disorder, and schizophrenia.U.S. Equal Employment Opportunity Commission, “Summary of Key Provisions: EEOC’s Notice of Proposed Rulemaking (NPRM) to Implement the ADA Amendments Act of 2008 (ADAA),” http://www.eeoc.gov/laws/regulations/adaaa-summary.cfm (accessed September 27, 2010). Other impairments that may require more analysis to determine if they substantially limit an individual’s major life activities include asthma, high blood pressure, back and leg impairments, learning disabilities, panic or anxiety disorders, some forms of depression, carpal tunnel syndrome, and hyperthyroidism. The impairment cannot be temporary or nonchronic (such as the common cold, seasonal influenza, sprained joint, minor gastrointestinal disorders, seasonal allergies, broken bones, and appendicitis). However, an impairment that is episodic such as epilepsy or cancer would qualify if it limits a major life activity while it is active. Pregnant women are generally not considered disabled, although of course other civil rights statutes, such as Title VII, may protect them. Note that while current illegal drug users are not considered disabled, alcoholics may be considered disabled if the disease substantially limits a major life activity.
Although an employer is not required to hire the unqualified disabled, if it does hire a disabled individual it must provide reasonable accommodation to any disabled worker who asks for it. Reasonable accommodation is any change or adjustment to the work environment that would allow the disabled worker to perform the essential functions of the job or to allow the disabled worker to enjoy the benefits and privileges of employment equal to employees without disabilities. Reasonable accommodation might include allowing the worker to work part-time or modified work schedules; reassigning the worker to a vacant position; purchasing special equipment or software; providing readers or interpreters; or adjusting or modifying exams, training materials, and policies. Employers do not have to undertake reasonable accommodation if doing so would cause them undue hardship, meaning it would require significant difficulty or expense, or significantly alter the nature or operation of the business. Among factors to be considered in whether an accommodation would pose an undue hardship are the cost of the accommodation as well as the employer’s size and financial resources.
Key Takeaways
The 1866 Civil Rights Act prevents private discrimination on the basis of race, and provides a quick route for victims of racial discrimination to federal court without following procedural gateways established by the EEOC. The Equal Pay Act requires employers to pay men and women substantially equal pay for substantially equal work, but it is very difficult to enforce. Title VII also protects pregnant women from workplace discrimination. The Age Discrimination in Employment Act prohibits discrimination against workers over the age of forty. The BFOQ defense is available for age discrimination claims, as well as taking adverse action for a reasonable factor other than age. The Americans with Disabilities Act prohibits employment discrimination against the qualified disabled and prohibits preemployment medical testing. To be considered disabled, an individual must demonstrate a mental or physical impairment that substantially limits a major life activity. Disabled persons are entitled to reasonable accommodation in the workplace, as long as reasonable accommodation does not place any undue hardship on the employer.
Exercise \(1\)
1. The Equal Pay Act of 1963 is decades old, but women have still not closed the gap with men when it comes to pay. Why do you think this is? Do you believe Congress can play a role in closing this gap?
2. The number of age-related claims filed with the EEOC has increased steadily, from 19.6 percent of cases filed in 1997 to 24.4 percent of cases filed in 2009. Why do you think this number is increasing?
3. Think about the job that you would like most to have when you graduate college. What do you think the “essential functions” of that job are? What sorts of disabilities do you think would disqualify you or someone else from performing those essential functions?
4. Do you believe that alcoholics should be considered disabled under the ADA? Why or why not?
5. A person with a lifetime allergy to peanuts is probably disabled under the ADA, but a person with seasonal allergies to pollen is not. Does this distinction make sense to you? Why or why not? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/12%3A_Employment_Discrimination/12.04%3A_Other_Federal_Antidiscrimination_Laws.txt |
Most people find the idea of being judged based on the basis of an “immutable” characteristic such as race, color, or sex grossly unfair. We wish to be judged on the basis of our merit and character, things that we can control. The same is true in the workplace, where most people hold firm to the belief that the hardest working, smartest, and most business-savvy should succeed. Employment discrimination law is meant to address this ideal, but like all laws, it can be a blunt instrument where sometimes a finer approach is called for.
Hyperlink: A Class Divided
http://www.pbs.org/wgbh/pages/frontline/shows/divided
On the morning after Martin Luther King Jr. was assassinated, Jane Elliott, a third-grade teacher in an all-white elementary school in Iowa, divided her class into two groups: those with brown eyes and those with blue eyes. It was 1968, four years after Title VII, and the country was still torn by racial discrimination. What Jane Elliott found out that day about the nature of discrimination and the lessons her students took with them after the experiment was over are the subject of this Frontline documentary.
In many ways, the debates surrounding what kind of protections against discrimination Americans should enjoy in the workplace mirror larger debates about the role of government in ensuring the equal protection of the laws for its citizens. Since the laws in this area are notoriously difficult to interpret, it falls on judges and juries to decide when illegal discrimination has taken place. Unfortunately for plaintiffs, the result is often less than justice.
It is hard to prove an employment discrimination case, under either disparate treatment or disparate impact cases. For example, the Equal Employment Opportunity Commission (EEOC) collects statistics for each type of charge filed with the commission and how the case is resolved. In 2009, for race-based charges, 66 percent resulted in a finding of “no reasonable cause,” meaning the EEOC found no evidence of discrimination.U.S. Equal Employment Opportunity Commission, “Race-Based Charges FY 1997–FY 2009,” http://eeoc.gov/eeoc/statistics/enforcement/race.cfm (accessed September 27, 2010). For religion-based charges, 61 percent resulted in a finding of “no reasonable cause.”U.S. Equal Employment Opportunity Commission, “Religion-Based Charges FY 1997–FY 2009,” http://eeoc.gov/eeoc/statistics/enforcement/religion.cfm (accessed September 27, 2010). The proof necessary to win these cases, as well as the reluctance of plaintiffs to come forward when they might be reliant on the employer for a continuing paycheck, mean that many instances of illegal discrimination go unreported. Often, those being discriminated against are among vulnerable populations with no independent means of living if they lose their jobs. To top it off, the low success rates mean that attorneys in employment discrimination cases rarely take their cases on contingency, so victims have to pay expensive hourly fees. The rise of predispute arbitration clauses in the employment setting also means that workers facing illegal discrimination face a huge chasm between the promise of equality under the law and the reality of pursuing that promise.
As we move into the twenty-first century, new workplace discrimination issues will continue to surface. There is already widespread concern about the use of genetic information found in DNA to discriminate against employees because of the chances they might get a certain disease. This concern led to the passage of the Genetic Information Nondiscrimination Act of 2008. In spite of legislative action, however, too many cases of illegal discrimination are still taking place in the workplace. Adequately addressing this injustice will ultimately fall on a new generation of business leaders, such as you. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/12%3A_Employment_Discrimination/12.05%3A_Concluding_Thoughts.txt |
Learning Objectives
After reading this chapter, you should understand the foundational concepts of business in the global environment. You will learn about why it is important to understand the global legal environment, as well as some of the sources of international law that pertain to business. You will examine the concept of sovereignty and the unique challenges that concept poses, specifically in relation to ethical questions arising in the international business context. You will explore concepts critical to conducting business in the international environment, including trade regulations, international contract formation, and prohibited activities. At the conclusion of this chapter, you should be able to answer the following questions:
• Why is the global legal environment important to all businesses?
• What is international law?
• What laws are relevant to businesses operating internationally?
• What are some current ethical issues associated with the global environment of business?
• What legal considerations exist with respect to trade regulations, international contract formation, employment and human rights issues, and prohibited activities in the international environment?
It’s a globalizing world. If you are considering starting a small business, it may not occur to you to consider exporting your product. However, according to the Small Business Association, 96 percent of the world’s potential customers live outside of the United States.U.S. Small Business Administration, “Take Your Business Global,” June 2010, www.sba.gov/idc/groups/public/documents/sba_program_office/oit_sba_fast_facts.pdf (accessed September 27, 2010). So what’s stopping you? Maybe you are not sure how to negotiate a contract with a supplier or manufacturer overseas. Or maybe you are uncertain about U.S. laws relating to importing and exporting. The international market is lucrative, though the legal environment for operating in that forum is different from that for a business that operates exclusively within the borders of the United States. For this reason, it is important to be familiar with some of the basic concepts of doing business in the global economy.
You may be acquainted with challenges faced by U.S. businesses and workers when considering the questions associated with this new business environment. When we shop for food, computers, clothing, pet food, automobiles, or just about anything produced for the global market, we might very well purchase a final product from a different country, or a product composed of components or labor from many different parts of the world. Economists tell us that this represents the most efficient method of production and labor. After all, if a business can pay \$1 per hour to a worker overseas, why would it choose instead to pay \$12 per hour to a U.S. worker?
Of course, it’s not necessarily a sunny picture for people whose jobs have been outsourced. Additionally, businesses operating in the international environment face unique questions. For instance, if the new labor force that is being paid \$1 per hour is composed of workers who are forced into sweatshop conditions, then there may be serious consumer backlash against the company that has chosen to do business with that particular manufacturer. Check out "Hyperlink: National Labor Committee" to view current stories about modern sweatshops that produce goods that you may own.
Hyperlink: National Labor Committee
www.nlcnet.org
Click on Alerts or Reports at the top of the page. Do you recognize any products that you own or companies that you enjoy shopping with?
Even if the consumers do not respond negatively to business decisions that result in the use of child labor or sweatshop conditions for the production of goods, the question of ethics still remains. For instance, does a company wish to place profit over concerns that it might have about human rights? And, does a company have any long-lasting duties to its U.S. workforce, or is it all right to simply outsource jobs if it makes economic sense to do so?
Besides human rights issues, other concerns about doing business in the international environment exist. For example, it is not uncommon for polluting industries to locate to countries that have laxer environmental regulations than they would face at home. Environmental degradation, such as the overuse of natural resources, generation of pollution, and improper disposal of waste products, is a common by-product of global businesses.
International business includes not only trade in new goods but also the disposal of old ones. For example, the U.S. Government Accounting Office found, after an undercover investigation, that many U.S. companies were willing to export old electronic products that contain cathode-ray tubes (CRTs), each composed of several pounds of lead, to countries where unsafe recycling practices occur, without following U.S. regulatory law. Unsafe recycling of toxic electronic waste, known as e-waste, has serious effects on the environment and on human health. Additionally, some of the companies that were willing to do this have publically proclaimed their commitments to environmentally safe practices.U.S. Government Accountability Office, “Electronic Waste: EPA Needs to Better Control Harmful U.S. Exports through Stronger Enforcement and More Comprehensive Regulation,” GAO 08-1044, August 2008, http://www.gao.gov/new.items/d081044.pdf (accessed September 27, 2010). Check out "Hyperlink: E-waste: From the United States to China" for a video concerning U.S. exporting of toxic waste.
Hyperlink: E-waste: From the United States to China
www.cbsnews.com/video/watch/?id=5274959n&tag=related;photovideo
Environmental degradation is much like sweatshop labor in the sense that some companies that engage in harmful practices will pay the price by suffering the fallout from consumer protests. Again, regardless of consumer reaction, the question of whether to engage in such practices is not only a legal question but also a question of ethics.
This chapter explores the nature of international law. Additionally, it reviews considerations that are relevant to businesses operating internationally, such as trade regulations, contract formation between international parties, and prohibited activities. It also examines some current ethical issues associated with the global environment of business.
Exercise \(1\)
1. Check out "Hyperlink: National Labor Committee", the Web site for the National Labor Committee. Click on Alerts or Reports at the top of the page. Do you recognize any products that you own or companies that you do business with? Pick a story concerning a company that you do business with, or that you have considered doing business with. After reading the report, would you consider boycotting that company’s products? Why or why not?
2. View the video in "Hyperlink: E-waste: From the United States to China". What types of e-waste do you produce? Where does it go? For example, how did you dispose of your last cell phone? Your last computer? Your last iPod? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/13%3A_Business_in_the_Global_Legal_Environment/13.01%3A_Introduction.txt |
Learning Objectives
• Compare and contrast the structure of international law with that of domestic law.
• Understand the difference between international law between states and law as it applies to businesses operating internationally.
Imagine hearing allegations that your company’s products are being assembled overseas in working conditions that have resulted in extreme despondency among workers, including several suicides. This is precisely the situation that Apple, Dell, Hewlett-Packard, and others find themselves in. Foxconn, which is part of the Taiwan-based Hon Hai Precision Industry Co., operates a large electronics assembly complex in China. Allegations have arisen that harsh working conditions have led to a string of suicides. If true, should these U.S. companies find another electronics manufacturer to assemble their products? Do consumers have any voice in this matter?
From your seat, it may seem like an obvious point that businesses should follow the laws and behave ethically in their business dealings if they wish to be successful for the long haul. However, when we look at the question of how a company might “follow the law,” we need to consider which laws we are referring to. When a U.S. company conducts business in another country, it must comply with applicable U.S. law, and with the law of the foreign nation where it is located. Several U.S. laws apply to the business activities of U.S. companies operating on foreign soil. However, it is perfectly legal for a U.S. company to contract with an overseas manufacturer for labor, without insisting that those workers are paid a wage equal to the U.S. federal minimum wage. In the case of Hon Hai and Foxconn, none of the U.S. companies can get into legal trouble regarding the fact that, until very recently, the average worker there made the equivalent of \$132 per week, which is, of course, far below the U.S. federal minimum wage.Ting-I Tsai, “Hon Hai Gives Workers a Raise,” Wall Street Journal, May 29, 2010, http://online.wsj.com/article/SB10001424052748703957604575272454248180106.html?mod=WSJ_hpp_sections_tech (accessed September 27, 2010). There are several reasons for this.
Imagine that Apple alleged that labor conditions were not contractually satisfied and, therefore, Foxconn and Hon Hai Precision Industry Co. breached the agreement that they had made with Apple. If this were the case, Apple may wish to terminate its relationship with these companies. However, it is unlikely that the Asian companies would agree. This means that a dispute could arise under a contract between international parties. If Foxconn and Hon Hai disputed this allegation, which rule of law should govern the dispute? In the United States, contracts laws are state law rather than federal law, so should the laws of a particular state, like California, be applied to this dispute? Or should Chinese law apply? This can be a complicated question for several reasons. However, it is necessary to first examine of the nature of international law to understand this complexity. Try to make a distinction between the nature of international law between nation-states and the nature of law as it applies to businesses operating in the international arena. In the next section, we will return to the question of which type of law should apply to disputes in international contracts.
The Basics of International Law between Nation-States
We are all subject to domestic laws, because we all live in a sovereign state. A sovereign state is a political entity that governs the affairs of its own territory without being subjected to an outside authority. Countries are sovereign states. The United States, Mexico, Japan, Cambodia, Chile, and Finland are all examples of sovereign states. In domestic law, or law that is applicable within the nation where it is created, some legitimate authority has the power to create, apply, and enforce a rule of law system. There is a legitimate law-creating authority at the “top,” and the people to be governed at the “bottom.” The law might be conceived of as being “handed down” to the people within its jurisdiction. This is a vertical structure of law, because there is some “higher” authority that imposes a rule of law on the people. In the United States, laws are handed down by the legislative branch in the form of statutory law, by the judicial branch in the form of common law, and by the executive branch in the form of executive orders, rules, and regulations. These government branches have legitimate authority to create a rule of law system, and this authority is derived from the U.S. Constitution. See Figure 13.2.1 "The Vertical Nature of U.S. Domestic Law" for a simple illustration of the vertical nature of domestic law in the United States. Of course, people can influence who become members of the branches of government through elections and which issues are brought before government to consider and possibly legislate, but that does not change the fact that people are subjected to laws that are handed down in a vertical nature.
It’s important to note, however, that not all law can be conceived as a vertical structure. Some laws, such as international law, or law between sovereign states, are best thought of in a horizontal structure. For example, treaties have a horizontal structure. This is because the parties to international treaties are sovereign states. Since each state is sovereign, that means that one sovereign state is not in a legally dominant or authoritative position over the other. See Figure 13.2.2 "An Illustration of the Horizontal Nature of International Law between Nation-States" for an illustration of the horizontal nature of international law between nation-states, using the North American Free Trade Agreement as an example.
An obvious challenge to laws created in horizontal power structures that lie outside of any legitimate lawmaking authority “above” the parties is that enforcement of violations can be difficult. For this reason, many horizontal laws, like treaties, contain provisions that require the parties to the treaty to submit to a treaty-created dispute resolution panel or other neutral tribunal, such as the International Court of Justice (ICJ). Though it is common for treaties to set forth expectations that disputes will be heard before some predesignated tribunal, some international relations experts believe that the state of international law is one of persistent anarchy.
Examine the differences between vertical structure and horizontal structures of law. Consider the case of a criminal in the United States. The criminal can be prosecuted by the laws of the United States (federal or state, depending on the jurisdiction of the offence) and, if convicted, will have to submit to the authority of the United States for punishment. This is because we recognize that there is some legitimate authority in domestic law that allows the U.S. government to exact punishment against convicted criminals. Compare this to a sovereign state that violates a treaty agreement. For example, perhaps a member of a treaty has broken its treaty promise to refrain from fishing in a certain fishery. Since in the international arena there is no overarching power “above” the parties to a treaty, enforcement of treaty agreements can be difficult.
Another common challenge in international law is that the laws are applicable only to parties who voluntarily choose to participate in them. This means that a sovereign state cannot generally be compelled to submit to the authority of the international law if it chooses not to participate. Compare this with domestic law. Everyone within the United States, for example, is subject to the jurisdiction of certain state and federal courts, whether they voluntarily choose to submit to jurisdiction or not. This is why fleeing criminals can legitimately be caught and brought to justice in domestic law through extradition.
The Nature of Law as It Applies to Businesses Operating in the International Arena
Businesses are not involved in signing treaties or in creating law that applies between sovereign states. Indeed, the sovereign states themselves have the only power to conduct foreign affairs. In the United States, that power rests with the president, though Congress also has important roles. For example, the Senate must ratify a treaty before the treaty binds the United States and before its provisions become law for the people within the United States.
However, businesses are required to abide by their own applicable domestic laws as well as the laws of the foreign country in which they are conducting business. When domestic laws apply to businesses operating internationally, that is a vertical legal structure, such as is illustrated in Figure 13.2.1 "The Vertical Nature of U.S. Domestic Law". This is because there is a legitimate authority over the business that governs its behavior.
As noted in the example concerning U.S. companies doing business with Foxconn and Hon Hai Precision Industry Co., international business can involve creating contracts between parties from different nations. These contracts are horizontal in nature, much like a treaty. However, they are also subject to a vertical legal structure, because the parties to the contact will have chosen which laws will apply to resolve disputes arising under the contract. For example, if Microsoft, a U.S. company, has a contract with KYE Systems Corp., a Chinese manufacturer, to assemble its products, the contract might very well include a choice of law clause that would require any contract dispute to be settled in accordance with Washington State law. A choice of law clause is a contractual provision that specifies which law and jurisdiction will apply to disputes arising under the contract. The contract might contain such a clause because Microsoft’s headquarters are in Washington State, and it would be more convenient for Microsoft to settle any disputes arising under a contract by using the laws in the state where it is located. This probably would be terribly inconvenient for KYE Systems Corp., but the benefits of obtaining a Microsoft contract probably outweigh the potential inconvenience of resolving disputes in the Washington State court system. Additionally, a well-established United Nations treaty, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, provides for the enforcement of arbitral awards among member states. That means Microsoft and KYE Systems Corp. could agree in a predispute arbitration clause, perhaps in a purchase order or invoice, to arbitrate their disputes in Washington, using Washington contract law, and in English. The prevailing party in the arbitration could take the award to court in either Washington or China and convert it into a legally binding judgment under the treaty. Choice of law clauses have consequences regarding the way the contract will be interpreted in the event of a dispute, costs associated with defending a complaint arising under a contract, and convenience. See Figure 13.2.3 "The Horizontal and Vertical Nature of Contract Relationships in the Global Legal Environment" for an illustration of the horizontal and vertical nature of contract law in international business.
Key Takeaways
While international law between sovereign states is relevant to business in many ways—for instance, it would be illegal for a company to ignore the terms of a treaty that its own country had ratified—the types of law that are relevant to businesses operating in the international environment are domestic laws. A choice of law clause within the contract designates which country’s law will apply to a dispute arising under an international contract.
Exercise \(1\)
1. If you were creating a contract with a supplier in a different country, what types of things would you consider when deciding on the choice of law clause?
2. Check out www.ustr.gov/trade-agreements/free-trade-agreements/north-american-free-trade- agreement-nafta. How might this international law present opportunities for businesses in the United States that might wish to export or import products to or from Canada or Mexico?
3. Could a U.S. state enter into a treaty with a sovereign nation outside the United States? Why or why not? | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/13%3A_Business_in_the_Global_Legal_Environment/13.02%3A_The_Nature_of_International_Law.txt |
Learning Objectives
• Examine U.S. trade regulations.
• Explore considerations for contracts in the international environment.
• Examine prohibitions of certain business activities in the international context.
Several U.S. laws apply to U.S. companies conducting business internationally. For example, trade regulations are relevant to importers and exporters of products. Also, some activities are prohibited to U.S. businesses, such as doing business with a terrorist organization. It is important for all companies contemplating doing business in the international environment to understand the laws that apply to their activities so that they can avoid criminal and civil liability, and maintain a commitment to ethics.
Trade Regulations
The removal or reduction of trade barriers in accordance with the former General Agreement on Tariffs and Trade (GATT) and most recently the World Trade Organization presents opportunities for businesses. Likewise, multinational agreements that remove trade barriers to create largely duty-free and tariff-free trading zones, such as the North American Free Trade Agreement, allow for freer flow of goods and services between specific countries. These agreements create tremendous opportunities for businesses because they lower the costs associated with importing and exporting, which is a primary consideration for many companies.
Companies wishing to export or import products are subject to federal trade regulations. Export controls prohibit or restrict the export of certain types of products while limiting or restricting specific products from entering a country, perhaps by way of tariffs or quotas. The U.S. government views exporting as a privilege and not as a right and has the authority to impose a total ban on exporting on U.S. companies for export control violations. Try to imagine what an export ban would do to companies such as Microsoft, Boeing, or Apple.
The activities of companies that ship products overseas are subject to federal export controls. To export simply means to transport products to another country. Export controls are regulated by several departments of the federal government. For example, the Export Administration Regulations are administered by the U.S. Department of Commerce Bureau of Industry and Security, and they regulate items that may have a dual commercial or military use, such as computers and electronics. The U.S. Department of the Treasury Office of Foreign Assets Control regulates and enforces trade sanctions. The U.S. Department of State International Traffic in Arms Regulation prohibits certain types of trade, such as the unlicensed export of weaponry and certain chemicals.
Other federal agencies and programs exist in a supportive capacity, to assist U.S. businesses in their export endeavors rather than to regulate and enforce export controls. For example, the U.S. Department of Commerce’s International Trade Administration supports U.S. exports and competitiveness abroad. Check out "Hyperlink: Exporting?" for several short videos designed to teach companies how to engage in this lucrative and large marketplace.
Hyperlink: Exporting?
http://www.census.gov/foreign-trade/aes/exporttraining/videos
Check out these short training videos to learn about regulatory compliance.
Similarly, the National Export Initiative was created by the Obama administration, and it assists U.S. businesses to operate in the global market. Check out President Obama discussing the need to boost exports at a recent import/export conference.
Hyperlink: President Obama Discussing the Importance of Export and the Creation of the National Export Initiative
www.export.gov/nei/index.asp
Companies wishing to import products are also subject to import controls. Import controls take many forms including tariffs, quotas, and bans or restrictions. The U.S. Department of Homeland Security Customs and Border Protection Agency (CBA) has a primary role in import control administration and regulation. For example, it inspects imports to classify them to establish their tariff schedule.
A tariff applies to certain goods imported from other countries. Tariffs are import taxes. They are imposed to render the imported product more expensive and to keep the cost of nonimported products (domestic products) attractive to consumers. CBA customs officers classify the imported goods, which determines the applicable tariff. However, the Customs Modernization and Informed Compliance Act places responsibility for compliance with import laws on the importer.
Quotas apply to certain goods. Quotas are simply limits on quantity. No absolute quotas exist, but certain tariff rate quotas apply to certain items, such as specific types of textiles and dairy products. A tariff rate quota simply provides favorable tariffs on certain quantities of particular types of imports.
Bans apply to goods that are prohibited by law to import, because they are dangerous to public safety, health, the environment, or national interests. Other items are restricted from import. For example, it is illegal to import items of cultural heritage from other countries without permission. Check out "Hyperlink: What? These Old Rocks?" to see a recent story about 525-million-year-old fossils that were illegally imported into the United States and have been returned to China.
Hyperlink: What? These Old Rocks?
www.cbp.gov/xp/cgov/newsroom/highlights/chinese_fossils.xml
Along with the CBA, the U.S. International Trade Commission investigates import injuries to the United States, such as dumping and subsidized imports, and the need for safeguards. Dumping is when a foreign producer exports products to sell at prices less than its cost of manufacturing. Subsidized imports are products produced overseas for which a government has provided financial assistance for the production. When dumping or subsidized imports materially injure or threaten to injure domestic producers, the United States may impose a countervailing duty for subsidized products or an antidumping duty for dumped products. These duties, which are particular types of tariffs, reduce the negative impact that such practices could have on U.S. companies. Safeguards are limited duration growth restrictions that are imposed when domestic markets are threatened or injured from imports. This allows for domestic markets to adjust to the surge from the import market. For example, the United States imposed safeguards on Chinese textiles in response to actual or threatened market disruption of the U.S. textile industry.U.S. Government Accountability Office, “U.S.-China Trade: Textile Safeguards Should Be Improved,” GAO-05-296, April 2005, http://www.gao.gov/new.items/d05296.pdf (accessed September 27, 2010).
Contracts
The U.N. Convention on Contracts for the International Sale of Goods (CISG) applies to the sale of goods between parties from countries that are signatories to this treaty. Like the Uniform Commercial Code (UCC), it creates a uniform law for the parties that adopt it. Specifically, the CISG applies to contracts for international sale of commercial goods. Additionally, like the UCC, it provides gap-fillers for terms that may not be expressly stated in the contract. However, important differences between the UCC and the CISG exist, particularly with respect to revocability of an offer, acceptance, the requirement for a writing to be enforceable, and essential terms. See Figure 13.3.1 "A Comparison of Differences between the CISG and the UCC" for a comparison between the CISG and the UCC.U.S. Department of Commerce, Office of the Chief Counsel for International Commerce, “The U.N. Convention on Contracts for the International Sale of Goods,” August 2002, www.osec.doc.gov/ogc/occic/cisg.htm (accessed September 27, 2010). The contracting parties may opt out of the CISG, providing that they do it expressly.
The CISG does not limit the parties to a particular forum to resolve disputes, and it does not limit the terms of the contract itself. It is important for parties to choose which forum will apply to disputes arising under the contract. Choice of forum clauses specify where complaints will be heard. If parties opt out of the CISG, then they must choose which law will apply to their contract by a choice of law clause. The parties will also need to agree on the official language of the contract. Given the precise language necessary for contractual agreements to be interpreted, this choice clearly matters to the interests of the contracting parties.
Employment Law and Human Rights
U.S. citizens that are working for U.S. companies overseas are protected by U.S. federal employment laws, such as Title VII of the Civil Rights Act and the Americans with Disabilities Act. This means that U.S. companies may not illegally discriminate against U.S. employees with a protected characteristic simply because those employees happen to report to work for the company on foreign soil.
Additionally, the Alien Torts Claims Act allows noncitizens to bring suit in U.S. federal court against U.S. businesses or citizens that have committed torts or human rights violations in foreign lands.
Prohibited Activities
Those engaged in international business must be aware of prohibited activities, because severe criminal penalties are possible. For example, paying bribes to get things done is not permitted. The Foreign Corrupt Practices Act (FCPA) prohibits the payment of bribes by U.S. companies and the employees of those companies. Violation of this law is a criminal offense. It does, however, permit grease payments, or facilitating payments, if such payments are permitted by the local government where the payments occurred. Since it is extremely rare to find a jurisdiction that legally permits grease payments (even in countries where corruption is rampant, it’s probably still illegal), the grease payments exception provides false comfort to those who undertake to use it.
U.S. citizens and companies must refrain from doing business with prohibited people or entities. The U.S. Department of the Treasury Office of Foreign Assets Control (OFAC) maintains a list of Specially Designated Nationals and Blocked Persons, which is a list of persons, businesses, and entities with which U.S. citizens are forbidden from conducting business. Similarly, U.S. citizens are not permitted to engage in trade or business dealings with those in countries in which a U.S. embargo or U.S. imposed economic sanctions exists. Check out "Hyperlink: Prohibited Parties" for these lists.
Hyperlink: Prohibited Parties
Specially Designated Nationals and Blocked Persons List
www.treas.gov/offices/enforcement/ofac/sdn
Economic Sanctions
www.treas.gov/offices/enforcement/ofac/programs/index.shtml
U.S. citizens are also blocked from conducting transactions with terrorists or terrorist organizations.U.S. Department of the Treasury, Office of Foreign Assets Control, “Terrorism: What You Need to Know about U.S. Sanctions,” Executive Order 13224 §2(a), September 23, 2001, www.treasury.gov/offices/enforcement/ofac/programs/terror/terror.pdf (accessed September 27, 2010). Conducting transactions with prohibited persons, entities, or businesses can result in serious criminal violations, which carry financial penalties and long prison sentences.
Finally, while the United States maintains economic boycotts against several countries, under U.S. antiboycott laws it is illegal for U.S. persons and companies to comply with any unsanctioned foreign boycott. The most important unsanctioned foreign boycott is the long-standing Arab League boycott of Israel. If a U.S. person or company receives a request to comply with the boycott of Israel (such as a request from a buyer in Saudi Arabia not to ship goods via Israel, or not to ship on an Israeli flag ship, or even to state whether the seller has any operations in Israel or to state the religious affiliations of each employee in the company), then the U.S. person or company must refuse to comply with the request and report it to the appropriate U.S. government agency within a specified period of time.
Key Takeaways
International business opportunities are lucrative, and the global marketplace provides vast opportunities for growth. However, U.S. companies that engage in international business are subject to trade regulations, must be cognizant of the challenges inherent when forming international contracts, and are prohibited from engaging in certain activities.
Exercise \(1\)
1. Look at the clothing labels of the clothes you are wearing. Was anything that you are wearing produced in the United States? Besides garment appeal, what types of considerations might consumers weigh when deciding to buy apparel?
2. What are the benefits and drawbacks of import controls for domestic industries? Do you favor stronger controls? More lax controls? Why?
3. Several U.S. sanctions programs are limited to U.S. companies only. The decades-old sanctions program against Cuba, for example, has meant that Asian and European companies can do as much business as they wish in Cuba. How effective do you think a sanctions program like this can be? Who are the winners, and who are the losers?
4. Wal-Mart, as a U.S. company, does not do any business in Cuba and does not purchase from any Cuban suppliers. Wal-Mart Canada, a Canadian company, found out several years ago that a supplier outsourced the manufacture of pajamas to Cuba, and that these Cuban-made pajamas were being sold in Wal-Mart’s Canadian stores. The U.S. parent company ordered the Canadian subsidiary to pull the product, but the Canadian subsidiary reported that doing so would violate Canadian law, which prohibits Canadian companies from complying with the U.S. boycott of Cuba. What should Wal-Mart U.S. do? What should Wal-Mart Canada do?
13.04: Concluding Thoughts
Tremendous opportunities exist for companies that wish to operate in the international markets. However, the international legal environment requires careful planning to avoid costly mistakes associated with violations of trade regulations, the formation of international contracts, and criminal prohibitions. Additionally, ethical considerations involving human rights and the natural environment are ever present. | textbooks/biz/Civil_Law/The_Legal_and_Ethical_Environment_of_Business/13%3A_Business_in_the_Global_Legal_Environment/13.03%3A_Trade_Regulations_Contracts_and_Prohibited_Activities_in_International_Business.txt |
The Origins of Tort Law
The purposes of tort law have expanded over the centuries of its evolution. In its earliest forms in England in the 12th century, tort claims provided a means of ordering civil society and keeping the peace. By defining certain conduct as wrongful and enabling a means of redress for harms caused by deviations from that standard, tort law reflected and helped shape social behavior and expectations.
It was the Industrial Revolution in England (roughly defined as the late 18th through early 19th century) that paved the way for the rise of modern tort law. Changes in manufacturing and transportation transformed the agricultural economy and brought sweeping changes to labor practices. Innovative technologies continued to be developed to meet the demands of operating efficiently at this new scale. Increasing mechanization in the industrialized workforce forced new patterns of behavior and exposed human bodies to increased risks of catastrophic harm. The rise of railway travel, likewise, brought a new wave of accidents—and accident law—both in England and in the United States, whose jurisprudence borrowed heavily from English law. While tort law first began to be recognized as a distinct field in England in the 18th century, in the U.S., tort did not consolidate into a recognized area of law until later in the 19th century.
Initially, workers found tort law’s rigid strictures to be barriers to recovery. Various protective doctrines insulated employers from the costs of employee injuries and made it difficult for employees, and often their widows, to recover legally for injuries and death. Indeed, some have argued that the rise of negligence law was rooted in the legislative efforts to insulate businesses from liability that might otherwise attach more easily under a strict liability (or “no fault”) standard. Under this view, negligence law developed partly as a way to support the growth of businesses whose operations could have been hindered by expansive tort liability in this era prior to the creation of alternative mechanisms for dealing with employee injuries. Ultimately, tort law played a critical role in increasing worker safety and in the early twentieth century, its changing rules helped give rise to our current systems of workers’ compensation, private insurance and consumer protection law. In some respects, tort law both reflects the values of the jurisdiction that develops it and contributes to shaping behavior and values in the community it regulates.
In addition to its common law evolution, tort law in the modern era has taken shape from a significant amount of state and federal legislation. In the United States, the 20th century witnessed the growth of a culture of governance through agencies and statutes, sometimes referred to as the rise of the “administrative state.” Many actions that might have been addressed through common law principles are now governed by state or federal statutes, administrative regulations or municipal ordinances. Consequently, studying tort law also provides a valuable exploration of the common law’s interaction with statutory and administrative regimes.
Introduction to Studying Tort Law
Welcome to the study of tort law. The word tort comes from the Latin torquere, “to twist.” In Middle English, it meant “injury” –or the idea of twisting or turning that leads to harm—and in contemporary French it still means “wrong.” “Torts” are wrongful actions that cause some kind of harm for which the victims of the harm may seek legal relief. Torts are not usually wrongs arising from the breach of a contract. While there is a tort called “tortious interference with contract” (which is what it sounds like), and there are a few other instances where tort and contract law intersect, generally torts pertain to actions between parties who might have never made any sort of contract or promise to collaborate. A common remedy for breach of contract law is “performance,” or forcing the party to complete what they promised to do by contract. However, tort actions most often arise between strangers, not parties who signed a contract or made mutual promises. Relatedly, the typical remedy under tort law is compensation through money damages. Keep in mind as you launch your study of torts the different way remedies are redressed in this context of harms arising usually outside of any contract or promise. An important feature of the torts litigation landscape is the contingent fee arrangement: the plaintiff’s attorney takes the tort case in the hopes of winning it and receives payment only if the plaintiff wins. In such cases, the attorney commonly receives around a third of the plaintiff’s award.
Legally speaking, tort lawsuits are civil, not criminal actions, which means they are brought by private parties against other parties. As with almost every legal generalization, there are exceptions to the dividing line between tort law and criminal law. A driver who causes significant losses and harms at the wheel could be guilty under criminal law as well as liable for negligence under civillaw. Different actions—or lawsuits—would be brought by different entities seeking different remedies, animated by different purposes and subject to different procedural and substantive rules. The introductory torts course will rarely dwell much on the tort/criminal intersection. Torts is a class that typically introduces law students to civil law and most professors focus accordingly.
Tortious conduct may involve physical harm caused to people or property by car accidents, machinery malfunctions, medical malpractice, trespass on land, false imprisonment, and assault and battery, to name the most common kinds.[1] Victims may also recover in some cases where there has been no physical harm, where they can show that the tortious conduct has caused harm to their reputation, dignity, privacy, mental wellbeing or, in a narrower subset of cases, when they have suffered because their family members or loved ones have been physically harmed.
Effects of Contemporary Tort Law
In the modern era, the effects of contemporary tort law are hotly debated. The torts “system” is not some centralized agency with consistent and predictable rulings but rather a complex set of interactions between state laws—which vary greatly—and federal laws. In addition, agency regulations and constitutional limits further shape the contours of contemporary law. Partly as a result of this decentralization, amassing systematic data is challenging if not impossible. Moreover, most cases settle in private agreements, never rise to full legal disputes in the first place, or are handled as a matter of insurance and thus remain “off the radar” of legal cases and published opinions that can be tracked and studied.
Nonetheless, there is some consensus that tort law continues to play a role in disciplining the behavior of manufacturers, corporations and even government entities who may otherwise have incentives to cut costs on safety measures. Class action lawsuits brought to help those who have been injured, say by chemicals (like asbestos or diacetyl) or products (like tobacco, baby powder or certain breast implants) attempt to compensate and protect those who have suffered due to conduct that caused harm on a vast scale. These lawsuits arguably play a deterring role and encourage entities to adopt a safer calculus in their risk assessments as they contemplate their choices for the future. However, the extent of that deterrence is debated and difficult to measure empirically. Once again, there is some consensus that almost all entities that operate on any significant scale anticipate and accept some liability as a cost of doing business. They will usually be forced to adjust their liability projections and behaviors after major litigation, for both economic and legal reasons.
Consequently, tort law disciplines actors by incentivizing them to determine and maintain optimally safe choices and by forcing them to internalize the costs of any injuries arising when they have failed to do so. Yet tort law seeks an optimal level of safety, not 100% protection against all possible risks. If companies could guarantee perfect safety, they would probably be taking such burdensome precautions that they would be overdeterring, that is, behaving in a way that was not necessarily justified by efficiency concerns and likely not required by morality concerns. This is especially the case if in adopting excessive precautions, entities chose to pass on the added costs to consumers. Under the economic (efficiency-maximizing) theory, tort law operates in light of a calculus that balances the kinds of harms likely to flow from certain conduct against the costs of refraining from that conduct or taking precautions to minimize its ensuing risks. Under the corrective justice (compensation or recourse) theory, tort law seeks to vindicate those that have been harmed. But even in that view of tort law, rights and duties are always relative: how will they affect all the relevant stakeholders?
Because tort law is so malleable and diverse by jurisdiction, there are regularly opportunities to reflect on the law’s present and future state and to consider the rights it recognizes as well as the values it expresses. What will society look like if cases develop in one way versus another? How faithful is the law not just to precedents and legal history but to the future our society wishes to develop?
Thus far, this Introduction has described tort law mostly in terms of its effects on industrial actors and customers or consumers, presuming injuries that are physical. Yet in addition to structuring some of the risks and protections around corporate behavior and consumer safety, tort law plays an important role with respect to intangible injuries in our information-rich society. In protecting against misrepresentations, fraud and false speech, for example, tort principles underpin the laws of false advertising, securities regulation, product warnings and labeling, and defamation. In your later years as law students, you will likely choose to pursue at least some classes that are rooted in part in tort law, such as environmental law, intellectual property law, corporate governance, insurance law, employment discrimination, and agency law, among others. In these upper-division areas, you will find that many of the key concepts you learn in your first year remain relevant, such as how courts and policymakers identify, define and balance rights and duties.
Tort law also plays a significant role in the sphere of our social lives. In providing compensation under wrongful death statutes and compensating for loss of consortium when individuals lose family members and spouses, tort law clearly signals certain values about the primacy of family in society and the importance of emotional ties to others. In allowing recovery for a wrongful sterilization or the loss of a fetus and in subordinating injuries to property and pets below injuries to humans, tort law signals certain values. With regard to defamation claims, tort law similarly reveals choices embedded in the system. For instance, certain categories of allegedly defamatory statements permit the plaintiff to avoid proving harm. Until as recently as 2020 in the socially progressive state of New York, one of these categories was still homosexuality–along with criminality, professional incompetence and loathsome disease. While courts and legislators make efforts to be or to sound neutral, tort law nonetheless displays certain choices and values. Consequently, tort can become a conduit for social change or an impediment to it.
Systemic Biases in Tort Law: Physical versus Emotional Harm
In many respects, tort law’s role in regulating—and perpetuating—certain kinds of discrimination has not been the focus of scholars and law professors. Much of twentieth-century tort law has centered on strict liability and negligence, which is to say on the law of accidents. Various doctrines predicated recovery on proof of physical harm. Historically, this requirement had the effect of making recovery for emotional distress very difficult other than when it accompanied physical injuries. Contemporary tort law has been slow and reluctant to recognize injuries that are purely emotional. Indeed, there was initially thought to be no way to recover for “purely emotional” harm. Tort law’s historical reluctance to allow recovery for emotional harm and its insistence on proving physical harm both reflected biases that can now be seen to have fallen disproportionately on women. There was a corresponding lack of scholarly attention to some of the kinds of harms suffered by women and people of color. To be sure, courts applying tort law’s doctrines might have felt bound by precedents and rules but scholars need not have ignored or marginalized injuries resulting only in emotional harm. Yet they did; the exaggerated emphasis on accidental harms and physical injuries goes beyond courts alone.
In their now-germinal book, The Measure of Injury: Race, Gender, and Tort Law (NYU Press, 2010), Martha Chamallas and Jennifer Wriggins have shown that the focus on negligence came with a corresponding devaluation of the intentional torts. This lopsided account of tort law has been reflected in law school syllabi, legislative agendas and efforts by jurists who study and “restate” or catalog the law, as well as by those who would attempt to reform tort law. Chamallas and Wriggins demonstrate how treating intentional torts as secondary in importance has systematically minimized the suffering of women and people of color.
A revolution in the courts in the second half of the century led to a patchwork of rules created to permit some claims associated with emotional distress under particularly heightened circumstances and narrow cases. A new tort, intentional infliction of emotional distress, was created out of an older cause of action based on “outrage.” The emergence of claims for recovery based on purely emotional distress generated some greater attention to the intentional torts, but there remains much work to do in recognizing the structural biases inherent in tort law.
In addition to the rigid distinctions between physical and emotional harms, for instance, tort law has also treated certain categories of behavior and certain entities as immune from tort liability. In some cases, this has meant that pathological or harmful behavior routinely went unrecognized by tort law. For instance, survivors of domestic violence rarely had viable claims in court even though they would have had winning battery, assault and other intentional torts claims had their assailant not been a romantic partner. Regrettably, this state of affairs has not changed all that much and domestic violence cases often present genuine challenges for both civil and criminal law.
Skeptics of this account might reply that tort law was never intended to remedy marital or domestic controversies, which is true. Indeed, when we inherited English tort law, interspousal immunity—a ban on spouses’ ability to sue each other—came along with it. The renowned 18th-century English jurist, William Blackstone, set out the rationale for that immunity:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. … If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued without making the husband a defendant.
Blackstone’s explanation illustrates how a woman’s legal personhood was effectively dissolved into her husband’s under earlier common law. The two were not commingled in such a way as to make one interchangeable for the other, each with rights to exercise equally. Instead, the husband absorbed her legal personhood and was required to act as the legal person on her behalf if she wanted to exercise legal rights. For this reason, it was thought to be illogical for an entity to … sue itself. (Intraspousal immunity was slowly abandoned, one state at a time, throughout the 20th century, partly because of the sexist rationale.)
Be that as it may, the effect of excluding certain kinds of harms and including others at any given point in time sends signals about the values that are embedded in the legal regime and the interests it seeks most to protect.
Tort Law’s Systemic Biases (Gender, Race and Intersectional Identity Effects)
Tort law may have begun to wrestle with gender and attendant sociological differences, but gender is only one dimension to identity. The challenge is that the impact of injuries lands intersectionally, as a function not just of gender or of race but also of ability, sexual orientation and class, among other identity markers. In the visionary work of Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1249 (1991) Crenshaw writes of ways that different dimensions of identity may typically “intersect” to produce particular experiences of vulnerability. The problem is structural rather than personal or individual: “Intersectional subordination need not be intentionally produced; in fact, it is frequently the consequence of the imposition of one burden that interacts with preexisting vulnerabilities to create yet another dimension of disempowerment.” Exploring the systemic biases in tort law requires grappling with the intersectional effects of its rules and rulings and considering the fundamental principles in tort law with a fresh eye.
Thankfully, there has been some progress on issues of social justice. Yet there is no doubt that tort law continues to reflect signs of deep structural bias. Studies have shown that race and gender biases enter into damages awards in ways that ought to be concerning for policy makers seeking a more equitable legal system. A recent empirical study using mock jurors demonstrated that “[t]he dollar awards for the injuries suffered by black plaintiffs were lower than awards for the same injuries experienced by white plaintiffs,” suggesting that race, and implicit racial bias, are bound up with how the legal system evaluates both responsibility and harm. Jonathan Cardi, Valerie P. Hans and Gregory Parks, Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases, 93 S. Cal. L. Rev. 507 (2020). Actual damages awards have been also measurably lower in patterns that reflect racism and sexism. See, also Jennifer B. Wriggins, Torts, Race, and the Value of Injury, 1900–1949, 49 How. L.J. 99, 101–03 (2005); Jennifer B. Wriggins, Whiteness, Equal Treatment and the Valuation of Injury in Torts, 1900–1940, in Fault Lines: Tort Law and Cultural Practice (David Engel & Michael McCann eds., Stan. Law Books 2009).
In fact, some have argued tort law might be part of the problem. According to professors Ronen Avraham and Kimberly Yuracko, “not only does tort law’s remedial damage scheme perpetuate existing racial and gender inequalities, but also it creates ex ante incentives for potential tortfeasors that encourage future targeting of disadvantaged groups.” Torts and Discrimination, 78 Ohio St. L.J. 661, 666–67 (2017). Avraham and Yuracko argue that tort law can distort behaviors merely in anticipation of liability, thus causing further discrimination.
Tort law has traditionally not been taught in law schools in ways that take account of its systemic biases. Yet various doctrines and limitations that tort law treated as neutral had disproportionate effects that were anything but neutral in whom they most impacted or protected. Courts rarely acknowledge demographic information about the parties in a given dispute unless some aspect of their identity is central to litigation. Law school historically has worsened the problem by treating the law as “perspectiveless” or neutral. Kimberlé Williams Crenshaw, Foreword: Toward a Race Conscious Pedagogy in Legal Education, 11 NAT’L BLACK L.J. 1 (1989). Yet this “neutral” or “colorblind” way of approaching the law often has the effect of ignoring, or even erasing, the discriminatory structures and principles shaping tort law, whether the issues involve sexism, racism, ablism or other forms of structural inequality.
Correcting the various biases will require seeing them first. Our legal system operates by stare decisis, that is, by building on and usually following precedents. In turn, this means that the lawyerly mind is trained to identify and gravitate towards tried and true authorities. In keeping with that inclination, perhaps, the legal academy has tended to teach the same torts cases, thus entrenching not only particular cases but to some extent, also traditional viewpoints. Correcting tort law’s biases may require a revisionist approach to tort law that begins with a reset.
It seems urgent in our era—and hardly out of the mainstream—to call for reexamining tort law’s biases. Theorists associated with various “critical” positions have long called for such a focus on all areas of law. Valuable contributions by critical race theory, critical feminist theory, critical legal studies, “LatCrit” as well as disability crit have laid a foundation for this work. But the work of reenvisioning tort law is not constrained by any one ideological approach, or it ought not to be. It is of concern for all of us engaged in teaching, learning about and practicing tort law.
Consider that tort law was shaped, for a very long time, only by white adjudicators and white jurors, navigated only by white male lawyers and chronicled by white male scholars. Even as that began to change, it remained a system that continued to benefit white cisgendered able-bodied people, especially men and those with more resources and social and cultural privilege. Calling that out does not require any particular political or methodological affiliation. And not calling it out should no longer seem like a defensible option.
The good news is that tort law is capable of incredible nuance, flexibility, and particularization. Those qualities are what can make it frustrating for law students seeking a single hard and fast rule. Yet they are also the very things that make tort law lively and fun to study as well as being capable of significant systemic change.
Tort Law’s Dynamic Nature Depends on—and Changes with—Culture
Tort law is laudably dynamic; it can and does change in response to changing perceptions of both identity and justice. This is why it is especially important for students first learning torts to understand this legal area as one that can play a role in either entrenching various forms of inequality or helping to minimize them. In delineating the behavior our society deems acceptable or out-of-bounds, tort law reflects and defines our social relations. As such, the study of tort law offers students the opportunity to think deeply about their values and belief systems. And it offers them an opportunity to carry into their professions the desire to participate in changing the law as the arc of justice bends, we hope, towards greater justice.
Tort law provides an excellent introduction to the common law precisely because of its capacity for adaptation. It is flexible and changes over time in response to sociocultural, economic and technological pressures. It is flexible by design: several key doctrines use open-ended standards (like “reasonableness”) and disputes often require fact-sensitive assessment. This means that tort cases may be slow or cumbersome or expensive to litigate. The upside is that the law can be tailored to each particular situation, thus allowing for dynamic change that can be harder to achieve when using legislation to regulate behavior.
Tort law’s principles are applied in ways that are contingent (or depend for their application) on the culture and historical moment of those who apply them. That means that tort law’s standard of “reasonableness”—which plays a starring role in negligence but is also embedded in various other doctrines—reflects particular values and perspectives at a given place and moment in time.
A Thought Exercise on “Reasonableness”
Imagine you are a judge and you have been asked to make a decision about whether to allow a case to move forward in an action over a car accident that occurred after the brakes on the defendant driver’s car failed. The driver had seen a notification on the car’s dashboard which included a red light and the words: “brakes require service” This notification came four days prior to the accident and remained on during the intervening time.
At this point, you’ve got only the barest amount of information based on some preliminary exchanges with opposing counsel. Ordinarily, a driver has a duty to exercise reasonable care in everything they do, including in relation to the car itself as well as driving and any risks to others their conduct may cause. You will therefore need to evaluate the reasonableness of the defendant’s actions, and specifically, whether it was reasonable not to have serviced the brakes on the car when the brake light had been on for four days and the brakes failed on day five, causing an accident which caused significant injury to the plaintiff.
What would you want to know in order to assess whether this plaintiff behaved as a reasonable person would under the circumstances?
Picture the reasonable person. Who appears in your mind?
What is the person’s race, gender, ethnicity and age? Did you imagine a person with a disability? What is the person’s cognitive level? What do you presume about this person’s education level and professional status?
There are two points to engaging in this thought exercise. The first is that the assessment of reasonableness is often highly factual and requires balancing. If the car is new and has never malfunctioned before, four days may be very little time from a routine service light’s first appearance to the brake’s failure. If the car is unreliable and the light simply one more sign that it requires maintenance, then waiting four days may seem less excusable. If the car owner knows that service lights come on routinely when the car hits certain mileage numbers, it may be even more defensible to have waited to schedule a routine checkup. Would it matter to you how difficult it was for the driver to make time to get it to the repair shop? What if the driver was a single parent holding down two jobs and they had booked a service appointment for the first day they were off work, which was two days later than the accident? What if the driver was a collegiate athlete involved in exams and training and hadn’t wanted to distract themselves from those goals, thus postponing the maintenance? What if the driver was forgetful and kept meaning to fix the brakes when they saw the light on the dashboard but would forget to make a plan to do so upon leaving the car? What if this forgetfulness were caused by a form of illness, disability or neurodivergence?
The second point is that tort law’s “reasonableness” standard is highly constructed. We ask jurors or judges, sitting as factfinders, to determine it in each case because it can and must be considered in light of all the circumstances. But that does not make it impartial; humans bring their implicit biases and cognitive limitations to the task of determining what is reasonable. As you study tort law, pay attention to ways in which the very idea of reasonableness embeds cultural values or reflects ageist, sexist, ableist, racist or otherwise outdated and harmful notions. Part of changing the law is learning to identify hidden defaults and highlighting their impact.
In our era, tort regulation can be a lightning rod for political and cultural controversy. Tort actions are commonly brought by individuals against other individuals or entities, but their sociocultural context matters and many rulings can have broader impact beyond their individual verdicts. Our approach to tort law will be to ground cases in their sociocultural context and potential impact as we are reading and seeking to apply or distinguish them. I encourage you to think about torts and tort cases “in the real world” not as ancient legal precedents far removed from your experience as a law student and aspiring lawyer.
As your knowledge of this area increases, it may interest you to think about how tort law helps to enforce and balance social and economic norms of fairness and responsibility. For some of us, tort law becomes most interesting when considered as a form of civil justice. Consider, too, the ways in which the law fails to achieve the proper balance or justice, in your view, and how and why that might be.
Purposes and Theories of Tort Law
Purposes. In one sense, merely describing the purposes of tort law is challenging; the field is politicized and animated by sharp philosophical disputes over how to define its scope and purposes. However, the following are noncontroversial starting points: Tort law exists to “(a) give compensation, indemnity or restitution for harms; (b) determine rights; (c) punish wrongdoers and deter wrongful conduct; and (d) vindicate parties and deter retaliation or violent and unlawful self-help.” Restatement (Second) of Torts § 901 (1979)
Tort theorists have argued over whether the purposes of tort are better understood in terms of (1) the positive legal rights of the victim (and compensation they may be owed as well); (2) the rights and duties of members of society to one another (and thus fairness to all individuals); (3) limits on the rights of those who engage in risky conduct or carelessly cause accidents (and the deterrence tort law imposes on them); and (4) the potential benefits to victims, tortfeasors and members of society if the costs of prevention and remuneration are maintained at “optimal” levels (which reflects a commitment to efficiency). Indeed, some casebooks and approaches to tort law focus very heavily on the economics of tort law, consistent with the views tort law’s core purposes are efficiency and compensation. Others may take a more philosophical approach, grounding rights and duties in different theories of justice, highlighting tort law’s purposes of fairness and deterrence.
These terms and theories could be defined at great length and still seem overly simplified to some and mysterious to others. This text does not purport to be a substitute for an in-depth treatment of jurisprudence (which is the study of theories or philosophies of law). But it will use these terms—efficiency, compensation, fairness and deterrence—repeatedly throughout the text, and to ensure that readers understand them, it is helpful to define them in terms of theories of justice with a grounding in tort law.
Theories. Tort law is commonly framed in terms of several theories of justice: procedural justice (with an emphasis on fairness, notice and transparency); distributive justice (balancing compensation, loss-spreading and efficiency concerns); retributive justice (seeking to punish and deter wrongdoing); and corrective justice (providing compensation to the victims of tortious wrongdoing). There isn’t a perfect overlap between the four sets of terms since, for example, distributive justice balances both compensation and efficiency, but it is still helpful to understand the philosophical underpinnings that attach to the 20th-century development of tort law.
Proceduraljustice focuses on the transparency and fairness of processes by which rights are created and enforced. As such, it is primarily concerned with fairness. Designing a fair and balanced process is not a guarantee of fair outcomes because parties are not equally situated before the law; decisionmakers are not perfectly impartial or incapable of error; and many laws are outdated and lag behind contemporary views of fairness. Nonetheless, our legal system stakes significant importance on making an attempt at procedural fairness.
For example, the idea of “notice” plays an important role in many tort doctrines, which is a nod to procedural justice and reflects the idea that it seems fairer to hold someone responsible when they were “on notice,” if they knew or should have known that some harm was likely to happen and still took whatever action they took.
Distributive justice concerns allocating resources and liabilities fairly based on some pre-set understanding of the right to a “fair share” of both the benefits and burdens. The values driving that distribution may change over time, by jurisdiction, or in connection with political administrations. In our era, the driving concerns behind distributive justice have primarily been economic: who can bear the costs of liability and who should bear the costs of preventing accidents given the ability of various actors to insure against injury or to internalize the expenses associated with both injury and prevention? Indeed, contemporary tort law has been strongly influenced by late 19th-century philosophers who advanced utilitarian theories of law, as well as 20th-century scholars and judges working in the law-and-economics tradition. Such theorists often seek the “cheapest cost avoider”–the entity best positioned to absorb the costs of preventing harm and compensating for it when preventions fail—so as to maximize efficiency regardless of moral culpability.
For example, the doctrine of strict liability (liability without fault) has evolved in ways that allow parties to engage in behavior that they know in advance will be risky, such as blasting with dynamite prior to construction. However, merely engaging in the action will cause them to be liable for harms they cause through their actions, which allows them to internalize the costs of precautions and to make their behavior as safe and efficient as possible. Or at least, that’s one theory of how it works.
Retributive justice is more commonly associated with criminal law, which seeks to punish wrongdoers. Tort liability is not typically defined so as to impose suffering or punishment on the wrongdoer. A tortfeasor may be liable in tort even when morally not blameworthy but merely careless. Likewise, an actor may be liable even when behaving carefully but nonetheless causing harm by taking an action to which the law applies strict liability.
In rare or egregious cases, however, courts may award punitive damages that do reflect theories of retributive justice, namely, that the wrong was so significant the wrongdoer deserves to suffer.
Corrective justice frames tort law as a form of moral or ethical obligation, structured in terms of first- and second-order duties. First-order duties specify particular behaviors (such as driving reasonably or refraining from trespass). Second-order duties arise if an actor breaches their first-order duties. Accordingly, second-order duties are duties to repair or make the injured party “whole,” thus correcting the tortfeasor’s wrongs and compensating for the losses their breach of first-order duties caused. Corrective justice is oriented around the duties owed by the defendant to those they injure because its central logic is the “making whole” of the plaintiff.
For example, most plaintiffs sue to recover compensatory damages so that they will be “repaid” for the costs they incurred in connection with the defendant’s wrongdoing.
One problem with this theory arises when injuries are irreparable; under such circumstances, tort law may still allow a victim to recover, thus broadening the right of recovery to the suffering caused by the injury even when the harm is irreparable, that is, something that cannot be “corrected.” It is also worth noting that the very idea of “wholeness,” when applied to the body, hints at an ableist understanding of selfhood. Wholeness, of course, is not simply a literal reference to body parts; it applies to compensation for pain and suffering and medical bills and many other ways in which catastrophic injury can derail and burden one’s regular way of life. Hence it is a good idea to keep the literal and figurative uses of “wholeness” conceptually distinct.
A related theory of tort law is that of civil recourse theory: when a person suffers a particular kind of harm, they have a right to bring a civil action against the one who harmed them and seek recovery. Yet unlike corrective justice, the duty to repair does not justify civil recourse theory. Rather, the individual whose right has been invaded merely has a right of recourse, that is a right to have their legal claim evaluated. The distinction may seem purely academic, but it can have important implications for how we conceive of the nature and scope of the plaintiff’s possible rights and remedies. Proponents of both of these approaches commonly treat tort law as containing moral obligations (that is, they cast it in deontological terms). Tort law expresses these moral values through rules and outcomes, and efficiency concerns may be subordinated accordingly rather than prioritized the way they are in the economic account of torts.
Scholars in the field have produced elegant refinements of each of the theories briefly sketched above; whole books could be and have been dedicated to each, in fact. There are also deep disagreements about the justifications of tort law that are much elaborated elsewhere. The debate between the two dominant views of (1) “corrective justice or civil recourse” and (2) “the efficiency or utility-maximizing account” is so longstanding, in fact, it has “shown signs of being tired […] midway through its sixth decade at the very least[,]” and has prompted “increasingly prominent effort of scholars across generations to move beyond it, either by declaring a truce or by asserting a third model for the field altogether.” Nathaniel Donahue & John Fabian Witt, Tort As Private Administration, 105 Cornell L. Rev. 1093, 1094–95 (2020).
A recent synthesis of tort theories has argued that “morality and efficiency are not mutually exclusive theories of tort”; instead, “tort law operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement. In short, the goal of tort law is to construct community.” Cristina Carmody Tilley, Tort Law Inside Out, 126 Yale L.J. 1320, 1324 (2017). The approach in this casebook most resembles Tilley’s view, of tort law as a means of constructing communities, a force that is legal and social and psychological, and one which can be studied through law but also through economics, sociology, anthropology, and various theories of identity.
To learn the basic contours and doctrines of tort law you need not reconcile deeper conflicting theories, of course, but it is helpful to gain at least an introduction to the theories that are underpinning the way tort law was created, has developed, and continues to evolve. When the materials refer to these first four purposes of tort law—efficiency, compensation, fairness and deterrence—you will now have at least a preliminary sense of their origins and interconnections.
Check Your Understanding (1-1)
Question 1. A court’s opinion includes the following reasoning: “[T]he imposition of liability should deter negligent conduct by creating incentives to minimize the risks and costs of accidents…. If negligence is the failure to take precautions that cost less than the damage wrought by the ensuing accident [c], it would be unfair and socially inefficient to assign liability for harm that no reasonably-undertaken precaution could have avoided.” People Exp. Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 266 (1985)
Which of the four forms of justice does it most seem to reflect?
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A More Inclusive Approach to Tort Law
The classic accounts of tort law do not typically lay out racial and social justice as a goal, per se, the way efficiency, compensation, fairness and deterrence are routinely cited as the core reasons for the system. One reason for this is that tort law has been treated as though it is neutral in application, perhaps as a concession to anti-discrimination laws and nationwide efforts to make the law more equitable or at least constitutional. Indeed, in the modern era, courts adjudicating torts disputes often explicitly sought to proceed as though the law were “color blind” and gender-neutral, preferring to not take any categorical differences into account. Thus even doctrines that had once been helpful to some vulnerable groups weakened: “[g]ender and race have disappeared from the face of tort law. The old doctrines that explicitly limited recovery exclusively to one gender have been either abolished or extended on a gender-neutral basis.” Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa. L. Rev. 463 (1998)
In the last two decades, a growing volume of scholarship considers the intersection of civil rights and tort law and builds on various philosophical theories of law to consider how factors like race, gender, social class, ability and sexual orientation may all play into the tort system’s rights and duties. Yet casebooks are typically slow to take scholarly changes into account. This casebook’s approach to tort law deliberately frames social justice as one of tort law’s goals, even if it does so aspirationally, building on the work of scholars who have called for a more inclusive and sociologically informed account of tort law. If we take seriously the notion that tort law exists to remedy civil wrongs which the law has defined as such, it seems important that we define those wrongs in terms of what we know in our present moment, based on sociological, psychological, cultural and empirical evidence.
In the 21st century, we know that many laws fall with disparate impact on vulnerable communities and individuals. That’s why this book begins with the premise that tort law can be envisioned as a mechanism for providing greater access to civil justice or a means of perpetuating civil injustice. In practice, the law might land somewhere in between those two binary choices but conceptualizing it in this way from the start can provide a capacious and progressive vision toward which to advance. Only by understanding how tort law “works,” when it fails, and what it means for it to “fail” can we collectively work towards improving the system. Readers of the book do not have to share the same definitions of what it means for laws to work or fail; nor need they agree on what it might mean to improve the system. But engaging in dialogue on those questions while you’re learning substantive doctrines will greatly enrich your understanding of the law and deepen your ability to analyze and apply it. It may also make the experience of learning the law more fun and rewarding. That’s the hope, anyway.
The cases selected for our discussion are designed to give you a sample of the kinds of wrongdoing tort law does (and does not) redress, as well as the kinds of legal and policy considerations courts use in the course of their adjudication. They are also selected to encourage you to think about the balance of rights and duties in the world; tort law is relational. A person has a right, in relation to another person, to be free from the foreseeable harms that second person would carelessly cause to happen to the first. Put another way, that second person has a duty to take reasonable precautions to avoid causing foreseeable harms to the first person (and to others who could be harmed). That sounds easy enough, in the abstract, and it’s often cited as a first-order principle: where the law creates a right, the law also creates a duty. But it is often not all that clear what that actually means as applied to facts in the world, which is a complicated, messy place in which human actors don’t have perfect foresight and often make mistakes. This is one of the central challenges courts face as they attempt to strike a reasonable balance and develop and apply fair rules over time.
Challenging Subject Matter & Studying Tort Law
Because tort law is so situated in the “real world,” most cases focus heavily on factual questions with sometimes quite complicated technical issues. You might find yourself having to pay close attention to map out the facts or to draw a diagram for yourself so that you can understand how a court describes, for instance, the angle of collision between a train and a car or pedestrian. Likewise, you may find yourself struggling to make sense of the theories of causation when a victim is seeking relief from harm that ensued from a chain of events, or from a combination of multiple factors. Sometimes tort law is quite gory, and if there is any law school class that needs a trigger warning, it really might be this one: there will be train accidents and severed limbs; parents claiming emotional distress after watching their child suffer in agony (perhaps even die before their eyes); there will be fires, and burns, and medical procedures gone wrong that might make you squirm with discomfort just reading the facts. There are also dignitary and privacy harms that can be upsetting whether the conduct in question features sexist, racist, ableist, or otherwise hateful language or actions, or whether the court itself uses terms or rhetoric that are dismayingly biased even as it speaks in the voice of our country’s justice system.
This casebook’s selections feature some challenging subject matter. The choice to center issues of racial and social justice stems from the belief that sweeping things under the collective rug—or pretending that our civil justice system isn’t sometimes a part of the problem—is a recipe for moving backwards in terms of greater equity in our country, rather than moving forwards. However we define “moving forwards,” that’s the better direction to conceptualize as we bend collectively towards justice.
The Textbook’s Terminology
There are three terms you need to understand from the outset, as they are critical to the perspectives on tort law offered here and they’ll be used throughout this casebook. When you read a case, you’ll often be asked what it holds. It’s critical to be able to distinguish the parts of an opinion that are most meaningful, including which facts, if altered, could affect the outcome. It’s also important that you be able to characterize the case analytically, that is, descriptively, and evaluate its reasoning. I believe it’s also helpful to be able to evaluate the case in terms of how it makes you feel, that is, to understand it intuitively. Identifying your own intuitions about the law can help you in the identity formation that takes place in law school as you’re refining and revising your values and ideas about the law. You may find yourself grudgingly agreeing that an outcome that seems correct as a matter of policy, that is, an outcome that seems normatively correct, nonetheless feels dissatisfying or unfair. In some cases, your intuition may point in one direction while your normative opinion points in another. A descriptive approach to the law seeks to interpret or explain existing law while a normative approach to the law seeks to critique, justify or reform existing law. (There are, of course, some overlaps between the various approaches but as a starting proposition, it is important to try to maintain a distinction.)
You also need to be able to analyze and describe the law dispassionately, whatever you feel about it intuitively or normatively. It may seem “touchy-feely” to ask you about your intuitions and not all law professors will do so. However, being able to acknowledge and validate your own intuitions and disaggregate them from your analysis is an incredibly powerful way to hone your analytical skills. You need to be able to answer questions about the black-letter law descriptively and accurately (to pass the bar, to predict likely outcomes and counsel clients). And you ought to be able to think about the normative implications of the law as you learn it; that’s what drives home how much your legal education matters and what differentiates law school from a bar-exam preparation class. Tuning in to your intuitions can also make it easier to manage the sometimes-challenging subject matter you’ll encounter in tort law. We are heading into the law of accidents and intentional harms and while it will often be lively, it is occasionally tragic or bloody or dehumanizing or all of the above.
Here’s a summary of these three approaches to discussing the law:
• Intuitive:how youfeel about the facts or ruling; this way of approaching cases is familiar, even without a legal education
• Descriptive: an accurate analytical statement of what the law is or does in a given case, which requires learning how to read a judicial opinion and may require understanding the context or case law simply to identify the correct legal rule
• Normative: a statement of what the law ought to be, in your opinion, and why based on policy factors and legal considerations you’ll learn and gain practice discussing throughout the course
Not all professors use exactly the same terminology or emphasize these as centrally but they will all expect you to be able to shed intuitive modes of thinking and state the rule of a case descriptively without conflating your normative evaluations at the same time. Law school requires that you routinely differentiate the “is” from the “ought,” in other words. Whatever the terms anyone uses, learning to distinguish between intuitive, descriptive and normative modes of analysis is critical to your success in law school, especially in your first year as you are learning how to “think like a lawyer.”
Differentiating Negligence, Strict Liability and Intentional Torts
Most torts casebooks focus on either negligence or intentional torts as a means of introducing students to torts. Intentional torts are typically considered to be “easier” to understand because they are a bit more black-and-white whereas negligence is an area with a lot of “gray” or conceptually less crisp doctrines. Even this framing, however, may reflect the overemphasis on negligence that has historically informed legal education. There can be considerable complexity in aspects of the intentional torts even though it’s true that they have qualities that can make them easier to teach and learn at a superficial level.
Our approach in this first module gives you a cross-cutting look at the three primary regimes of tort law all at once: negligence (fault-based), intentional torts (intent-based) and strict liability torts (no-fault based). This approach helps you gain an overview view of what it is you’re going to be learning to do with what you learn.
One of the things law school most trains you to do is apply your knowledge effectively. It’s not just a matter of gaining greater knowledge but learning how to apply it judiciously. Another thing law school does is train your brain to sort things quickly. You’re going to be asked over and over again to take a messy fact pattern and distill it down to a rule or prediction. How you distill it down in torts is partly a function of what you know about these three systems and their purposes and limitations. When you hear about issue-spotting exercises, for example, you’re being asked to learn rules and apply them to facts quickly. The speed isn’t the point as much as gaining sufficient practice and comfort so that you can use this skill in real-time, as though you were in court or speaking with a client or working on a deadline under pressure. When you see a torts fact pattern, you will learn automatically to begin to sort things into buckets, by regime, by doctrines you know, and by other factors (such as jurisdiction and available defenses). This introductory approach gets you to start thinking like a lawyer by learning to spot and sort different kinds of torts regimes from each other.
You may understandably be anxious to learn the individual elements of each of the torts and get into the doctrinal weeds. However, by approaching the three regimes in this way, you will gain altitude over the whole ecosystem before we drop down into the forest and start studying the trees up close. You will learn why we use different regimes, what the impact of that decision is from a policy perspective and why the regimes require different standards of culpability and different evidence. You will also see commonality and differences in the kinds of interests protected and the kinds of conduct protected against. Two main questions guide our inquiry throughout this first module:
What sorts of conduct does the law seek to regulate here, and why?
What sorts of interest does the law seek to protect here, and why?
We begin with negligence, which is the core area for most 1L torts courses.
1. Echoing the earlier distinctions between civil and criminal law, note that civil assault and battery are torts, dealt with in private law, which may allow the victim to seek money damage for their harms or to stop future harms by the assailant. Criminal assault and battery are crimes, dealt with in public law, which may allow the state or government to prosecute and penalize the assailant. It’s important to keep these distinct because the elements necessary to prove that the conduct was criminal differ from the inquiry into whether the conduct was tortious. Additionally, the remedies and the burden of proof differ. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/01%3A_Introduction_to_Tort_Law/1.01%3A_A_21st-Century_Overview_of_Tort_Law.txt |
One significant subset of tort law concerns negligence, which usually consists of accidental or careless wrongdoing that results in harm. Negligence is thus largely concerned with injuries or damage inflicted through failure to take certain ordinary precautions. Negligence must be distinguished from the two other regimes you will study. Intentional torts concern tortious behavior that meets a requisite level of intentionality whereas negligence refers to wrongdoing better characterized as accidental or careless than intentional. The domain of strict liability law attaches liability categorically to certain behaviors, no matter whether the actor was at fault in any way. What defines the domain of strict liability is whether a legislature or court has decided that a particular behavior belongs in this category. Defining what it means “to be at fault,” instead, falls to negligence law.
The test for determining negligence is whether or not the parties’ conduct was “reasonable” under the circumstances. This is known as the “reasonable person” standard. Tort law does not anticipate that actors will behave perfectly, or even expect that they will try to do so. The theory is that it would be costly and unfair to require that people move through the world never causing any harm; if people were liable for every possible harm they might cause, they might stop doing many things that are socially valuable but nonetheless involve some amount of risk. Instead, tort law imposes a reasonableness standard which depends on the judge or jury’s best retrospective assessment of how a “reasonable person” would have behaved under the same circumstances.
Over time, negligence law has proven to be adaptive to social, economic and technological change, since the standard—whether the conduct that produced injury was reasonable under the circumstances—can change over time and the legal outcome usually depends on the facts of the specific case. Reasonableness is highly constructed, of course; what it means may well be expressed as a function of ability, class, gender, sexual orientation and race. Yet, with few exceptions, tort law uses a “one-size-fits-all” approach to reasonableness.
The standard negligence action, which attempts to determine whether a defendant’s conduct was unreasonable and caused harm to the plaintiff, can be expressed as four elements, which are bolded in the next sentence. For a plaintiff to win a negligence claim, the defendant must have breached their duty of due care, thus causing the plaintiff’s injuries. The injuries must also be of the kind that tort recognizes, and there are some limitations on the plaintiff’s behavior that vary somewhat by jurisdiction and that you will learn about later in your course.
Note that this standard is applied to the defendant’s conduct in determining their potential liability for negligence. However, it is also applied to the plaintiff’s conduct; in an earlier era of tort law, if the plaintiff’s conduct was unreasonable (or “contributorily negligent”), the plaintiff’s tort lawsuit would fail. In the past forty years, legal reforms changed this default. Now only a handful of states bar recovery in cases involving “contributory negligence”, that is, cases in which the plaintiff’s conduct contributed to their injuries. All the other states have adopted a “comparative fault” rule that considers the reasonableness of both the defendant’s and plaintiff’s actions and may offset liability and damages accordingly.
Summed up, the standard elements of negligence are: duty, breach, causation, and damages. In some jurisdictions (and casebooks, outlines and other learning materials you may encounter), causation is broken into two prongs: causation in fact (sometimes referred to as “but-for causation” due to the most common test applied) and legal causation (commonly called “proximate cause”). This is why you will sometimes see the test for negligence listing five rather than four elements. When you cover negligence later in your course, you will devote multiple weeks to it, so don’t worry about the detailed aspects of these elements for now. Instead, keep aiming to develop a high-level view that allows you to understand the distinctions between the regimes in tort law and to look for what differentiates negligence (fault-based liability), strict liability (no-fault liability) and the intentional torts (intent-based liability).
Questions for the Readings and Areas of Focus
As you read the first three cases, please keep the following questions in mind:
• Who or what, if anyone or anything, was at fault?
• What could have—or should have—been done to prevent the harm, if anything? And by whom?
• In what ways is negligence law capable of change over time?
• Who is “the reasonable person”?
(149 Wash. 109)
Plaintiffs [Edwin F. Davison and wife] instituted this action against Snohomish county as defendant, seeking to recover damages alleged to have been suffered by them as the result of the negligence of defendant in the construction and maintenance of the elevated approach to a bridge known as the Bascule bridge across Ebey Slough. In the southwesterly approach to this bridge there is a right angle turn towards the south just *110 easterly of the slough, and at this point the causeway or approach to the bridge is at quite an elevation above the ground level. The bridge itself is approximately 18 feet wide; the approach leading to the bridge proper, at the curve just to the east of the bridge, increases in width to a maximum of 30.9 feet, narrowing again to 18 feet at the end of the turn.
At about 8 o’clock in the evening of November 11, 1926, plaintiffs were driving their Ford automobile toward the city of Snohomish, and proceeded to cross the bridge from west to east at a low rate of speed. Plaintiff Edwin F. Davison was driving, and, as the car rounded the curve to the east of the slough, he lost control, the car skidded, struck the railing on the east or outer edge of the approach just around the curve, broke through the railing, and, with plaintiffs, fell to the ground. Both plaintiffs suffered severe and painful injuries, and the automobile was wrecked; for all of which damage plaintiffs prayed for judgment in a large amount.
Defendant answered plaintiffs’ complaint, denying all the allegations of negligence on its part and affirmatively pleading contributory negligence on the part of plaintiffs. The action came on regularly for trial, and resulted in a verdict in plaintiffs’ favor in the sum of \$2,500. Defendant seasonably moved for judgment in its favor notwithstanding the verdict, or, in the alternative, for a new trial. Both of these motions were denied by the trial court, which thereupon entered judgment upon the verdict, from which judgment defendant appeals. There is no dispute as to the reasonableness of the amount of the verdict, if appellant is liable at all; the sole question raised being the liability of the county for any damages whatsoever.
Respondents allege that appellant was negligent in *111 the construction and maintenance of the approach to the bridge, in that, at the time of the accident, the railing through which respondents’ car broke was insufficient to act as a guard; that the posts which supported the same were decayed; that the floor or deck of the approach was so constructed as to slope out and down from the center of the curve to the outer edge, and that appellant, prior to the accident, had been repairing a road near the west approach of the bridge and in doing this work hauled over the bridge from the east a considerable quantity of dirt, a portion of which was scattered on and over the approach; that on November 11, 1926, considerable rain fell, and that, as a result, the deck of the approach, being covered with wet dirt, became very slippery, and, coupled with the other conditions alleged, constituted a menace to motor vehicle traffic.
Respondents urge that the combined effect of the different matters of which they complain produced a dangerous situation, and that the suffering of such a condition to exist constituted negligence on the part of appellant and renders appellant liable for the damages suffered by respondents. Appellant contends that respondents failed to prove negligence on the part of appellant, and that its motion for judgment notwithstanding the verdict should have been granted. [***]
It is undoubtedly the law that it is the duty of a municipality to keep its bridges in a reasonably safe condition for travel. [c] On the other hand, a municipality is not an insurer of the safety of everyone who uses its thoroughfares; nor is it required to *112 keep the same in such a condition that accidents cannot possibly happen upon them. As was stated by this court in Grass v. City of Seattle, 100 Wash. 542, discussing an accident to a pedestrian which it was claimed was caused by a drop in a sidewalk ranging from 2 1/2 inches at one side of the walk to nothing at the other side:
‘Manifestly, it seems to us, a city cannot be held negligent for suffering to remain in a sidewalk a defect so inconsequential as this one was shown to be. A city is not an insurer of the personal safety of every one who uses its public walks. It owes no duty to keep them in such repair that accidents cannot possibly happen upon them. Its duty in this respect is done when it keeps them reasonably safe for use-safe for those who use them in the exercise of ordinary care-and we cannot but conclude that this one was thus reasonably safe.’
Respondents admitted that they were thoroughly familiar with the bridge and its approaches, having driven over the same many times prior to the day of the accident, and they consequently were fully advised as to the existence and location of the curve in the approach, the width of the bridge, and the approaches and the different grades therein.
As respondents rely upon three several elements, each of which they claim resulted from the negligence of appellant, all three uniting to render the bridge unsafe and to cause the accident which is the basis of this action, it is necessary to analyze these elements of alleged negligence: First, the insufficiency of the railing or guard to prevent respondents’ automobile from skidding off the approach; second, the fact that the deck of the approach, at the curve, sloped downward toward the outer edge, which had a tendency to cause the automobile to slide in that direction; and, third, the fact that dirt was scattered over the deck *113 of the approach, which, being wet by the rain, caused the deck to be more slippery than it would have been had no dirt been scattered over it.
The use of the automobile as a means of transportation of passengers and freight has, during recent years, caused certain changes in the law governing the liability of municipalities in respect to the protection of their roads by railings or guards. A few years ago, when people traveled either on foot or by horse-drawn vehicles, a guard rail could, to a considerable extent, actually prevent pedestrians or animals drawing vehicles from accidentally leaving the roadbed, but, as a practical proposition, municipalities cannot be required to protect long stretches of roadway with railings or guards capable of preventing an automobile, moving at a rapid rate, from leaving the road if the car be in any way deflected from the roadway proper and propelled against the railing. As was said by this court in the case of Leber v. King County, 69 Wash. 134:
‘Roads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the country, would be to put a burden upon the public that it could not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones.’
This principle applies with special force to elevated causeways constructed of wood, such as the approach from which respondents’ automobile fell, as upon such a structure the railing can be anchored or secured only to the deck of the causeway. Upon the ground, in situations of special danger, strength can be given to a guard or railing by driving posts into the earth, and *114 a guard of any desired strength can be constructed in that manner. A concrete viaduct can be constructed with side walls of considerable resisting power; but the same degree of protection cannot be expected from a guard or railing along the side of an elevated frame causeway or viaduct. Respondents introduced some testimony to that effect that the posts which supported the railing were, to some extent, rotted. We have carefully considered this testimony, and, for the purposes of this opinion, assume that it was true; but we still do not think that it was sufficient to take the case to the jury upon the question of appellant’s negligence in connection with the condition of the railing at the time of the accident.
In regard to the second element of alleged negligence urged by respondents, the fact that, at the curve in the approach, the deck sloped slightly downward towards its outer edge, we are of the opinion that, in view of the fact that the slope was so slight as not to be noticeable to the eye, amounting to no more than a small fraction over an inch to 18 feet horizontal measurement across the deck, or from 2 3/4 inches to 1 1/8 inches to the entire width of the deck, it is our opinion that the maintenance of the approach in this condition did not constitute such negligence on the part of appellant as would render appellant liable to respondents in this action. The Supreme Court of Michigan, in the case of Perkins v. Delaware Township, 113 Mich. 377, held, as matter of law, that the maintenance of a bridge, 16 feet wide, which had no railings at all, one inch lower on one side than the other, was not negligence on the part of the township. While the facts of the Michigan case differ considerably from the situation now before us, the opinion is *115 of value in aiding us in the determination of the case at bar.
Referring to the third element of negligence relied upon by respondents, the fact that some dirt was scattered over the deck of the approach, and that due to the fact that considerable rain had fallen and was still falling at the time of the accident, the wet dirt caused the deck to be unusually slippery, we are unable to find any testimony in the record which would justify the submission of this element of alleged negligence to the jury. Appellant would not be liable because of any ordinary accumulation of dirt or similar matter upon the approach, unless a dangerous condition were permitted to exist for such a period of time as would imply, in law, notice to appellant of the fact that its roadway was unsafe, and it should further appear that appellant had been negligent in not remedying the condition within a reasonable time. Respondents contend in this case that the dirt upon the roadway had been scattered by appellant’s employees within a very short time prior to the accident. Giving the testimony upon this point the construction most favorable to respondents’ contention, we feel compelled to hold that, as matter of law, there was no testimony sufficient to go to the jury upon this alleged element of appellant’s negligence.
[***] Respondents rely upon the case of Beach v. City of Seattle, 85 Wash. 379, in which this court upheld a verdict against the municipality, based upon its negligence in leaving unguarded, poorly lighted, and without danger signals, a blind street end at the edge of a gulch. Examination of the opinion in this case indicates that the decision was based largely upon the failure of the city to place a red light or other danger signal at the street end, or to place lights in the vicinity which would disclose the dangerous situation. The city had also neglected to construct any barrier whatsoever which might serve as a visible warning of danger, as well as an obstruction. The physical facts which resulted in injury to the plaintiff in this action constituted almost an invitation to the driver of an automobile to continue along the street which was *117 broken by the deep gulch; there being nothing to suggest danger. [***]
The judgment is reversed, with directions to dismiss the action.
Note 1. What is the holding in this case? In layperson’s terms, who “wins” and what do they win? In legal terms, why is that significant?
Note 2. What does it tell you if someone is a petitioner versus a respondent? (Or an appellant versus an appellee?)
Note 3. On what does the court base its reasoning, in your view? Is it focused primarily on the capacity—or incapacity—of engineering to prevent accidents like the one at issue? Or does it emphasize policy reasons? Does it focus on the plaintiff’s conduct? Does it follow precedential authority in a way that disposes of the case, that is, compels the outcome?
Note 4. This case refers to “Ebey Slough,” in Washington state, an area named for a white settler in the region whose relationship to the indigenous people of the Tulalip tribe was sufficiently contested that they made a bid to change the name in 2012. Ultimately the proposed name change failed and Ebey Slough remains on the map as such. As we read older cases, however, it’s a good idea to be attentive to the way meanings change over time with revisions of the narratives of our nation’s history and shifts in cultural awareness. For more, see: https://www.heraldnet.com/news/should-ebey-slough-be-renamed-some-say-yes/
Check Your Understanding (1-2)
Question 1. True or false: The court in Davison believed it did not have the authority to decide whether a municipality could be liable for negligent maintenance of bridges.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2.Davison cites earlier case law approvingly, including this dictum it offers to support its reasoning:
‘Roads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the country, would be to put a burden upon the public that it could not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones.’
Which of tort law’s primary purposes does this language most serve (or most seem to support)?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
(74 Wash.2d 881) (Rehearing Denied Jan. 10. 1969)
The trial court in granting summary judgment of dismissal of the plaintiff’s action against the city of Tacoma and the Northern Pacific Railway Company, commented, ‘Maybe the supreme court will think differently.’ It does!
The end result may be the same at the conclusion of a jury trial, for a jury may reach the same conclusion as the trial court: That neither defendant failed in any duty owed to the plaintiff which could have prevented the injuries which he sustained. Nevertheless, we are satisfied that there are issues of fact which should be decided by a jury.
The plaintiff had driven his automobile up an inclined roadway where it makes a 90o left turn to cross a bridge over the Northern Pacific Railway tracks at a height *882 of some 35 feet above the ground. Unknown to the plaintiff, the surface of the roadway at the place where this turn occurs was slippery (there were statements that it was icy), and instead of his car making the turn, it continued straight ahead over a wooden curb, across a 6-foot sidewalk and through a guardrail, plunging to the ground below.
The plaintiff contends that the defendants knew that, at the temperatures then existing, the roadway at this point might be icy, and that no adequate warning of the potentially dangerous situation was given. The defendants[1] respond that plaintiff was familiar with the roadway and that a posted speed of 10 miles per hour was ample notice that more than ordinary care was required. (The defendants contend that had plaintiff obeyed that speed limit his car would not have gone over the curb, across the sidewalk and through the guardrail.)
We said in Barton v. King County, 18 Wash.2d 573, 576, 139 P.2d 1019, 1021, after reviewing a number of our cases:
The gist of the decisions in these cases *** is that the municipality may be chargeable with negligence for failure to maintain warning signs or barriers if the situation along the highway is inherently dangerous or of such character as to mislead a traveler exercising reasonable care.
We express no view as to the merits of the present controversy; we are simply saying: (1) that a jury could find the situation at the locus in quo was inherently dangerous, or of such a character as to have misled a traveler exercising reasonable care; and (2) if the jury should so find, then the adequacy of the warnings given and of the barriers (curbs and guardrails) maintained would likewise be a jury question and not an issue to be determined on summary judgment.
The plaintiff urges that the posted speed of 10 miles per hour gave no notice of slippery or icy conditions; he urges further that instead of a 10 or 12-inch curb, as on the rest *883 of the incline, constant hitting of the curb where his car ‘climbed’ it had ‘chewed’ it down to an effective height of only 3 or 4 inches; and that his car, at its speed of 10 miles an hour, would not have gone over an adequate curb.
The plaintiff contends that a car traveling 10 miles an hour or less can be successfully halted by relatively low-cost barriers, and that the history of similar accidents at this particular point indicated a need for more substantial barriers. The defendants respond that Davison v. Snohomish County, 149 Wash. 109, 270 P. 422 (1928), held that a municipality is under no duty to erect a guardrail of sufficient strength to keep an automobile from crashing through.
The precise holding in that case was that a municipality is under no duty to erect barriers sufficient to prevent automobiles traveling at a high rate of speed from crashing through. Our disposition of the present case is not intended to overrule that holding. It is obvious that the erection of barriers sufficient to prevent a speeding vehicle from crashing through could result in injuries as serious as those that would be suffered if the vehicle were to crash through a weaker barrier and collide with whatever lay beyond. Such would not be the case where a barrier is erected to stop slow-moving vehicles from plunging off a bridge 35 feet above the ground.
The reasoning in Davison [c] was based on the impracticality as a matter of engineering and on prohibitive costs. We do not consider the ideas of the court, expressed 40 years ago, as necessarily authoritative on the engineering and financial phases of the same problem today. We are satisfied that the parties should have the opportunity of presenting their evidence as to the practicality (cost wise or otherwise) of guardrails or barriers on dangerous or misleading roadways to stop slow-moving vehicles.
We would in no way derogate from the summary judgment as a proper and valuable instrument for preventing useless trials; but it should not be used, as in the present case, where a real doubt exists as to decisive factual issues.
*884 The summary judgment appealed from is set aside with directions to proceed as though it had been denied.
Note 1. Revisit your statement of the holding in Davison. What do you notice about how Bartlett frames that earlier case?
Note 2. What is the holding in this case? Who prevails, and what benefit do they receive as a result?
Note 3. To what extent is the plaintiff’s behavior or knowledge relevant in Davison and Bartlett? What accounts for that, in your view?
In the following opportunity to assess your own understanding, be aware that you are gaining an introduction to the elements of negligence law. Reading the questions and answers will help you deepen your own understanding as well as confirming what you have already understood. The questions are designed to teach you, in other words, in addition to reinforcing what you have learned.
Reflect On Your Understanding – Essay: Bartlett v. Northern Pac. Ry. Co. & City of Tacoma
Essay: Identify two ways in which Bartlett distinguishes its ruling from Davison and identify reasons it supplies for doing so.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Hypothetical: Introducing Negligence and the Reasonable Person Standard
In law school, when you are instructed in “the law” (or “the black letter law”), you are usually learning to read statutes or distilling rules from the common law. But in legal practice, for litigators at least, the black letter law is often represented by jury instructions.
Jury “instructions” are the words read to a jury prior to their deliberation. In contemporary trials, such instructions may sometimes also be provided in print or on a screen so that juries can refer back to them when deliberating. The instructions are also sometimes referred to as the “charge,” as in “charging” or “instructing” the jury with the proper law to apply. These instructions include standard messages about the rules of evidence that are the same from case to case, as well as more precise statements of the law tailored to the facts of the case.
Traditionally, jury instructions have not frequently been taught in law school or featured centrally in legal casebooks. This may be partly due to the fact that, at least traditionally in the 20th century, many law professors had no practice experience. In addition, there has been a growing consensus that trials are less and less common (and thus less important). Yet jury instructions continue to play an important role in the contemporary legal world. Trial lawyers tackling new litigation often start by looking at the existing jury instructions in the relevant area of law so as to understand how they will need to frame the theory of the case. A given jurisdiction may maintain and update a set of “model” or “pattern jury instructions” which act as templates that the parties can adapt. The substance of these instructions is often hotly contested since many lawyers believe that the way the law is framed and articulated for the jury can play a key part in persuading the jury. (Usually, a case goes to full trial with a jury only if a significant part of the dispute is riding on some factual aspect. Otherwise, a court can resolve issues as a matter of law and a jury may never be needed.) Even in cases that never go to trial, however, the jury instructions provide guidelines for how both sides will shape their arguments and may play a role in forcing settlement, too.
In any event, when considering the substantive law on a given topic, if you inquire into the relevant jury instruction you are likely to be thinking like a litigator. The next hypothetical revisits negligence and asks you to apply a jury instruction to a fact pattern.
Building-Crashing Driver Hypothetical #1: A driver crashed into a building. This accident caused damage to the building property, including breaking the glass door and merchandise inside a bike shop on the premises.
The bike shop owner was inside, and he sustained injuries because of the accident. The bike shop owner asks you, a practicing attorney, whether he can sue the driver. The facts are deliberately simplified at this point, and you don’t yet have the elements of various causes of action, but work from your common sense and what you know so far including your present understanding of the elements of negligence: duty, breach, causation and harm.
Step 1. What do you want to know? What questions would you ask?
Step 2. Now assume that this dispute proceeded to a jury trial and that the judge would instruct the jury to determine negligence using the following standard:
Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care.
Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.
What would you want to know if you were a jury tasked with this determination?
One significant subset of tort law concerns negligence, or accidental or careless wrongdoing that results in harm. The test for determining negligence is whether or not the parties’ conduct was “reasonable” under the circumstances. This is known as the “reasonable person” standard. Tort law does not anticipate that actors will behave perfectly, or even expect that they will try to do so. The theory is that it would be costly and unfair to require that people move through the world never causing any harm; if people were liable for every possible harm they might cause, they might stop doing many things that are socially valuable but involve some amount of risk. Instead, tort law imposes a reasonableness standard. The outcome of this determination depends on the judge or jury’s best retrospective guess of how a “reasonable person” would have behaved under the same circumstances.
Note that this standard is applied to the defendant’s conduct in determining their potential liability for negligence. However, it is also applied to the plaintiff’s conduct; in an earlier era of tort law, if the plaintiff’s conduct was unreasonable (or “contributorily negligent”), the plaintiff’s tort lawsuit would fail. In the past forty years, legal reforms changed this default. Now only a handful of states bar recovery in cases in which the plaintiff’s conduct contributed to their injuries. All the other states have adopted a “comparative fault” rule that considers the reasonableness of both the defendant’s and plaintiff’s actions and may offset liability and damages accordingly.
With that introduction to the reasonable person standard, let us turn to a nineteenth-century negligence case to explore its application in early American tort law.
As you read the court’s opinion in that appeal, consider the core question: what would a reasonable person have done under these circumstances? What would a reasonable town have done with respect to its causeway?
(29 Conn. 204)
[***] An inlet from Connecticut river, called the cove, runs up into the mainland in the town of Glastenbury. [***] [A] highway had been laid through this cove to the Wethersfield ferry, and a causeway constructed thereon for the accommodation of the public travel. [***] The water in the cove, along the sides of the causeway, was ordinarily about one foot deep, but in times of freshet it frequently rose so high as to submerge the causeway, and render its passage perilous and sometimes impossible. [***] The deceased and her companion, Mrs. Clarinda Fox, had for several years resided about half a mile from the east end of the causeway, and one of them, at least, had repeatedly crossed it.
About three o’clock in the afternoon of the 6th of August, 1856, having procured a horse and wagon, they started to go over the causeway, from the main land to the ferry. There was a freshet in the river, and the water had in consequence risen in the cove so as to cover the causeway, was rising rapidly, and there was a strong wind.
The deceased and her companion stopped in front of the house of Mrs. French, a short distance from the causeway, but in full view of it, and there observed that the water was running over the causeway, and that the wind was high. The deceased inquired of Mrs. French whether people crossed there that day, to which Mrs. French replied that they had, but that she had seen no one pass that way that afternoon, and that she had not before noticed that the water was over the road. The deceased then inquired of Mrs. French if she would dare to cross. Mrs. French replied that she would be afraid, unless she had a very gentle horse; and the deceased remarked that their horse was perfectly gentle. We deem this conversation of some importance, because it shows that, while these ladies were encouraged to go on, by the information that others had passed before them, and by the fact that they had a gentle horse, they were not betrayed into their perilous undertaking, either by the apparent safety of the road, or by their own inattention to its condition, until it was too late to avoid it altogether; and that when they were entirely beyond the reach of danger, and could, with but little inconvenience, have avoided it, they deliberately determined to encounter and risk whatever of it might beset their way.
As they approached the causeway, the cove and the condition of the water in it could not have escaped their notice. They saw [***] that the causeway was entirely submerged, that a swift and strong current of turbid water *207 was passing over it, that there was no rail or visible object of any kind, above the surface of the water, on the sides of the causeway, by which they could be protected or guided in their course, and the depth of the water it was obviously impossible for them, before they went into it, with any degree of accuracy, to calculate or determine. East of the bridge, the water rose to the hubs of the fore wheels of their wagon, but they reached the bridge in safety. The bridge was raised about two feet and a half above the level of the causeway.
On the bridge they stopped, noticed and remarked upon the height of the water and the rapidity of its current, and felt some degree of alarm, but concluded to proceed. As they drove from the bridge into the water on the west side of it, they began to apprehend the extent of their danger, and became frightened; the horse stopped; they urged him forward with the whip, and becoming more frightened they probably attempted to turn around, and went off the causeway, nearly at a right angle with it, into the deep water on the north side. These facts seem to us fully proved by the evidence. And we think that in driving upon the causeway at all, even easterly of the bridge, submerged as they saw it was, and with nothing visible above the surface of the water to indicate its true location, these ladies disregarded the dictates of ordinary prudence and discretion.
And surely, when upon the bridge, in full view of the scene before them, and aware, as they must have been, of the accumulated and increasing dangers in their path, and … with the knowledge which they then possessed of the impossibility of seeing the road, because of the turbid condition and ruffled surface of the water, and the rapidity of its current, they determined to proceed, and drove into the stream, their conduct was far below the standard of ordinary prudence. [***]
The bridge was twenty-four feet long, and fourteen feet wide between the railings. On this bridge they were safe; and if they could not, unaided, have turned around and retraced their steps, they could, and should have remained where they *208 were, until relieved from their unpleasant but not perilous situation. And again, when, after they had entered the water west of the bridge, their horse, true to the instincts of his noble nature, faltered, and stood still, they should have heeded his kindly admonition, and there waited for assistance and deliverance, instead of forcing the animal forward to his fate. The boat, by means of which one of them was rescued, with two boys in it, was sailing close at hand; a wagon, with two men in it, was approaching the causeway from the west; and the residence of Mrs. French, with whom they had just been conversing, was within the reach of their voices. Their outcry would have brought almost immediate relief.
In view of all the facts and circumstances, [***] we feel constrained to say, that the attempt of these ladies to pass over this causeway [***] was an act of rashness, which, upon the well settled principles of law applicable in cases of this character, bars all claims in their behalf for damages from the town. We think no person of ordinary discretion in their circumstances, and exercising ordinary prudence and discretion, would have made such attempt.
We are not unmindful of the fact urged upon our attention by the plaintiff’s counsel, that these travelers were females. And in that fact, and in the timidity, inexperience, and want of skill which it implies, we can find an explanation of their injudicious and fatal attempt to turn around in the water, but no reason or excuse for the recklessness of their conduct in driving into it. [***] The inquiry whether, in the particular case, the party conducted with ordinary care or prudence, always involves the consideration of the difficulties and obstacles to be overcome, the party’s knowledge of their existence, and his means and power to overcome them. And if men of ordinary prudence and discretion would regard the ability of the party inadequate *209 for the purpose, without hazard or danger, the risk should not be assumed. [***]
In order to entitle the plaintiff to a verdict, he was bound to show, affirmatively, not only the culpable negligence of the town, but also that the decedent herself conducted with ordinary prudence and discretion. [***] The application of this settled rule of law we suppose the jury, from inadvertence, or some other cause, must have failed to make, and finding the negligence of the town, must have decided to charge it with all the consequences of the accident, regardless of the co-operating carelessness of the decedent; which, in our judgment, was distinctly shown by the evidence, and completely established the defense. We think a new trial should be granted.
Note 1. Do you agree with the court’s determination on these facts, that “no person of ordinary discretion in their circumstances, and exercising ordinary prudence and discretion, would have made such attempt”? How do you explain your reasoning? Why do you think the court relays the conversation the travelers had with Mrs. French, who seemed to provide evidence that the road might be passable? Most of us have not faced this exact circumstance and many of us have not even faced analogous circumstances. Tort law often requires that factfinders use their imagination and empathy to recreate the scene of the accident and evaluate what was “reasonable” under those circumstances. Might the purposes of Mrs. Fox’s trip matter to the analysis (recalling that she and her companion were described as trying to reach the ferry)?
Note 2. In a way, the reasonableness standard permits tort law to “crowdsource” what the right thing to do is, in any given situation. However, traditionally this crowdsourcing reflected the dominant viewpoint of the “reasonable man.” What would he do under the circumstances, whether considering the facts in terms of the defendant’s conduct or the plaintiff’s conduct and injury. For instance, what would the reasonable man do in taking precautions on a hog farm or when battling a grease fire? For more discussion of the role of gender and reasonableness, see Margo Schlanger, Gender Matters: Teaching a Reasonable Woman Standard in Personal Injury Law, 45 St. Louis U. L. J. 769 (2001), Leslie Bender, A Lawyer’s Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3, 22 (1998)). Can you think of specific circumstances in which the “reasonable man” standard could or should differ from the “reasonable woman” standard? Is Fox v. Glastenbury such a case? Put another way, are there circumstances in which using a “reasonable person” standard might not be appropriate? How would you characterize the judicial description of the plaintiff’s conduct? Note the awkward phrase negating mindfulness: “We are not unmindful of the fact urged upon our attention by the plaintiff’s counsel, that these travelers were females.” Does the court give that fact legal significance or not? Is the reasonable person standard sexist? Why or why not?
Note 3. The opinion is focused on the appeal’s narrow question of whether Mrs. Fox was negligent. However, an applicable statute required that a raised road like this one be “adequately protected by a fence or railing on its sides” and the court actually acknowledged that “a majority of us are of opinion that the town [was] culpably negligent in regard to such protection.” Thus the court would not have overturned Mr. Fox’s favorable verdict had Mrs. Fox not been found negligent herself. If asked to do so, how would you analyze the reasonableness (or culpability) of the town on these facts?
Note 4. Davison, Bartlett and Fox all involve cases brought against municipalities for injuries that can be traced to the failure of railings or guardrails. Can you think of ways to frame the three cases so as to analogize and distinguish them?
Note 5.Employment Harassment and Discrimination. Over time, courts increasingly began to refer to the reasonable person rather than the reasonable man. Yet that did not go far enough in at least one area of law.
The tort law of workplace harassment—which consists of a mix of federal and state laws—remains difficult for plaintiffs to use in fighting injuries suffered as a result of toxic employment environments. However, winning sexual harassment cases became somewhat more feasible once courts stopped downplaying the threats (and unwanted invitations) women experienced at work and began to take their claims more seriously. Doing so, however, arguably required that courts shift from a reasonable person standard to a reasonable woman standard.
In Ellison v. Brady, 924 F.2d 872, 878-9 (9th Cir. 1991), the Ninth Circuit adopted the perspective of the “reasonable victim”:
If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.
924 F.2d 872, 878-9.
In other words, while this standard might seem reasonable from the harasser’s perspective—given the prevalence of sexist behavior in the workplace—applying it would unfairly prevent victims from recovering. Ellison thus demonstrates the court’s awareness of the risks of “crowdsourcing” reasonableness, namely that the so-called “reasonable person” might behave in ways that are harmful yet common. Tort law might perpetuate structural discrimination if it conducted its reasonableness inquiry in its ordinary manner in such cases since it might be argued that the prevalence of harmful conduct was proof of its reasonableness. Ellison opted for a shift from the harasser’s conduct to the impact on the plaintiff and applied a “reasonable victim’s” perspective to correct what would otherwise be a failure of tort law:
We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988) (“A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a ‘great figure’ or ‘nice legs.’ The female subordinate, however, may find such comments offensive”); Yates, 819 F.2d at 637, n. 2 (“men and women are vulnerable in different ways and offended by different behavior”).We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. 924 F.2d 872, 878-9
There is much that can be said about Ellison v. Brady’s adoption of the reasonable victim perspective. First, it feels outdated. The court seemed to find it necessary to explain something that may seem pretty obvious in 2022: in the workplace, telling a colleague or subordinate that they have nice body parts is inappropriate, especially when doing so repeatedly or in the context of a hierarchical or supervisory relationship. Second, it may seem odd to consider the “reasonableness” of the victim’s response to an aggressive and inappropriate (gender-based) power play at work. Is there such a thing as an “unreasonable” victim in certain instances? Third, the court grounds its relief not in the powerful stance of autonomy but the vulnerable one of victimhood.
The court proceeds to explain that women are disproportionately more likely to be the victims of sexual assault and thus “[w]omen who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.” Per Ellison, women have a “stronger incentive to be concerned with sexual behavior.” Id. By framing the harm in terms of fear or as a prelude to sexual violence, the court seems to ignore that these comments are demeaning and discriminatory in their own right. Harassing statements like these are acts of power reminding women to remain in their place.
Are there ways to expand the judicial imagination towards greater empathy and understanding of sociological difference without casting the plaintiff in terms of a victim? Can power structures be acknowledged and made transparent using different rhetoric, or in a way that emphasizes different aspects of a legal rule? For instance, a woman’s autonomy interest in being free from unwanted sexual advances could justify liability on facts like these even if a woman did not fear becoming a victim of sexual violence. How might “reasonableness” analysis look if so?
In addition, in departing from the “reasonable person” standard in favor of the “reasonable woman” standard, Ellison relies on the justification that the reasonable person might ignore or tolerate conduct that was intolerable to the reasonable woman, which would thus “run the risk of reinforcing the prevailing level of discrimination.” In a sense, this is the risk of “crowdsourcing” reasonableness. By considering reasonableness as an objective standard most of the time—which means generalizing it to some level of conduct rather than particularizing it to the party before the court—we aim to capture community mores and values.
When might departures from this practice be justified? Should the standard be particularized in gender discrimination cases only? What about racial discrimination cases? If labor and employment disputes in tort law fall most heavily on those with lower socioeconomic status, or on particular ethnicities, should those be taken into account? What role should demographics play in setting the standard for reasonableness?
Note 6. Though it represented a substantive win for feminism as well as the plaintiff at bar, Ellison is not the first or the last time the judiciary essentialized gender, even if aiming at a progressive outcome. By using the “reasonable woman” standard, Ellison may have inadvertently made it more difficult for people whose identity does not conform with traditional gender categories and who might be facing similar patterns of discrimination. As gender identity becomes more widely acknowledged as non-binary or fluid, what responsibility do legislators, lawyers and judges have, if any, to take account of this expanding awareness of the social constructedness of identity?
Building-Crashing Driver Hypothetical #2: Recall the facts of the earlier hypothetical in which a driver crashed into a building, causing property damage and physical injuries. You were asked to consider the reasonable person standard and what you might need to know to determine whether the bike shop owner could bring an action against the driver.
Now you are told that the driver was epileptic and had been suddenly rendered unconscious at the wheel mere seconds before he crashed into the building.
Once again, the bike shop owner asks you, a practicing attorney, whether he can sue the driver. Recall that the elements of negligence are duty, breach, causation and harm. What would you now want to know in order to determine whether an action might be available against the driver?
1. The city and the railway company raise no question as to their joint liability, if there is any liability. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/01%3A_Introduction_to_Tort_Law/1.02%3A_Introduction_to_Negligence.txt |
Strict liability is a regime in tort law in which neither fault nor intent is relevant to liability: the actions that caused injury were of a particular kind so dangerous, or for other reasons deemed so risky, that courts or legislators have decided to classify the conduct as a strict liability activity. A plaintiff merely needs to prove that the defendant acted in such a way that caused the plaintiff’s injuries: the elements are action, causation, and harm. In theory then, this looks simple; in practice, it can be more complex, either because a factual question exists as to whether the action properly falls within a category of behavior deemed strict liability or because the question is one “of first impression”–never decided by this court before—and a court must newly decide how to categorize this new form of behavior or risk.
Often when faced with such a question, courts and legislatures look to existing categories of actions subject to strict liability. For example, ownership of wild animals is strict liability (and in many jurisdictions, even dog bites are treated under strict liability). Uses of dynamite and other forms of “ultrahazardous activity” fall under strict liability in most instances, and in some jurisdictions, this means that firework displays are governed by strict liability. Students are sometimes surprised to learn that gun use and manufacture are not subject to strict liability. Finally, one kind of product liability action is generally considered under strict liability, as you’ll learn if your course covers products liability later in the term. Courts may analogize the conduct in question to one of those existing categories. In evaluating whether an action should be categorized as strict liability courts may also consider the level and kind of risks the action poses versus the benefits that flow from such action (or from the use of such a product, in product liability cases). Policy determinations about the possibilities for innovation may depend on tort law’s fact-sensitive capacity for balancing the benefits and risks to various different stakeholders. These policy questions become especially salient with respect to emerging technologies which often seem to carry great promise but also come with unknowns regarding how they will be integrated into society and how their risks will be fully discovered and managed.
What are your intuitions about the proper balance when it comes to regulating new technologies? As a normative question, consider whether you think driverless cars, drones or highly immersive games such as Pokémon GO should be subject to strict liability. Descriptively, numerous regulatory provisions at the state and federal level already cover some aspects of these technologies but it’s worthwhile to think, in this introductory module, about what you think as a policy matter is a sound answer for tort law, and why.
Introduction to the Restatements
As courts and legislatures reflect on these issues, they often turn to an important resource called the Restatement of Law. There are four Restatements for tort law: The Restatement Third of Torts: Liability for Physical and Emotional Harm (2010/2012), Apportionment of Liability (2000), Products Liability (1998), and Liability for Economic Harm (2020). You can learn more about them here: https://www.ali.org/publications/show/torts/ or search online for general discussions of them. They are descriptions of existing black-letter law, drafted by practitioners, academics and judges in committees that spend years contributing to making these extensive records of the law. The Restatements predated the widespread availability of legal databases that have since made researching national law comparatively easy. Before such databases were available, it was often hard to locate and survey “court reporters,” which were expensive, heavy tomes not necessarily organized in uniform or consistent ways. The Restatements provided an efficient means of learning the contours of an area of law in many jurisdictions at once. Even in the era of databases, however, the Restatements have remained useful in their capacity to provide reliable summaries of the law along with extensive examples and comments.
The Restatements—as their name implies—are meant to restate or summarize the law, descriptively. In some areas of law, including torts, they grew more prescriptive or normative. Instead of expressly trying to state what the law simply “was” for instance, the drafters of the Restatement on Products Liability added to its summaries of the law their recommendations for what the law “should be, ideally.” (This distinction provides an example of why it’s helpful to learn to distinguish between descriptive and normative statements of law.) The Restatement (Third) is not yet completed so you may see courts, treatises and this casebook refer to provisions of either the Second or the Third at different points. Various controversies have arisen with respect to some of the positions taken by the drafters of the Third Restatement. Judicial opinions sometimes reflect this by stating that they will retain the rule of the Second rather than adopting the Third on a given issue. Armed with this basic background on the Restatements of law, you are now in a better position to understand the role they play in the formation of strict liability law, especially in the last case in this section, Toms v. Calvary, below.
Questions for the Readings
As you read the next two cases, please keep the following questions in mind:
• When is strict liability applicable?
• Why does policy dictate the imposition of strict liability in some instances, but not in others?
• What does this tell us about tort law’s deeper purposes?
A note about confusing terminology in the next case: Respondent Halsett is considered a “licensor” of laundry equipment because he allows customers of his laundromat to enter his property and use his machines. Petitioner Garcia is a “licensee.” The court makes reference to an argument that’s been omitted here for length and clarity, in which Halsett tried to argue that Garcia was a “bailee” of the defective washing machine. The court dismisses that theory, which was Halsett’s attempt to argue that the young injured boy should have borne responsibility for the operation of Halsett’s commercial washing machine.
(3 Cal.App.3d 319)
The plaintiffs appeal from a judgment in favor of the defendant following a jury trial. On July 19, 1962 the appellant, Arthur Garcia, an 11-year old boy, was injured in respondent’s Happy Coin Launderette in San Jose. Respondent had owned the business since 1959. Launderette Sales designed the store layout and sold and installed all of the equipment. Respondent had nothing to do with the design of the store or with installation of the equipment. The facilities of the launderette included four rows of coin operated washing machines. The machines were Philco-Bendix, front-loading, commercial washers. These machines have a washing cycle, three rinse cycles, two spin cycles, and one long extraction cycle. The last of these cycles is a spin cycle lasting 4 1/2 or 5 minutes, during which the tub of the machine obtains a velocity of 370 revolutions per minute. The entire procedure lasts 30 minutes.
At the time of the accident, the machines were equipped with a circuit breaker, or reset button. The circuit breaker is a fuse, and has one purpose only: In the event of a short in the machine, or of a motor overload, which would create a heavy draw of current and consequently constitute a fire *322 hazard, the circuit breaker will break the circuit and stop the machine completely. If the circuit breaker button is depressed while the machine is running, it will stop the machine. However, the moment that the button is released the machine will start operating again. The circuit breaker is not used to stop the machine manually. Respondent testified that the manufacturer did not intend that this button should be used to stop a machine in order to reach into the loaded machine.
The appellant, Arthur Garcia, had been instructed by his mother as to how to run the machines and had been going there to wash clothes about once a week. He had also read the posted instructions regarding the loading of the machine. The uncontradicted testimony of the appellants establishes that the accident took place in the following manner: On the date of the accident, Arthur went to the Happy Coin Launderette with his 10-year old brother to do some laundry. When he entered the launderette, he looked for available machines, and found machines 1 and 2 at the far end of the launderette. On prior occasions when he went to the launderette, he always used this same type of washing machine. He took a portion of the clothes and put them in machine No. 1, and then inserted a quarter and started the machine. He then went to machine No. 2, put in the balance of the laundry, inserted a quarter, and started the second machine. Both machines started. In accordance with the posted instructions, he put soap in each machine, and began to read a magazine.
While he was sitting there, machine No. 2, the machine which he had started second, stopped. He actually saw the machine stop. Prior to that time, the machine had been spinning. He had seen it spinning through the window in the machine. The water had all drained out and it was clean; he could see through the window in the washer. After machine No. 2 stopped, he waited until machine No. 1 stopped, three or four minutes later. He unloaded the clothes from machine No. 1. During this time machine No. 2 was stopped. He then went to machine No. 2 and began removing the clothes.
The first batch of clothes he pulled out of machine No. 2 were ‘all dry, like spin dry’. When he inserted his hand into the machine the second time, the machine made a funny noise and started up fast. When the machine started up, his arm became entangled in the clothing. His arm was twisted around and he himself was twisted around until he had his back to the machine.
Respondent Halsett testified that upon hearing Arthur’s screams he came out of the office at the rear of the launderette. The quickest thing he could think of to do under the circumstances was to pull the plug, *323 which is located at the back of the machine. In order to pull the plug, he had to go over the top of the machine and reach down in back. He could have depressed the reset button, but as soon as one let go of the button, the machine would start up again. When respondent returned to the launderette, after having taken Arthur home, he plugged in machine No. 2, and at that time the machine was in its fast spin cycle. Respondent also testified that he thought the washing machine in question was perfectly safe and had all the safety features that were required. However, he also testified that the machine did not have a micro switch and that they were not available at that time.
A micro switch is a sensitive, pressure-activated switch which is placed across the main electrical circuit of the machine. It serves as a safety device. When activated, by opening the door, it completely shuts off the electricity going through the machine. The purpose of the micro switch is to prevent the machine from operating when the door is opened. Respondent admitted that if such a switch had been on the machine on the date of the accident, the machine could not have started spinning when Arthur opened the door and inserted his arm.
Micro switches sell for around \$2.00. Shortly after the accident respondent obtained 12 of these micro switches and installed them himself on the machines. Experts for both appellants and respondent testified that micro switches had been on the market for a number of years. Appellants’ expert witness, an experienced appliance dealer, testified that, in his opinion, the washing machine in question was defective because, first, the timing mechanism was defective, and, second, a 1958 Bendix commercial washer manufactured without a micro switch would be defective. If the machine was manufactured without a micro switch, a switch could be purchased and installed. This machine was defective because it did not have a micro switch on it. Other Philco-Bendix machines manufactured as early as 1952 had micro switches. Machines produced by other manufacturers have micro switches which serve as safety switches. Appellants’ expert witness also testified, in effect, that wear and tear resulting from years of use may result in a timer becoming faulty, thus causing the machine to stop during a cycle and then start again when the machine is jarred or the door opened.
The appellants contend that the trial court committed reversible error in that it refused to give the instructions offered by appellants on (1) bailment, and (2) strict liability.
[***] There is no question raised as to the form of the instructions, only as to their applicability. The appellants’ contention is without merit since the facts do not establish a bailment of the washing machine. [***] In order to constitute a bailment, possession of the article bailed must be given or delivered to the bailee. [cc] Appellants contend that appellant Arthur had at least constructive[1] possession of the washing machine during the time he was using it. However, this argument is also without merit. Appellant Arthur assumed no responsibility for the safekeeping of the machine, and did not have the right to remove it or tamper with the mechanical parts of the washer. Appellant Arthur merely acquired a license to use the washing machine and was not a bailee. [c] Since respondent could have prevented appellant Arthur from using the washing machines, and respondent impliedly gave Arthur permission to use them, Arthur merely had a license and cannot be considered a bailee of the machines.
The appellants submitted proposed jury instructions on the issue of strict liability in tort which the court refused to give. [***]
Strict liability applies to the manufacturer of chattels which cause personal injury. (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63 1049.) This liability *325 has been extended to retailers and distributors of chattels. (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262—263.) In the recent case of McClaflin v. Bayshore Equipment Rental Co., 274 A.C.A. 487, strict liability was imposed upon the lessor of a chattel. In McClaflin, plaintiff’s decedent rented a ladder from defendant and subsequently died from injuries received when the leg of the ladder cracked, and decedent fell from it.
The precise legal relationship between the parties has not played a particularly significant role in the cases imposing strict liability. The court in McClaflin stated [c]: ‘The Greenman rule, moreover, extends its protection to the injured party without reference to the role he played, or even if he played none, in the transaction wherein the defective chattel was acquired from its purveyor. He can be a retail buyer (Greenman v. Yuba Power Products, Inc., supra [c]), a member of the buyer’s family (Vandermark v. Ford Motor Co., supra [c]), the buyer’s employee (Casetta v United States Rubber Co. (1968), 260 Cal.App.2d 792, 795), or a ‘mere bystander’ totally unconnected with the chattel’s purveyor except as an ultimate victim. (Elmore v. American Motors Corp., supra, 70 A.00 C. 615, 618, 623—624.)’
Respondent’s argument would exclude from the protected class a person who has a license to use a product but has no control over it. Appellants’ position in the present case is somewhat analogous to that of the innocent bystander protected in Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652. Appellant Arthur in the present case did not have control over the washing machine, or have the opportunity to inspect it for mechanical defects other than those which would be obviously apparent. In this regard, appellant Arthur is actually in a worse position than a retail buyer or member of the buyer’s family, who arguably have an opportunity to inspect a product before buying and using it. Appellant Arthur’s only choice was to pick, at random, a washing machine provided by respondent for use by the public. The fact that he picked one that may have had a latent defect should not bar his recovery for injuries sustained when the machine malfunctioned.
Licensors of personal property, like the manufacturers or retailers or lessors thereof, ‘are an integral part of the overall * * * marketing enterprise that should bear the cost of injuries resulting from defective products.’ [cc] *326 Although respondent is not engaged in the distribution of the product, in the same manner as a manufacturer, retailer or lessor, he does provide the product to the public for use by the public, and consequently does play more than a random and accidental role in the overall marketing enterprise of the product in question. Thus, the rationale of Greenman and Vandermark applies as logically and desirably to a licensor of chattels as to the manufacturers, retailers and lessors thereof. The trial court should have instructed on the issue of strict liability.
Respondent contends that there is no evidence of a defect and thus strict liability is not applicable in this case. However, it is well settled that a defect may be established by circumstantial evidence. [cc] The facts summarized above demonstrate that there was ample evidence from which it could be concluded that the machine in question was defective.
The judgment is reversed.
Note 1. Why does the court address “the precise legal relationship between the parties”?
Note 2. Does the court hold that there was a defect with the washing machine? What do you think is the legal significance of this issue and who decides it?
Note 3. In the era in which this case was decided, there were hundreds of laundromats in greater San Francisco. This site claims that in 1966 there were nearly 500, compared with fewer than 100 in 2016: https://hoodline.com/2017/05/trend-analysis-san-francisco-is-losing-its-laundromats
Generally, significantly fewer single-family homes owned their own laundry machines in large cities, compared with today’s rates. If laundromats were a primary way that urban households did their laundry, a ruling on the liability for machine defects carried substantial implications. I have been unable to find data on the plaintiff, and it would be a mistake to infer very much from the surname, Garcia. However, we know that the plaintiff was a young male and the name “Garcia” suggests he may have been of color. Moreover, we know that his family depended on the laundromat and on his efforts there for the household. Do you think any of these factors were taken into account by the court? Normatively, do you think they should be in cases like this one?
Check Your Understanding (1-3)
Question 1. Which of the following statements is true of the holding in Garcia v. Halsett:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Note: The following case is a classic tort law case featuring explosives that cause injury to animals, specifically mink kittens. It illustrates an important set of points about the applicability and scope of strict liability but it’s not going to garner much love from readers who are also animal lovers. In the case, you will see references to a theory of tort liability associated with the use of land, called “nuisance.” A person may be found liable for nuisance based on unreasonable or unlawful use of their property in a manner that substantially interferes with the enjoyment or use of another’s property. It can accompany a trespass or be separate from it; odors or sounds, for instance, that travel across property lines, can count. Private nuisance affects the possessor or owner of property; public nuisance affects the community as a whole. The case presents nuisance only as an alternative theory but you may still find it helpful to have that definition upfront.
(44 Wash.2d 440)
Blasting operations conducted by Preston Mill Company frightened mother mink owned by B. W. Foster, and caused the mink to kill their kittens. Foster brought this action against the company to recover damages. His second amended complaint, upon which the case was tried, sets forth a cause of action on the theory of absolute liability, and, in the alternative, a cause of action on the theory of nuisance.*441 After a trial to the court without a jury, judgment was rendered for plaintiff in the sum of \$1,953.68. The theory adopted by the court was that, after defendant received notice of the effect which its blasting operations were having upon the mink, it was absolutely liable for all damages of that nature thereafter sustained. The trial court concluded that defendant’s blasting did not constitute a public nuisance, but did not expressly rule on the question of private nuisance. Plaintiff concedes, however, that, in effect, the trial court decided in defendant’s favor on the question of nuisance. Defendant appeals.
Respondent’s mink ranch is located in a rural area one and one-half miles east of North Bend, in King county, Washington. The ranch occupies seven and one half acres on which are located seven sheds for growing mink. The cages are of welded wire, but have wood roofs covered with composition roofing. The ranch is located about two blocks from U. S. highway No. 10, which is a main east-west thoroughfare across the state. Northern Pacific Railway Company tracks are located between the ranch and the highway, and Chicago, Milwaukee, St. Paul & Pacific Railroad Company tracks are located on the other side of the highway about fifteen hundred feet from the ranch.
The period of each year during which mink kittens are born, known as the whelping season, begins about May 1st. The kittens are born during a period of about two and one-half weeks, and are left with their mothers until they are six weeks old. During this period, the mothers are very excitable. If disturbed by noises, smoke, or dogs and cats, they run back and forth in their cages and frequently destroy their young. However, mink become accustomed to disturbances of this kind, if continued over a period of time. This explains why the mink in question were apparently not bothered, even during the whelping season, by the heavy traffic on U. S. highway No. 10, and by the noise and vibration caused by passing trains. There was testimony to the effect that mink would even become accustomed to the vibration and noise of blasting, if it were carried on in a regular and continuous manner.
*442 Appellant and several other companies have been engaged in logging in the adjacent area for more than fifty years. Early in May, 1951, appellant began the construction of a road to gain access to certain timber which it desired to cut. The road was located about two and one-quarter miles southwest of the mink ranch, and about twenty-five hundred feet above the ranch, along the side of what is known as Rattle-snake Ledge. It was necessary to use explosives to build the road. The customary types of explosives were used, and the customary methods of blasting were followed. The most powder used in one shooting was one hundred pounds, and usually the charge was limited to fifty pounds. The procedure used was to set off blasts twice a day-at noon and at the end of the work day.
Roy A. Peterson, the manager of the ranch in 1951, testified that the blasting resulted in ‘a tremendous vibration, is all. Boxes would rattle on the cages.’ The mother mink would then run back and forth in their cages and many of them would kill their kittens. Peterson also testified that on two occasions the blasts had broken windows. Appellant’s expert, Professor Drury Augustus Pfeiffer, of the University of Washington, testified as to tests made with a pin seismometer, using blasts as large as those used by appellant. He reported that no effect on the delicate apparatus was shown at distances comparable to those involved in this case. He said that it would be impossible to break a window at two and one-fourth miles with a hundred-pound shot, but that it could cause vibration of a lightly-supported cage. It would also be audible. Charles E. Erickson, who had charge of the road construction for appellant in 1951, testified that there was no glass breakage in the portable storage and filing shed which the company kept within a thousand feet of where the blasting was done. There were windows on the roof as well as on the sides of this shed.
Before the 1951 whelping season had far progressed, the mink mothers, according to Peterson’s estimate, had killed thirty-five or forty of their kittens. He then told the manager *443 of appellant company what had happened. He did not request that the blasting be stopped. After some discussion, however, appellant’s manager indicated that the shots would be made as light as possible. The amount of explosives used in a normal shot was then reduced from nineteen or twenty sticks to fourteen sticks. Officials of appellant company testified that it would have been impractical to entirely cease road-building during the several weeks required for the mink to whelp and wean their young. Such a delay would have made it necessary to run the logging operation another season, with attendant expense. It would also have disrupted the company’s log production schedule and consequently the operation of its lumber mill. In this action, respondent sought and recovered judgment only for such damages as were claimed to have been sustained as a result of blasting operations conducted after appellant received notice that its activity was causing loss of mink kittens.
The primary question presented by appellant’s assignments of error is whether, on these facts, the judgment against appellant is sustainable on the theory of absolute liability.
The modern doctrine of strict liability for dangerous substances and activities stems from Justice Blackburn’s decision in Rylands v. Fletcher, 1 Exch. 265, decided in 1866 and affirmed two years later in Fletcher v. Rylands, L.R. 3 H.L. 330. Prosser on Torts, 449, § 59. As applied to blasting operations, the doctrine has quite uniformly been held to establish liability, irrespective of negligence, for property damage sustained as a result of casting rocks or other debris on adjoining or neighboring premises. [cc]
There is a division of judicial opinion as to whether the doctrine of absolute liability should apply where the damage *444 from blasting is caused, not by the casting of rocks and debris, but by concussion, vibration, or jarring. 92 A.L.R. 741, annotation. This court has adopted the view that the doctrine applies in such cases. In the Patrick case, it was held that contractors who set off an exceedingly large blast of powder, causing the earth for a considerable distance to shake violently, were liable to an adjoining owner whose well was damaged and water supply lost, without regard to their negligence in setting off the blast, although there was no physical invasion of the property. [cc]
However the authorities may be divided on the point just discussed, they appear to be agreed that strict liability should be confined to consequences which lie within the extraordinary risk whose existence calls for such responsibility. Prosser on Torts, 458, § 60; Harper, Liability Without Fault and Proximate Cause, 30 Mich.L.Rev. 1001, 1006; 3 Restatement of Torts, 41, § 519. This limitation on the doctrine is indicated in the italicized portion of the rule as set forth in Restatement of Torts, supra:
‘Except as stated in §§ 521-4, one who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.’ (Italics supplied.) This restriction which has been placed upon the application of the doctrine of absolute liability is based upon considerations of policy.
As Professor Prosser has said:
‘* * * It is one thing to say that a dangerous enterprise must pay its way within reasonable limits, and quite another to say that it must bear responsibility for every extreme of harm that it may cause. The same practical necessity for the restriction of liability within some reasonable bounds, which arises in connection with problems of ‘proximate cause’ in negligence cases, demands here that some limit be set. * * * This limitation has been expressed by saying *445 that the defendant’s duty to insure safety extends only to certain consequences. More commonly, it is said that the defendant’s conduct is not the ‘proximate cause’ of the damage. But ordinarily in such cases no question of causation is involved, and the limitation is one of the policy underlying liability.’ Prosser on Torts, 457, § 60.
Applying this principle to the case before us, the question comes down to this: Is the risk that any unusual vibration or noise may cause wild animals, which are being raised for commercial purposes, to kill their young, one of the things which make the activity of blasting ultrahazardous?
We have found nothing in the decisional law which would support an affirmative answer to this question. The decided cases, as well as common experience, indicate that the thing which makes blasting ultrahazardous is the risk that property or persons may be damaged or injured by coming into direct contact with flying debris, or by being directly affected by vibrations of the earth or concussions of the air. Where, as a result of blasting operations, a horse has become frightened and has trampled or otherwise injured a person, recovery of damages has been upheld on the theory of negligence. [cc] Contra: Uvalde Construction Co. v. Hill, 142 Tex. 19, where a milkmaid was injured by a frightened cow. But we have found no case where recovery of damages caused by a frightened farm animal has been sustained on the ground of absolute liability.
If, however, the possibility that a violent vibration, concussion, or noise might frighten domestic animals and lead to property damages or personal injuries be considered one of the harms which makes the activity of blasting ultrahazardous, this would still not include the case we have here. *446 The relatively moderate vibration and noise which appellant’s blasting produced at a distance of two and a quarter miles was no more than a usual incident of the ordinary life of the community. See 3 Restatement of Torts, 48, § 522, comment a. The trial court specifically found that the blasting did not unreasonably interfere with the enjoyment of their property by nearby landowners, except in the case of respondent’s mink ranch.
It is the exceedingly nervous disposition of mink, rather than the normal risks inherent in blasting operations, which therefore must, as a matter of sound policy, bear the responsibility for the loss here sustained. We subscribe to the view expressed by Professor Harper (30 Mich.L.Rev. 1001, 1006, supra) that the policy of the law does not impose the rule of strict liability to protect against harms incident to the plaintiff’s extraordinary and unusual use of land. This is perhaps but an application of the principle that the extent to which one man in the lawful conduct of his business is liable for injuries to another involves an adjustment of conflicting interests. [c]
It may very well be that, under the facts of a particular case, recovery for damages of this kind may be sustained upon some theory other than that of absolute liability. In Hamilton v. King County, 195 Wash. 84, for example, recovery of such damages was sanctioned on the ground that defendant had trespassed upon plaintiff’s land in doing the blasting which caused the disturbance.
Likewise, if the facts warrant, it is possible that such damages may be predicated upon a violation of RCW 70.74.250, cf. Rem.1941 Sup., § 5440-25, requiring notice to be given at certain times of the year when blasting is to be undertaken within fifteen hundred feet of any fur farm or commercial hatchery, except in certain cases. In Maitland v. Twin City Aviation Corp., 254 Wis. 541, where a low-flying airplane frightened mink and loss of kittens resulted, recovery was allowed upon a showing that the airplanes were flown at an unlawfully low elevation. *447 In Madsen v. East Jordan Irrigation Co., 101 Utah 552, recovery was denied under facts very similar to those of the instant case, on the ground that the mother mink’s intervention broke the chain of causation.
It is our conclusion that the risk of causing harm of the kind here experienced, as a result of the relatively minor vibration, concussion, and noise from distant blasting, is not the kind of risk which makes the activity of blasting ultrahazardous. The doctrine of absolute liability is therefore inapplicable under the facts of this case, and respondent is not entitled to recover damages.
The judgment is reversed.
Note 1. What is the holding in this case?
Note 2. What does the court suggest (in dictum) about the possibility of recovery in future cases on similar facts?
Note 3. Practice stating how this opinion serves—or disserves—tort law’s purposes. In so doing, take note of whether your normative view of the case matches or diverges from your intuitions about the facts. What do you notice about the relationship between framing the risks and harms in the fact pattern and determining whether tort law’s larger purposes are served?
Check Your Understanding (1-4)
Question 1. True or false: The court’s holding in Foster v. Preston Mill Co. (reversing the lower court’s ruling in favor of the plaintiff on a theory of absolute liability) relies on the rationale that negligence only requires reasonable, not zealous, best efforts, which are satisfied here because the logging company did lower the strength of its blasts after being notified of the impact to the mink mothers and their kittens.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Reflect On Your Understanding – Essay: Foster v. Preston Mill Co.
Essay: How would you explain your answer to the True or False inquiry in the preceding question, in 200 words or fewer?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
When you study proximate cause more deeply, under causation (in the full module on Negligence), you’ll see that there are interrelated issues of strategic framing involved: if you define an activity by its harms, how you define its harms will dispose of the legal question. Consequently, it produces a feedback loop in which parties will try to define the harm and the risk strategically. (Stay tuned—this will make more sense when you encounter proximate cause. Note, for now that causation is always required: if a plaintiff cannot show that the defendant’s actions—measured by whatever culpability level—caused their injury, the plaintiff will fail. Proximate cause often is more important in negligence law, partly because of the lower culpability standard imposed on defendants and negligence is the area of law in which proximate cause is traditionally taught. But proving proximate cause is always required, whether explicitly or implicitly.)
Check Your Understanding (1-5)
Question 1. Which (if any) of the following statements is true regarding the different regimes of tort law?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
As you will learn when you study Product Liability Law, some claims may be bought under strict liability. The Restatement (Third) limits “strict liability” for injuries caused by defective products based on the kind of defects alleged. If claims are based on manufacturing defect, strict liability applies; if the claims are based on design or warning defects, the Restatement articulates a different standard, more akin to negligence. For now, keep in mind that understanding the differences between these regimes will pay dividends later as your substantive knowledge deepens.
1. Editor’s note: “Constructive” is a term of art that indicates that the law will make an assumption, regardless of the truth. Constructive possession would mean that whether or not Arthur actually possessed the machine, he could, for legal purposes, be assumed to be a possessor. The court immediately rejects this idea but the word “constructive” will return later in the course as a way of signaling that the law is making an assumption or relying on a legal fiction for particular purposes. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/01%3A_Introduction_to_Tort_Law/1.03%3A_Introduction_to_Strict_Liability.txt |
Check Your Understanding (1-6)
Question 1. Parties may choose to litigate the issue of whether strict liability can apply because:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
This next question involves policy-oriented analysis and you may not have done very much of this yet in law school. Do your best to work through it and know that you will gain high competency in this style of analysis by the end of the term, even if it’s a little unfamiliar to you at the moment.
Reflect On Your Understanding – Essay: Toms v. Calvary
Essay: Do you think this case is rightly or wrongly decided? Why? Your answer should include descriptive analysis (address the law as you understand it to be so far, what the law is) as well as prescriptive or normative analysis (what you think the law should be, based on a policy rationale). (Recommended maximum, 200 words)
Distinguish your intuitive response (if you feel the outcome seems unfair, or you hate fireworks… or you loathe cows) from your descriptive reading of the case law (cases assigned in the readings and cases cited in Toms).
As a policy matter, what do you think the court should donormatively, that is, based on policy reasons? You can raise any kind of policy argument that makes sense to you here, for example:
a) an institutional competence argument about the court versus the legislature deciding this issue;
b) an argument based in doctrine, on the likely impact of expanding strict liability on these facts, or choosing not to do so;
c) an argument rooted in socioeconomic and cultural values (weighing the competing priorities of fireworks fans, churchgoers and farmers or other property owners, for instance);
d) an economic or utilitarian argument oriented towards efficiency;
e) an argument from policy in some other form.
1. Toms’ relatives and landlord were also contacted by Calvary, but all declined permission to allow Calvary to host the event on their property.
2. Firework shooters must be certified in the State of Maryland. Applicants must submit a “Firework Shooter Testing and Permit Application” to the Office of the State Fire Marshal in order to “to possess, sell or use explosives of any kind in the State of Maryland.”
3. “Dean Thayer pointed out the error in the popular assumption that the rule of Rylands v. Fletcher makes the defendant liable for all consequences in fact resulting from his conduct. This is precisely what the rule of the case does not do; it makes [the] defendant liable ... only for proximate consequences, not for remote consequences.” Fowler v. Harper, Liability Without Fault and Proximate Cause, 30 MICH. L.REV. 1001, 1005 (1932) (emphasis in original).
4. Under certain circumstances, causes of action may exist in cases involving fireworks liability under the theories of negligence or nuisance. See Crowley v. Rochester Fireworks Co., 183 N.Y. 353 (1906) (“[T]here may be negligence in the character of the fireworks used on a particular occasion as well as in the method of their discharge.”); Little v. Union Trust Co. of Maryland, 45 Md.App. 178, 183 (1980) (discussing possible nuisance liability for shooting fireworks in the street).
5. In the petition for writ of certiorari, Toms states “This Court ... can expand the factual application of this tort to instances where the sudden, abnormal noise of a fireworks display, adjacent to livestock, can create strict liability.”
6. Letter from John Adams to Abigail Adams, 3 July 1776, MASS. HIST. SOC'Y, http://www.masshist.org/digitaladams/archive/doc?id=L17760703 jasecond [https://perma.cc/P22L-DMRX]. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/01%3A_Introduction_to_Tort_Law/1.04%3A_Distinguishing_Strict_Liability_from_Negligence_%28Socratic_Script%29.txt |
Part I. Protecting Property and Bodily Integrity
Thus far, the standards of tort liability you’ve learned about have hinged on fault or policy fiat based on determinations of levels of risk. With these materials, we shift gears and introduce different inquiries into the conduct of the defendant, as well as the intentionality behind that conduct. Tort law defines intent in a particular way along a spectrum of volition. A person who intends to act in a given way satisfies the intent requirement for many of the intentional torts regardless of whether they intended the harm that their action caused. It’s somewhat like mens rea in criminal law, with which you may be familiar, in that it’s a required mental state that must be proven for any claim in this domain. To make out a claim for an intentional tort, the plaintiff must prove the necessary intent level required for that claim.
In addition, while there is overlap in the kinds of interests that negligence and strict liability protect, the intentional torts protect additional interests that are critically important to the system of tort law. Framing the interests accurately becomes much more important in the intentional torts, which tend to require satisfaction of rigid criteria for a claim to succeed, but which tend to protect interests more broadly than negligence or strict liability do. For instance, the tort of battery does not protect merely against physical harm, the way negligence and strict liability do. This tort protects bodily autonomy, which means that a plaintiff can sue for the invasion of that autonomy even if they’ve suffered no physical harm.
Similarly, the tort of trespass to land protects against something more than just harm to land; it protects against one’s ownership in the land and right to use it. A plaintiff can sue for trespass even if nothing happens to harm their land, merely because property ownership allows owners to stop people from coming onto their land without permission. The interest tort law is protecting runs deep and reflects normative judgment about what society values and believes.
For that reason, tort law’s protection of one’s bodily autonomy and one’s home or property may make intuitive sense. Yet tort law is somewhat idiosyncratic about what it chooses to protect. It has historically been less protection of violations connected with feelings or one’s mental state. For most of the history of American tort law, plaintiffs couldn’t recover for emotional distress alone. Courts feared fraud and expressed concern over their inability to measure genuine harm or suffering with nothing more than a plaintiff’s allegations of distress. As modern psychology made such assessments more reliable and standardized, courts were nonetheless somewhat slow to relax the limitations on recovery for emotional distress.
Scholars have noted the ways in which this sometimes reflected gendered and racist ideas, and tort law continues to need to understand and account for its internal coherence and equity. For one thing, when claims for “fright” or emotional distress succeeded, historically they were usually brought by men on behalf of women (such as a husband or father); for another, they were usually attributable to some other doctrinal justification. One of the cases in this unit, Gulf v. Luther, permits recovery by a white woman for allegedly suffering emotional distress and fright while waiting in a train station when a Black woman employed by the railway company spoke to her in a way deemed to be insulting. There are doctrines you’ll see in the case, however, that provide additional reasons for why the court might have permitted recovery despite the general rules limiting recovery for purely emotional distress. Racism and sexist tropes also play a role in the way the legal opinion proceeds and in how it construes the precedents on which it relies.
To understand tort law, it is important to observe the rhetoric used, the way that the court deals with the evidence in the case, and its unacceptable and dehumanizing treatment of the Black woman whose action is the source of the grievance. Following that, we’ll look at a case cited in Luther which demonstrates how case law entrenches racism and creates silences, systematic gaps in the record that minimize or erase the suffering of people of color and marginalized groups. None of this is comfortable to read about and it may be hard to confront. Facing these problematic legal practices is critical to understanding how the law operates as well as gaining glimpses of how to do better in listening to and amplifying marginalized voices. Even in many cases in which people of color win, often the judge, or the other parties are permitted greater voice and representation and the victorious plaintiff may be somehow silenced or almost absent, as is the case in Mulloy v. Hop Sang, the Canadian case featuring an unwanted amputation.
These cases are also meant to give you a sense of how sometimes tort law did redress some forms of social injustice; maybe not fully enough, maybe not always, but at least in some instances. In some instances, tort law can operate as a form of civil rights protection, as in Ruizv. Bertolotti in which the court struggles to fit the fact pattern into its existing torts and yet decides not to ignore the defendant’s wrongful behavior despite the technical hurdles it must overcome to do so.
Finally, the last case in this Module, Cobbs v. Grant, provides a fact pattern that allows you to revisit negligence and test your high-level understanding of the distinctions between negligence and the intentional torts, framed against the backdrop of a medical malpractice fact pattern. It also reaffirms how the interests in battery extend well beyond the scope of a broken bone or bruise to protect a deep and robust form of patient autonomy.
Over the course of the next few classes, we will encounter sometimes painful or triggering material pertaining to race and gender, but it is material that helps us understand the scope of tort law’s reach, historically, and currently. It also helps us understand what tort law has avoided doing, and silences tort law has created by defining the suffering in society to count, or not to count, as cognizable under its doctrines.
A note about the anachronism of reading older cases: these cases remain relevant for today’s learning but reading them requires that we adopt some respectful norms of discourse. Older cases use terms that are out of date and sometimes downright offensive. Your class may develop ground rules for how to discuss sensitive issues, or address class norms in the syllabus. These suggestions offer an alternative, but please follow your course’s conventions if those are explicitly provided.
If you are reading from an opinion, you may quote the case language verbatim if you need to do so. Some students may feel that doing so is always unnecessary or triggering, but law school requires that students learn to summarize and paraphrase accurately and, in some cases, verbatim quotation is the most accurate, efficient or even least harmful means of proceeding. Other students may feel that if it’s in the opinion, it is language that can be used with impunity and may not realize the full impact of using the terms somewhat carelessly. In addition to these contrasting views, Professors may also wish to meet their pedagogical goals and hold a stimulating conversation without sacrificing an entire class only to the problems of controversial terminology. Your professor will decide how much attention to give this issue, of course, and whether to set ground rules for class discussions. Unless otherwise instructed or collectively determined, I encourage you to adopt the following practices:
• If you are paraphrasing or describing the case, do not use the offensive term; use appropriate 21st-century terms instead. For example, in the Texas cases below, instead of using the terms it uses (“colored” and “Negro woman”), please use the appropriate contemporary term (“African American” or “Black”) unless you are reading the exact language of the case. Even then, please be thoughtful about whether and when hateful or offensive language needs to be read aloud. It is painful for many to hear judicial language that encodes and authorizes racism and other forms of discrimination, especially without explicit censure that signals a break with that past.
• Lawyers cannot and should not shrink from the ugliness in our laws whether it is historical or contemporary. Yet as they consider how to increase equity in the legal system, law students should keep in mind that refraining from critiquing racist legal statements or concepts embedded in our laws amounts to ratifying them through silence.
Questions for the Readings
As you read the next few cases, please keep the following questions in mind:
• Why does it matter if an action is brought in negligence versus the intentional torts?
• What interests does each of the domains protect, and what sorts of conduct does each regulate?
• What do you observe about how culpability is defined and determined?
• What do you note about the rhetoric, and judicial voice, in these opinions?
The Tort of Trespass
“A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement Second of Torts Sec. 329.
For a plaintiff to succeed in bringing a claim of trespass, they will need to prove the following elements:
• unauthorized entry upon land
• with intent
If a person enters the land of another, moving with the required level of intent that entry is a trespass if it was made without permission or beyond the permission granted. The mail carrier has a privilege to enter upon land to deliver and retrieve mail, for instance, but it is a trespass if when they drop off the mail they also pick flowers from the garden or plant seeds for the benefit of the owner. A vacationer who rents a home for a month is permitted there during that time but staying any amount of time past the checkout date triggers the start of a trespass.
In the full Module on the intentional torts, you will learn more about the intent requirement. In brief, if the defendant intended to move and then trespassed through that movement, intent is satisfied. Stating that she lost her way will not help the defendant: the intent required is the intent to move forward in space and to be where one is (even if it is not where one thought that was). Mistake does not invalidate intent because the intent is not directed at knowledge of the land’s boundaries but rather at the volitional movement. Nonvolitional movement does not satisfy the intent requirement. If the defendant was drugged and dropped on someone else’s land or catapulted onto someone else’s land the intent element for trespass is not met. In a certain sense, trespass can be seen as analogous to strict liability in that if a person appears without permission on the land of another, they are technically trespassing, regardless of their fault or intent, so long as they arrived there by their own volition. The next case pushes that notion to its outer limit and synthesizes important principles of intent and causation.
(19 Johns. 381)
[Editor’s note: please note that the Supreme Court of New York is a trial court, not the highest court in that state. Somewhat confusingly, New York’s highest court is called the Court of Appeals.]
[Rule:] If an act done cause immediate injury, whether it be intentional or not, trespass lies;[1] and if done by the co-operation of several persons, all are trespassers, and all may be sued jointly, or one is liable for the injury done by all; but it must appear that they acted in concert, or that the act of the one sued, ordinarily and naturally, produced the acts of the others.
[Application and Holding:] As, where the defendant, G., ascended in a balloon, which descended a short distance from the place of ascent, into the plaintiff’s garden; and the defendant, being entangled, and in a perilous situation, called for help, and a crowd of people broke through the fences into the plaintiff’s garden, and beat and trod down his vegetables and flowers: Held, that though ascending in a balloon was not an unlawful act; yet, as the defendant’s descent under the circumstances, would ordinarily and naturally draw the crowd into the garden, either from a desire to assist him, or to gratify a curiosity which he had excited, he was answerable in trespass for all the damage done to the garden of the plaintiff.
In error, on certiorari, to the Justices’ Court in the city of New-York. Swan sued Guille in the Justices’ Court, in an action of trespass, for entering his close,[2] and treading down his roots and vegetables, &c. in a garden in the city of New-York. The facts were, that Guille ascended in a balloon in the vicinity of Swan’s garden, and descended into his garden. When he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan’s field, to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried to a barn at the farther end of the premises. When the balloon descended, more than two hundred persons broke into Swan’s garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, was about 15 dollars, but the crowd did much more. The plaintiff’s damages, in all, amounted to 90 dollars. It was contended before the Justice, that Guille was answerable only for the damage done by himself, and not for the damage done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for 90 dollars, on which the judgment was given, and for costs.
SPENCER, Ch. J., delivered the opinion of the Court.
The counsel for the plaintiff in error [Editor’s note: this is now the defendant, Guille] supposes, that the injury committed by his client was involuntary, and that done by the crowd was voluntary, and that, therefore, there was *382 no union of intent; and that upon the same principle which would render Guille answerable for the acts of the crowd, in treading down and destroying the vegetables and flowers of S., he would be responsible for a battery, or a murder committed on the owner of the premises.
The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act cause the immediate injury, whether it was intentional, or unintentional, trespass is the proper action to redress the wrong. It was so decided, upon a review of all the cases, in Percival v. Hickey. (18 Johns. Rep. 257.) Where an immediate act is done by the co-operation, or the joint act of several persons, they are all trespassers, and may be sued jointly or severally; and any one of them is liable for the injury done by all. To render one man liable in trespass for the acts of others, it must appear, either that they acted in concert, or that the act of the individual sought to be charged, ordinarily and naturally, produced the acts of the others.
The case of Scott v. Shepard, (2 Black. Rep. 892) is a strong instance of the responsibility of an individual who was the first, though not the immediate, agent in producing an injury. Shepard threw a lighted squib, composed of gunpowder, into a market house, where a large concourse of people were assembled; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the market, when it fell on another standing; from thence, to save the goods of the owner, it was thrown to another part of the market house, and in so throwing it, it struck the plaintiff in the face, and, bursting, put out one of his eyes. It was decided, by the opinions of three Judges against one, that Shepard was answerable in an action of trespass, and assault and battery. De Grey, Ch. J., held, that throwing the squib was an unlawful act, and that whatever mischief followed, the person throwing it was the author of the mischief. All that was done subsequent to the original throwing, was a continuation of the first force and first act. Any innocent person removing the danger from himself was justifiable; the blame lights upon the first thrower; the new direction and new force, flow out of the first force. He laid it down as a principle, *383 that every one who does an unlawful act, is considered as the doer of all that follows. A person breaking a horse in Lincolns-Inn-Fields, hurt a man, and it was held, that trespass would lie. In Leame v. Bray, (3 East Rep. 595,) Lord Ellenborough said, if I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue, I am answerable in trespass; and if one (he says) put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans.[3]
I will not say that ascending in a balloon is an unlawful act, for it is not so; but, it is certain, that the æronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had excited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the enclosure? I think not. In that case, they would have been co-trespassers, and we must consider the situation in which he placed himself, voluntarily and designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and may have been heard by the crowd; he is, therefore, undoubtedly, liable for all the injury sustained.
Judgment affirmed.
Note 1. This is an action formally brought in trespass rather than negligence or strict liability partly because in 1822, American tort law was still in its infancy and trespass provided a direct means to analyze the invaded interests. However, under the later-published Restatement (Second) of Torts §§ 519 (applying strict liability to ultrahazardous activities) and 520 (defining ultra-hazardous activities), flying an air balloon would now require imposition of strict liability. Indeed, in the comments to Section 520, aviation is provided as a quintessential example though, as the following dicta make clear, that could always change depending on the calculus of risk and available precautions involved in the activity:
[Aviation in its present state of development is ultrahazardous because the best constructed and maintained aeroplane is so incapable of complete control that flying creates a risk that the plane even though carefully constructed, maintained and operated, may crash to the injury of persons, structures and chattels on the land over which the flight is made’ (emphasis supplied). And in comment ‘g’ a distinction is made between airplanes and automobiles, upon the ground that ‘the use of automobiles has become so common to the great mass of inhabitants of the United States and the residuum of risk which cannot be eliminated by careful driving and maintenance is so small that the driving of ordinary types of automobiles is not regarded as ultra-hazardous. On the other hand, aviation has not as yet become either a common or essential means of transportation. This, coupled with the fact that as yet aeroplanes have not been so perfected as to make them subject to a certainty of control approximating that of which automobiles are capable, and with the serious character of harm which an aeroplane out of control is likely to do to persons, structures or chattels on the land over which it flies make it proper to regard aviation as an ultra-hazardous activity.’”) Wood v. United Air Lines, Inc., 223 N.Y.S.2d 692, 696–97 (Sup. Ct. 1961), aff’d sub nom. Wood v. United Air Lines, 226 N.Y.S.2d 1022 (1962)
Note 2. Commentators and later cases often treat the case as having decided the trespass under strict liability. Do you see why, based on the court’s legal reasoning?
Note 3. The defendant tries to distinguish the defendant’s conduct as “involuntary” and the crowd’s as “voluntary,” but the court rejects this. How and why?
Note 4. Do you think the balloonist knew, or should have known this was an outcome that was possible? Or even likely? How might it affect your thinking one way or another?
Check Your Understanding (1-7)
Question 1. True or False: Guille would likely have been decided differently if Guille had not asked a man in Swan’s field for help.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. Why did the court draw the comparison between Guille’s facts and the facts in Shepard, described in the passage below? Select an answer that best captures the function served by the court’s use of this precedent.
“Shepard threw a lighted squib, composed of gunpowder, into a market house, where a large concourse of people were assembled; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the market, when it fell on another standing; from thence, to save the goods of the owner, it was thrown to another part of the market house, and in so throwing it, it struck the plaintiff in the face, and, bursting, put out one of his eyes.”
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 3. A homeowner has a leaky hot water heater and calls an emergency plumber to see whether her hot water tank needs replacing. When the plumber arrives, the homeowner shows the plumber to the water heater, which is located in the garage, and says “Please do whatever you need to do to test, and if necessary, replace the water heater; don’t worry about the cost. I will be in the room across the hall, taking a phone call for work. If you truly need me, please knock on the door and I can answer any questions you have. I’ll be back out in a couple of hours to check on your progress.”
Which of the following is the likeliest to be a technical trespass:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The Tort of Battery
For a plaintiff to succeed in bringing a claim of battery, they will need to prove the following elements:
• unauthorized bodily contact by the defendant, which is
• harmful or offensive in nature, and
• made with intent by the defendant.
Battery is the most significant intentional tort in terms of protecting individual rights to bodily autonomy and freedom from invasions and harms by others. The quintessential element in a civil battery is that it violated the victim’s consent either by being entirely unauthorized or by exceeding the scope of the consent the victim granted the tortfeasor. The conduct doesn’t have to be “harmful” in the sense of leaving bruises or scars; it may be harmful in other ways because it is traumatizing, or precisely because the physical harms are not as readily discernible.
Note that battery does not necessarily require physical harm: the tort does not protect only against harm to the body; it protects the person’s right to decide what can be done to their body. And it doesn’t protect against accidental bumps or jostles in the ordinary course of moving around in today’s often crowded world. But it does provide protection for a person’s physical autonomy, which is a broader interest than mere protection against bruises or broken bones.
Tortious contact may also qualify as “offensive.” While there is undeniably a subjective element here, a plaintiff cannot simply claim any contact at all was offensive; there are some settled cases as well as state laws that tend to define what makes the contact offensive, such as by stating that the contact was done without authorization and with anger or rudeness. Where there is no lasting or discernible harm so as to make the contact “harmful” but it is provably “offensive,” a court may order “nominal damages.” These are damages in name only, or damages not designed to compensate monetarily but instead to provide an official recognition of the invasion of the plaintiff’s bodily autonomy and to deter future wrongdoing. While one could argue that nominal damages are not worth the costs of litigation, they remain an important way of signaling the boundaries of duties and rights between parties. Sometimes nominal damages may be accompanied by payment of legal fees to the winning party, which can make a significant difference.
The following hypothetical provides an illustration.
Hypothetical: Wrong Ear Surgery Problem
In the early 1900s, an experienced and reputable ear doctor saw a woman complaining of a problem in her right ear. As is customary, he examined both ears. He couldn’t make a full diagnosis of the left ear (“owing to foreign substances therein.” Consider yourselves warned: tort law will often feel a little TMI). The right ear revealed that there was a perforation in the lower portion of the drum membrane and a large polyp in the middle ear which indicated that some bones of the middle ear were probably diseased. The patient was nervous about undergoing general anesthesia, which remains risky even today but was riskier still at that time. After consulting with her family doctor, who agreed to be in the room during the surgery, and after several other consultations with the surgeon who would repair her right ear, she agreed to go forward with the surgery. During the surgery, when he could get a better look at it, the surgeon discovered that the right ear wasn’t in need of the surgery, but the left ear was. The surgeon showed the family doctor, who agreed with this assessment, and then the surgeon went ahead and performed skillful surgery on the left ear. After the surgery, the patient was upset to learn that the surgery had not been done as scheduled on her right ear, and had happened instead on her left ear, which had not been described to her as diseased in any way before that. She complained of new pain and hearing problems apparently not present before the surgery, or at least not serious enough for her to bring them to her doctor then. She sued for battery, but not medical malpractice.
Practice applying the elements of battery (listed above). Can you see why there is a battery here?
Note 1. This hypothetical fact pattern was based on a classic torts case that is still the leading case nationally on consent to unauthorized operations. Mohr v. Williams, 95 Minn. 261 (Minn. 1905). The court ruled in Mohr’s favor, finding a battery and awarding Mohr \$14,322.50, a huge sum in that era. The surgeon successfully appealed the damages award, and the new trial produced the considerably lower award of \$39 for the plaintiff. (The opinion was later overruled on a narrow issue pertaining to damages in Genzel v. Halvorson, 248 Minn. 527 (1957).)
Note 2. Ms. Mohr’s original damages award, of \$14,322.50 would equal \$417,295.80 in today’s currency, using a basic tool to account for inflation.[4] Similarly, \$39 in U.S. dollars from 1905, when Mohr was decided, is roughly equivalent to \$1,136.29 in 2020 U.S. dollars. When adding the expenses of hiring counsel to bring not just one, but two lawsuits, including an appeal of the first, does this seem like a fair outcome? Recall that the court found there was a battery “on the merits” (on the legal question at issue), but also that there did not appear to be any errors or lack of skill by the surgeon.
Note 3.Mohr’s reasoning, included below, helps demonstrate the interests protected by the tort of battery. The court emphasized the law’s commitment to a patient’s right to bodily autonomy, including making medical decisions for themselves:
This particular question is new in this state. At least, no case has been called to our attention wherein it has been discussed or decided, and very few cases are cited from other courts. We have given it very deliberate consideration, and are unable to concur with counsel for defendant in their contention that the consent of plaintiff was unnecessary. The evidence tends to show that, upon the first examination of plaintiff, defendant pronounced the left ear in good condition, and that, at the time plaintiff repaired to the hospital to submit to the operation on her right ear, she was under the impression that no difficulty existed as to the left. In fact, she testified that she had not previously experienced any trouble with that organ. It cannot be doubted that ordinarily the patient must be consulted, and his consent given, before a physician may operate upon him.
It was said in the case of Pratt v. Davis…: ‘Under a free government, at least, the free citizen’s first and greatest right, which underlies all others—the right to the inviolability of his person; in other words, the right to himself—… necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, the bodily integrity of his patient by a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge.’
1 Kinkead on Torts, § 375, states the general rule on this subject as follows: ‘The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal one, Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate.’
There is logic in the principle thus stated, for, in all other trades, professions, or occupations, contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between physician and patient. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the consent given, but no further. It is not, however, contended by defendant that under ordinary circumstances consent is unnecessary, but that, under the particular circumstances of this case, consent was implied; that it was an emergency case, such as to authorize the operation without express consent or permission.
The medical profession has made signal progress in solving the problems of health and disease, and they may justly point with pride to the advancements made in supplementing nature and correcting deformities, and relieving pain and suffering. The physician impliedly contracts that he possesses, and will exercise in the treatment of patients, skill and learning, and that he will exercise reasonable care and exert his best judgment to bring about favorable results. The methods of treatment are committed almost exclusively to his judgment, but we are aware of no rule or principle of law which would extend to him free license respecting surgical operations. Reasonable latitude must, however, be allowed the physician in a particular case; and we would not lay down any rule which would unreasonably interfere with the exercise of his discretion, or prevent him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency.
Note 4. Ms. Mohr continued to complain of pain in her left ear. Should tort law be the source of her remedy, and if so, why? What does your answer depend on?
Note 5. What sorts of additional facts do you think might have made it reasonable for Dr. Williams to operate on Ms. Mohr’s left ear, even without her consent?
Note 6. Do you see why this is not a medical malpractice case?
Note 7. What do you imagine are the consequences of a ruling like this, in terms of physician behavior and the practices adopted by institutions such as hospitals?
Check Your Understanding (1-8)
Question 1. True or false: Trespass and battery are both intentional torts which require plaintiffs to show harm.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. True or false: Trespass and battery are both intentional torts which can attach to behavior even when the plaintiff provided consent, if the conduct ultimately exceeds the scope of the plaintiff’s consent.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
(1 W.W.R. 714)
The plaintiff’s claim is for professional fees for an operation involving the amputation of the defendant’s hand which was badly injured in a motor-car accident. The accident took place near the town of Cardston and the defendant was taken to the hospital there. The plaintiff, a physician and surgeon duly qualified to practice, was called to the hospital and the defendant, being a stranger and unacquainted with the plaintiff, asked him to fix up his hand but not to cut it off as he wanted to have it looked after in Lethbridge, his home city. Later on in the operating room the defendant repeated his request that he did not want his hand cut off. The doctor, being more concerned in relieving the suffering of the patient, replied that he would be governed by the conditions found when the anaesthetic had been administered. The defendant said nothing. As the hand was covered by an old piece of cloth and it was necessary to administer an anaesthetic before doing anything, the doctor was not in a position to advise what should be done. On examination he decided an operation was necessary and the hand was amputated.
Dr. Mulloy said the wounds indicated an operation as the condition of the hand was such that delay would mean blood poisoning with no possibility of saving it. In this he was supported by the two other attending physicians. I am, however, not satisfied that the defendant could not have been rushed to Lethbridge where he evidently wished to consult with a physician whom he knew and relied on. Dr. Mulloy took it for granted when the defendant, a Chinaman without much education in English and probably not of any more than average mentality, did not reply or make any objection to his statement that he would be governed by conditions as he found them, that he had full power to go ahead and perform an operation if found necessary. On the other hand, the defendant did not, in my opinion, understand what the doctor meant, and he would most likely have refused to allow the operation if he did. Further, he did not consider it necessary to reply as he had already given explicit instructions.
Under these circumstances I think the plaintiff should have made full explanation and should have endeavoured to get the defendant to consent to an operation, if necessary. It might have been different if the defendant had submitted himself generally to the doctor and had pleaded with him not to perform an operation and the doctor found it necessary to do so afterwards. The defendant’s instructions were precedent and went to the root of the employment. The plaintiff did not do the work he was hired to do and must, in my opinion, fail in his action.
The defendant has counterclaimed for damages in the sum of \$400, being \$150 for an artificial hand and the balance for loss of wages due to the operation and possibly general damages.
In my opinion the operation was necessary and performed in a highly satisfactory manner. Indeed, there was no suggestion otherwise. The damage and loss and the cost of an artificial hand are the results of the accident and not the unauthorized operation. The defendant, however, is, in my opinion, entitled to damages because of the trespass to the person, which at the same time became trespass ab initio, having in mind the old case of The Six Carpenters (1610) 8 Co. Rep. 146a, 77 E.R. 695. The damages are per se and should be more than nominal. Personally, I in a similar position might have been able to satisfy myself that the operation was necessary, and that I should be glad to pay the reasonable fee charged, but it was not my hand and the defendant will always no doubt feel that he might have saved the hand if he had consulted with a doctor he knew. While I might have been able to forego my rights, I cannot ask the defendant to do so and he is entitled to rely on his rights. There also must have been some shock to him when he found out his hand had been taken off in the manner in which it was, over and above the ordinary shock from an operation. His damages, should, therefore, be substantial but only sufficient to make them substantial rather than nominal. I place the amount at \$50.
The action is dismissed with costs and the defendant is entitled to his costs of the counterclaim.
Note 1. Using the same inflation calculator and basic assumptions, the \$50 Hop Sang was awarded for his wrongfully removed hand in 1822 produces a value of roughly \$921.62 in today’s Canadian dollars.[5] Even if we assumed Sang had been awarded \$10,000 in today’s Canadian dollars, do you think that would provide adequate compensation for the injury? Why or why not? Is there a number at which your answer changes?
Note 2. The judicial voice speaks for Sang at several points, imagining what the plaintiff might have thought or felt and distinguishing his own views (“Personally, I in a similar position… but it was not my hand”; “While I might have been able to forego my rights, I cannot ask the defendant to do so”). Why do you think he does not cite to the plaintiff’s own testimony on these issues? What other observations do you have about the way the court describes both the plaintiff’s views and his own about the surgery?
Exam Tip: In the case of both trespass and battery, often the conduct in question qualifies as a violation because it exceeds the scope of consent. For instance, at the end of a dinner party, a guest leaves, but secretly sits in the driveway, just out of sight of the hosts, to sober up before driving. Technically, the social event has ended, and their permission to remain on the host’s land is unclear. Or to take another example, a romantic partner usually allows their partner to hold their hand all the way through the movie but doesn’t want to this time. The attempt to withdraw the hand signals that consent is withdrawn and a second attempt to shake free of the grip, when their partner is still holding onto their hand, makes that desire clear: any remaining contact from that point is technically a battery. Sometimes such instances may be called technical trespass or a technical battery, for which, as noted above, the damages may be nominal or minimal (depending on the precise facts). But the liability will still attach even if the damages are low or non-existent.
The Tort of Assault
Like the tort of battery, the tort of assault must be kept distinct from its criminal counterpart. In the civil context, to bringing a successful claim of assault, the plaintiff will need to prove the following elements:
• an act, or threat of an action
• done with intent, that
• creates in the plaintiff a reasonable apprehension of
• imminent bodily harm
The scope of the tort has been critiqued for what it recognizes and excludes. The tort was intended to be construed narrowly, a true protection against harm almost immediately upon the victim, and thus many threats that promise harm in the future fall outside the scope of the tort by failing the imminence requirement. Later in the course, you will learn about the prospect of recovering for emotional damages or distress suffered without accompanying physical injuries. For now, the focus is on “fright” or more precisely, on awareness of harm that is imminent and reasonably perceived, not merely imagined.
A Note on Terminology: “Objective” versus“Subjective.” When the law uses the word “reasonable,” it is signaling its use of an objective standard. The legal meanings of “objective” and “subjective” differ from the lay meanings. Ordinarily, subjective means “influenced by personal feelings or tastes; emotional or intuitive.” Objective means not influenced by personal feelings or tastes; impersonal; fact-based; unbiased; nonpartisan; disinterested or even scientific. In law, however, subjective means particularized to the person in question; objective means abstracted to a generalized level: what would the reasonable person have felt or done under such circumstances, rather than what the plaintiff himself actually felt or did. This distinction between objective and subjective states of mind or assessments of conduct will grow in importance throughout your study of tort law. For instance, the intent standard for the intentional torts is subjective: we care what this particular defendant thought or knew when they acted. In assault, the apprehension of imminent bodily harm is objective: would an ordinary reasonable person have been placed in apprehension of harm? This allows tort law to exclude from protection someone overly sensitive who would qualify under a subjective standard (tailored to that individual) but who cannot recover if reasonable people would not share the apprehension under those circumstances.
Most significantly of all, negligence is determined using an objective standard: it uses a general measure based on classes of people (physicians, blind people, adults, elderly or very young people) rather than a particular defendant: what would a reasonable person have done under the circumstances, not what did this defendant believe was reasonable to do under the circumstances? Negligence broadens its scope of liability by asking not just what the plaintiff knew or did but what the reasonable person would have known or would have done. In some instances, a given tort or rule will incorporate both perspectives. For example, in battery, the perspective for whether contact is offensive is first objective: would the reasonable plaintiff find the contact offensive, not whether this plaintiff did? Once that hurdle is cleared, it is also necessary to determine whether the plaintiff did in fact find it offensive. Contact must be objectively considered offensive, at a minimum as well as subjectively, by this plaintiff, considered offensive. The rationale is straightforward: if you’re insensitive and didn’t mind the contact but know others would find it offensive, tort law does not permit you to receive a windfall by suing for something you happened not to mind. Most students find the objective/subjective distinction confusing at first but eventually manageable, partly because it’s a concept they will see over and over in torts and in other classes in their first year and beyond.
Questions for the Readings
As you read the next few cases, please keep the following questions in mind:
• What interests is tort law seeking to protect? Against what sorts of harms or invasions, and by whom or what? Note where you see courts describing the interests they are protecting (or declining to protect) and put in your own words how the court justifies its decision.
• What sorts of limits can you identify in the law’s protection of these interests? How does—and how should—the law draw these limits? Why are such limits necessary?
• In what ways do these legal rulings illustrate, entrench or subvert power dynamics or social status in our society? In what ways could they be amended to create new possibilities?
• If you do not see either entrenchment or possibilities for change, would any of the cases read differently for you if the age/gender/race/ability/sexual orientation/general identity of one or more of the parties changed? Would the situation strike you as different if a corporation, instead of an individual, were one of the parties?
Background Tort Doctrines: The Common Carrier Doctrine and Vicarious Liability
Two legal doctrines will be helpful to your reading of the next case, Gulf, Colorado & Santa Fe Railway Co. v. Luther.
First, the “common carrier” doctrine historically applied to companies engaged in the transportation of customers from place to place for compensation (such as public railroads, bus lines, taxi companies, airlines, cruise ship lines, or other similar entities). Tort law has traditionally imposed a higher standard of care on common carriers in order to protect consumers, though this has varied by state and been eroded somewhat over time. In New York, for instance, there is no longer a heightened duty; common carriers owe the same duty of “reasonable care” as any other possible tortfeasors. But in the era before meaningful consumer protection laws arose in the first decades of the twentieth century, this heightened duty was an important means of ensuring passengers’ safety and comfort.
Second, under the “vicarious liability” doctrine, an employer is responsible for the tortious conduct of their employees while the employees are working “within the scope of their employment.”
This generally means that employers are liable for their employees while employees are engaged in work-related acts and efforts during work (and thus excludes bad behavior or carelessness outside of work or actuated by personal rather than professional motivations). Vicarious liability is a very important doctrine that you will see again several times in this course, especially with respect to negligence and how to consider the effects of potentially having multiple parties at fault. It is also significant in a number of upper-division courses, so it’s spending time dividing a bit more deeply into its origins, purposes and scope before proceeding.
Introduction to Vicarious Liability
Vicarious liability allows victims of tortious conduct to recover against the employer for the conduct by their employee under certain circumstances. The ability to pursue a case against the employer—who is almost always the party with the “deepest pockets” or greatest capacity to remunerate the plaintiff for their losses—is often of profound benefit to the victim. As this doctrine was developing in 18th-century England, jurists labeled it with the Latin phrase, “respondeat superior,” roughly meaning “let the person in the position of higher power respond” for the wrongdoing of the person in their employment or supervision. The terms used to characterize labor relations were “master” and “servant,” rather than the more modern employer and employee or principal and agent.[6]
Vicarious liability can be taught at many different points in an introduction to tort law, because it plays a role in so many cases, and it is not limited to one kind of tort. One way to understand its effect, however, is to consider it a form of strict liability: the employer is not necessarily at fault but under the doctrine, liability is allocated to the employer anyway, by virtue of the relationship between employer and employee. Note that it is often possible for an employer also to be separately at fault: consider the following scenario.
Pizza Delivery Hypothetical. A delivery driver is the employee of a restaurant and drives negligently—under the influence of hallucinogenic drugs—while delivering one of their pizzas. When the driver causes a car accident that injures someone, the employer would ordinarily be vicariously liable for the victim’s injuries because the driver is an employee acting in the scope of employment. This would be the case even if the restaurant (or its owners) displayed no fault with respect to the accident. (In this scenario, we are assuming that the employer isn’t driving or present or directly involved.) Tort law allocates vicarious liability to the employer for their employees’ actions so long as the employee’s actions occur within the scope of employment. To prevail on this claim, a plaintiff would need to prove: 1) that the driver was an employee (as opposed to an independent contractor or a driver who made unauthorized use of a company vehicle, such as a thief); and 2) that the accident happened during the scope of employment (that is, not outside work or after work, such as during a lunch break or commuting to and from home, even if driving a corporate vehicle) and 3) that there was negligence on the part of the employee, that is, that the employee had a duty of reasonable care that they breached, thus causing the plaintiff’s harm. If negligence analysis fails on some element with respect to the employee’s conduct, the plaintiff will not have a vicarious liability claim against the employer.
However, an alternate (or additional) theory of liability might seek to show that the employer’s hiring, training or retention was negligent. This would not be a vicarious liability claim but a separate claim seeking to prove something else. Perhaps the employer overlooked a prior record of DUI’s that a background check could have brought to light (which might constitute negligent hiring); or failed to make its rules and policies clear (which could constitute negligent training and supervision); or failed to fire the driver after the company discovered he routinely had been delivering their product while stoned (which would constitute negligent retention). Just because a vicarious liability claim is unavailable does not mean that all is lost for a plaintiff, and conversely, merely establishing that a vicarious liability claim might exist is not dispositive of whether a negligence claim is available against the employer. The two are independent of each other and indeed, as this hypothetical shows, the two kinds of claims focus their inquiries on the behavior of different entities.
The most common examples of vicarious liability in tort law arise in negligence but it is possible for employees to commit intentional torts while serving their employer (such as when a bouncer commits a technical battery by escorting a patron out of a nightclub but accidentally harms the patron, for instance). More commonly, employee conduct that is intentionally tortious falls outside the employer’s responsibility. The key, again, is if the employee is acting within or outside “the scope of employment.” The Restatement (Second) of Agency Sec. 237 lays out the factors to consider in determining whether something falls within the scope of employment (and it uses the old language of the common law, “master” and “servant”):
To be within the scope of employment, an act must be of the sort authorized, done within space and time limits fixed by the employment and accompanied by an intention to perform service for the master. See §§ 233-236. If, having in mind either his master’s business and his own, or only his master’s business, the servant departs too far from the space or time limits, he no longer acts within the scope of employment.
These principles are widely applied in tort law with respect to employers and their employees as well as “principals” and their “agents,” which permits a broader scope of potential liability than if the rule were applicable only to employers and employees. There is an entire Restatement for the law of agency, in fact, because the concept of agency plays a significant role in corporate law, partnership law, and employment among others. Vicarious liability does not typically apply to the work of contractors one hires. Put in the form of a rule: a hiring party is not vicariously liable for the torts of their independent contractor.
Exam Tip: A vicarious liability claim always requires an underlying act of tortious conduct. If there is no tort (because the elements are not met or because there is a successful defense), then you need not reach the issue of vicarious liability. Vicarious liability is not a rule that determines liability based on conduct; it’s a rule that allocates liability based on a pre-existing determination of liability (if the tests for vicarious liability are met). Always be sure to identify the underlying tort first, and then consider whether vicarious liability will apply to it. Do not forget to ask, additionally or instead, whether the employer is liable on the basis of their own conduct.
The rule that hiring parties are not liable for the torts of their independent contractors has numerous rationales. Unlike employees, independent contractors are generally thought to stand on their own, financially and legally. They are usually entities with their own insurance (“licensed, bonded and insured” may be a phrase you have heard), and they are likely to possess the desire and capacity to control their own processes. Thus, they have the incentives to optimize for caution and efficiency. They are also deemed (presumptively) to possess skill and training in their field. These factors tend to mean that tort law’s purposes are served by fixing liability for their conduct with the independent contractors themselves. However, courts are concerned that parties might attempt to contract so as to characterize their working relations as hiring party/independent contractor, rather than employer/employee, in an attempt to evade liability. In fact, this points to a larger policy concern. When you take business organizations, you will learn that there is an ongoing concern about strategic behavior, such as deliberate undercapitalization to enable parties to claim they are “judgment proof,” or otherwise structuring entities and business practices to evade the liability that tort law’s principles would ordinarily allocate following traditional rules and doctrines. Corporate law has developed many means of trying to forestall this strategic behavior, and courts may “pierce the corporate veil” to look through whatever structures entities are using in their potentially unlawful behavior. Somewhat similarly, in torts cases, courts may “look through” contracts that treat parties as independent contractors if those appear to be suspicious. The Restatement of Agency provides guidance on how to assess hiring relationships and when to determine that there is, in fact, an employer/employee relationship, whatever the parties might have attempted to create. It does so, in part, by defining the relationship in terms of actual control or the right to control.
Scope of Employment—Restatement (Second) of Agency § 220. Definition Of Servant
(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
Note: The Restatement (Second) of Agency has been superseded by the Restatement (Third) of Agency, published in 2006. Nonetheless, courts continue to cite to precedents that incorporated the factors from the earlier Restatement, which means that you will continue to encounter case law that reflects some version of these factors. Not all of them are necessarily mentioned in each case (and you should not feel the need to apply all 10 of them on an exam question!) Often, courts pick the ones most salient to apply to the facts at bar. This is a good example of how law school requires you to gain substantive knowledge and also to develop judgment about which things you know are most helpful or relevant in a given moment.
Check Your Understanding (1-9)
Question 1. A motorcyclist, Mo, is injured in a collision by a van driven by Drye. Drye was negligent in his driving and the only one at fault in the accident. Drye delivers newspapers under a contract with The Arizona Herald, a large state-wide news publication.
Which of the following statements below most support Mo’s attempt to hold the Herald vicariously liable for Drye’s negligent driving?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
(40 Tex.Civ.App. 517)
This suit was brought by appellee to recover damages for an alleged insult to his wife, made by a negro woman while in appellant’s employ as a waitress in attendance on the ladies’ waiting room in the passenger station of appellant at Ft. Worth, Tex., and for alleged nervous prostration of appellee’s wife caused by such insult. The appellant answered by a general denial, and specially that the negro woman was provoked to say what she did by opprobrious epithets addressed to her by appellee’s wife. The trial of the cause resulted in a verdict and judgment against the appellant for \$2,500.
Conclusions of Fact.
It is undisputed that appellant owns and operates a line of railroad extending through Hunt county to Ft. Worth, Tex., and another line of road extending from Ft. Worth to Morgan, Bosque county, Tex.; that it is, and was in August, 1903, a common carrier of passengers using said lines of railway for such purpose; that during the month of August of the year aforesaid appellant, in connection with other common carriers of passengers, was in possession, control, and use of a depot building on its roads in Ft. Worth, Tex., for the use and accommodation of its passengers, in which there was a waiting room set aside for the reception of its lady passengers and children;[7] that this room was then entrusted by appellant to a negro woman in its employ, the duties of whose employment were to keep the room clean and in good order for its passengers, attend their wants, and minister to their comfort while awaiting passage on its trains; that in the latter part of June, 1903, the plaintiff, with his wife and four small children, having become passengers over appellant’s said lines of road from a station in Hunt county to Morgan, Tex. (the latter station being their destination), arrived at its depot in Ft. Worth about 7 o’clock in the morning for the purpose of taking one of its trains, which was due at 7:50 o’clock that morning; that plaintiff, being informed that the train was late, left his wife and children in the waiting room for women and children which was in charge of the negro woman in appellant’s employ charged with the duties aforesaid, and went out into the city to attend some matters of business.
The evidence is reasonably sufficient to prove that during plaintiff’s absence from the depot the negro woman, while in the discharge of her duties, became very angry about one of the plaintiff’s little children accidentally spilling from a cup some water on the floor, and when informed by the child’s mother, plaintiff’s wife, the spilling of the water by the child was unintentional, because the child did not know the water was in the cup, the negro woman turned upon Mrs. Luther, and what was said and done had best be told in her language: “When I told the negro woman that the child didn’t know the water was in the cup, she turned on me with an angry look, and said, ‘The child did know the water was in the cup,’ and I told her that the child did not know that the water was in the cup. Then she said to me, ‘If you say the child did not know that the water was in the cup you are a liar.’ I then said to her, ‘I have not been accustomed to be treated this way by colored people.’ She then replied: ‘I am used to your kind. I meet up with them every day.’ During the conversation she was standing right over me, shaking her finger right in my face, and looking vicious and angry. She stood over me about five minutes, and said many things to me that I cannot remember, as I was very much frightened at the time.” The negro woman testified differently as to what occurred, but, as the testimony of Mrs. Luther is corroborated by other circumstances, and as the jury from its verdict evidently believed her narration of the occurrence, we find it is true that Mrs. Luther, in consequence of the abuse and ill-treatment by the negro, was greatly frightened, humiliated, worried, and distressed, causing her nervous prostration, physical pain, and mental anguish, to plaintiff’s damage in the amount found by the verdict.
Conclusions of Law.
The first assignment of error[8] complains of the court’s overruling defendant’s amended motion for a new trial, upon the ground that the verdict is contrary to the law and evidence and is excessive, in that it fails to show that the sickness and physical pain suffered by Mrs. Luther were proximately caused by the negligence of defendant. The outrageous conduct and language of the negro woman, whether denominated negligence or not, were, because done by her as appellant’s servant and while in the discharge of the duties of her employment, acts for which the appellant as a common carrier of passengers is responsible and liable to plaintiff for all the damages proximately flowing therefrom. That plaintiff’s wife suffered insult and indignity at the hands of appellant’s servant, and was treated disrespectfully and indecorously by her under such circumstances as to occasion mental suffering, humiliation, wounded pride, and disgrace, there can be little doubt. At least the jury might have so found from the evidence before them. And if it should be conceded that she suffered no physical injury or sickness in consequence, still the appellant would be liable for the consequences of such wrongs done to a passenger.
In considering the duties of carriers to their passengers, Hutchinson on Carriers, §§ 595, 596, states the rule as follows: “The passenger is entitled, not only to every protection which can be used by the carrier for his personal safety, but also to respectful treatment from him and his servants. From the moment the relation commences, as has been seen, the passenger is in a great measure under the protection of the carrier, even from the violent conduct of other passengers, or of strangers. … The carrier’s obligation is to carry the passenger safely and properly, and to treat him respectfully; and, if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult from whatsoever source arising. He is not regarded as an insurer of his passengers’ safety against every possible source of danger, but he is bound to use all such reasonable precaution as human judgment and foresight are capable of to make his passengers’ journey safe and comfortable. He must not only protect his passengers against the violence and insults of strangers and co-passengers, but, a fortiori, against the violence and insults of his own servants. If his duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted through the negligence or the willful misconduct of the carrier’s servant, the carrier is necessarily responsible. And it seems to us it would be a cause of profound regret if the law were otherwise. The carrier selects his own servants, and can discharge them when he pleases, and it is but reasonable that he should be responsible for the manner in which they execute their trust.”
Thompson on Negligence, § 3186, after stating the above rule, adds: “The carrier is liable absolutely, as an insurer, for the protection of the passenger against assaults and insults of his own servants, because he contracts to carry the passenger safely and give him decent treatment en route. Hence, an unlawful assault or insult to a passenger by his servant is a violation of his contract by the very person whom he has employed to carry it out. The intendment of the law is that he contracts absolutely to protect his passenger against the misconduct of his own servants whom he employs to execute the contract of carriage. The duty of the carrier to protect the passenger during the transit from the assaults and insults of his own servants being a duty of an absolute nature, the usual distinctions which attend the doctrine of respondeat superior cut little figure in the case.”
In Elliott on Railroads, § 2579, treating upon this subject, it is said: “It is not merely a question of negligence in such cases, nor is it strictly a question depending upon the scope of the servants’ particular employment. It is a question of the absolute duty of a railroad company to its passengers as long as the relation subsists, and a breach of that duty on its part, whether caused by the willful act of an employe or not. A carrier is bound to discharge the implied duty, arising out of its contract and imposed by law, that its passengers shall be protected from injury by its servants and shall not be willfully insulted and harmed by them; and, if it commits the discharge of this duty to an employe, it may well be held to do so at its peril, notwithstanding the exercise of care on its part in selecting the servants. Either the company or the passenger must take the risk of infirmities of temper, maliciousness, and misconduct of the employes whom the company has placed upon the train and to whom it has committed the discharge of its duty to protect and look after the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is therefore but just to make the company, rather than the passengers, take this risk, and to hold it responsible. This leads to the conclusion that a railroad company is liable for an injury willfully inflicted upon a passenger by an employe while engaged in performing a duty which the carrier owes to the passenger, or in executing the contract, although the company is guilty of no negligence *522 in selecting them and such act was not strictly within the scope of their employment or line of their duty, in the sense that it was done for the carrier or arose out of the performance of their particular duty.” See also, Traction Co. v. Lane (Tenn.Sup.) 53 S.W. 558.
This rule is strictly observed in this state. In Dillingham v. Russell, 73 Tex. 51, it is said: “The rule,” referring to the principle that the master is not ordinarily liable for an injury resulting from the willful and malicious acts of his agent not done in the course of his employment, “however, cannot be applied in a case in which the master by contract, express or implied, is under obligation to protect the injured person from the servant’s wrongful act as well as his own. Where a duty is thus imposed on the master, for whose acts, whether of omission or commission, resulting in injury to the person entitled to have the duty performed, the master must be held as fully responsible and liable to make at least actual compensation as though the act were his own personal act. In such cases, if the servant does what the master could not suffer to be done without violation of the particular duty resting upon him, or if the servant omits to do that requisite to the full discharge of the master’s incumbent duty, then the master must be held responsible for the servant’s wrongful or malicious act or omission, for otherwise it would result that a master might relieve himself from obligation to perform a duty fixed by contract, or otherwise, by the employment of servants to conduct the business to which the duty attaches. The master’s obligation cannot thus be avoided, and whether the servant’s act violative of the master’s duty be willful or malicious is a matter of no importance in determining the liability and obligation of the master to make actual compensation to the injured person. It has been steadily held to be the duty of carriers of passengers to protect them, in so far as this can be done by the exercise of a high degree of care, from the violence and insults of other passengers and strangers, and to protect them from the violence and insults of the carrier’s own servants, and the inquiry whether this duty arises from contract or from the nature of the employment becomes unimportant, except that the duty goes with the carrier’s contract, however made, whereby the relation of carrier and passenger is established.” [cc]
The case of Texas & Pacific Ry. Co. v. Jones (Tex.Civ.App.) 39 S.W. 124, is one where the plaintiff’s wife, who was in defendant’s depot for the purpose of taking passage on one of defendant’s trains, was insulted by the wife of the ticket agent, but suffered no physical injury in consequence, and the question presented was whether the husband could recover damages for her mental suffering. It was held that it was the duty of appellant’s station agent to protect her from insult and abuse from all persons while she was at its station waiting to become a passenger on its train, and she had the right to recover for a breach of such duty whether she received physical injuries or not. In the case of *523 Houston & Texas Central Ry. Co. v. Perkins (Tex.Civ.App.) 52 S.W. 124, where the plaintiff and his wife were passengers in a Pullman sleeper attached to one of defendant’s trains, and, at night, the defendant permitted drunken men to enter the coach where plaintiff and his wife had retired, allowing the drunkards to remain and use profane and indecent language, which caused the wife mental anguish and loss of rest, this court held, in an opinion by Justice Fly, that the husband was entitled to recover damages though his wife sustained or suffered no physical injuries. See, also, M., K. & T. Ry. Co. v. Ball (Tex.Civ.App.) 61 S.W. 327. The case of I. & G.N. Ry. v. Henderson (Tex.Civ.App.) 82 S.W. 1065, is one where a negro passenger, with the knowledge of the conductor, was vilified and made to dance for the amusement of the passengers by several drunken rowdies, who had entered the train; and, though the evidence failed to show that he suffered any physical injuries, a verdict against the railway company for \$1,000 damages on account of his humiliation, mortification, and fright was affirmed on appeal. See, also, Quinn v. L. & N. Ry. Co. (Ky.) 32 S.W. 742.
We have quoted the foregoing elementary principles and cited cases falling under them for the purpose of demonstrating that the liability of a common carrier for insults by its servants causing humiliation, a sense of disgrace, mental anguish, or fear in a passenger is independent of physical injury or bodily harm; and that such liability does not depend upon the negligence of the master in employing the servant, or the scope of his authority, if the insult is given while employed about his master’s business.
It being established by the decisions of this state that mental suffering is an element of damages, where it results from a breach of the carrier’s contract or duty, though no physical injury may have been sustained, and, as the evidence in this case shows plaintiff’s wife suffered mental anguish from the consequence of such breach, which was also a tort, it was for the jury to determine the quantum of damage. In such a case the law does not undertake to, nor can it, exactly measure his damages, but it authorizes the jury to consider the injured feelings of the party, the indignity endured, the humiliation, wounded pride, mental suffering, and the like, and to allow such sum as it may determine is right. When this is done, unless the verdict is palpably wrong, after it has been approved by the trial court, it is not the province of an appellate tribunal to disturb it.
What could be more humiliating to a frail, delicate, sensitive woman, with a babe at her breast and her other little ones around her, than to be pounced upon, vilified, and traduced by a negro servant in a railway depot, where her relation as passenger to its owner entitles her to be treated with respect and kindness? Is it any wonder to those who can contemplate the effect of such an outrage that the poor woman for months afterwards, as she testified, could not close her eyes without that angry, threatening negro arising before her and murdering sleep? In G., C. & S.F. Ry. Co. v. Trott, 86 Tex. 412, the Supreme Court says: “That a physical personal injury may be produced through emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind *524 than by direct physical means affords no sufficient grounds for refusing compensation in an action at law, where the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause of injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had.” It was for the jury to say from the evidence whether plaintiff’s wife, in consequence of the outrage inflicted upon her by appellant’s servant, suffered from nervous prostration and sickness, and there being evidence to support its finding, we deemed it our duty to make our conclusions of fact conform thereto, and, in view of the evidence and the principles of law above enunciated, to conclude that the verdict is not excessive. This disposes of the first and second assignments of error.
[Editor’s note: The third assignment of error is omitted here.]
The fourth assignment complains that the court erred in not sustaining defendant’s objection to that part of the answer of Mrs. Luther *525 to the sixth interrogatory which is as follows: “The little girl May was very much frightened, and said ‘Mamma, let’s get out of here’”—because such part of the answer was immaterial, irrelevant, and hearsay. *** However, we have no doubt that this part of the answer was admissible in evidence as part of the res gestae,[9] and for that reason distinguishable from hearsay. For the appearance and exclamation of the child was when the negro was standing over and abusing her mother, and were indicative of the woman’s action and language, and tended to show her violent and outrageous conduct toward plaintiff’s wife. [cc]
The testimony complained of in the fifth, sixth, and seventh assignments was admissible in evidence under the rule that, where the bodily and mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are original evidence. If they are the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its existence. And whether they were real or feigned is for the jury to determine. [cc] And a witness may testify that another person seemed to be sick, suffering, nervous, or in good or bad health. [cc]
While the rule, expressed in the court’s charge, that “railway companies are not insurers of the safety and comfort of their passengers, but are required to exercise that high degree of care that very cautious and prudent persons would have exercised under the same or similar circumstances, and a failure to do so is negligence,” may not be strictly applicable to a case of this character, its being given in the charge [to the jury] could not have possibly prejudiced the defendant, since in a case like this the common carrier is absolutely liable for injuries unlawfully and wrongfully inflicted by his servant on a passenger.
There is no error in the judgment, and it is affirmed.
Note 1. What is the tortious harm here?
Note 2. What do you note about how the court describes the dynamic between the two women?
Note 3. What is the purpose of making an employer vicariously liable for the kind of dynamic described here? What effect will a ruling like this one have in the workplace?
Note 4. The principal case mentions a prior case, International & G.N.R. Co. v. Henderson, in which “a negro passenger, with the knowledge of the conductor, was vilified and made to dance for the amusement of the passengers by several drunken rowdies, who had entered the train.” The paragraphs below, excerpted from International & G.N.R. Co, provide further details on the experience of Mr. Henderson, the African-American plaintiff targeted by drunken passengers.
International & G.N.R. Co. v. Henderson, Court of Civil Appeals of Texas (1904)
(82 S.W. 1065)
[***] [A]ppellee was a passenger on one of appellant’s passenger trains from San Antonio to Austin, and further alleged: That during the time that said passenger train was on its way to Austin from San Antonio, and while plaintiff was on the train as a passenger, seated in the car set apart for the use of colored passengers (plaintiff being a colored man), the said car was invaded by several intoxicated or partially intoxicated white men, to plaintiff unknown, who made use of said car set apart for the use of colored passengers as a smoking car; said unknown white men were rude, boisterous, vulgar, and profane, cursing and swearing in the presence of plaintiff and several colored women, among whom was the wife of the plaintiff. The plaintiff remonstrated with the white men who had invaded the car set apart to the colored passengers, and was then abused, cursed, and vilified in the most vulgar and indecent language, and was marched through the train at the point of pistols held in the hands of the white men, and compelled to get off said train at the first station through which the plaintiff passed. That he caught the last car on the train after being compelled to get off, and once more seated himself as a passenger on the passenger train of defendant, but was again seen by the crowd of white men, as hereinbefore alleged, and was again cursed and vilified by said crowd of men, and compelled to march through the train at the point of pistols, and made to dance for the amusement of fellow passengers, searched, and again compelled to get off the train at the first station through which the passenger train passed; and then the plaintiff appealed to the conductor of said train for protection, informing the conductor that he was a passenger, and entitled to protection as a passenger. The conductor informed the plaintiff that he could do nothing for him, and for him (the plaintiff) to get on the blind baggage car. That he then again got upon the train, but the same crowd of white men compelled him, at the point of pistols, to again walk to and fro through the train, and when the train reached the station of Buda the plaintiff was compelled to get off and leave said train at the point of pistols and in fear of his life, and was not allowed by said crowd of white men to again get upon the train. That the plaintiff appealed to the conductor and the other trainmen in control of the train, but he was told that they could do nothing for him. That, after being compelled to get off the train at Buda, he walked to Austin, a distance of 12 miles, arriving next morning, as it was night when plaintiff was put off and required to leave the train at Buda. The petition alleges that the facts as stated were known to the conductor and the servants in charge of the train. And the petition concludes with the statement that he has been greatly damaged, in being placed in fear of his life and great bodily harm, and that he suffered great anguish in body and mind on account of the mistreatment as herein alleged, and sues for the sum of \$5,000. There is abundant evidence in the record sustaining these averments.
[***] The evidence in the record, and the case as made by the pleadings, is not one wholly of mental anguish, but it shows an unjustifiable assault made by drunken passengers upon the person of the appellee at a time and under circumstances when he should have been afforded protection by the conductor and the servants in charge of the train. They knew and were informed of the outrageous and unjustifiable assault that was being committed, and there is no palliation or excuse for the conduct of the railway company in not resorting to some means to afford protection to the plaintiff from the premeditated, unjustifiable, and outrageous assault that was being committed upon him, the progress of which, as the evidence shows, continued for some time, within the knowledge of the conductor. On the points of law raised in the assignments noticed, the authorities in this state are clearly against the contention of the appellant. Texas & Pacific Railway Co. v. Armstrong, 93 Tex. 34; Missouri Pacific Railway Co. v. Kaiser, 82 Tex. 144; M., K. & T. Ry. Co. v. Tarwater (Tex.Civ.App.) 75 S.W. 937; International & Great Northern Railroad Co. v. Anchondi (Tex.Civ.App.) 68 S.W. 744.
The fifth assignment of error complains that the verdict of the jury is excessive, outrageous, and unconscionable, and that the court erred in overruling defendant’s motion for new trial, because the damages awarded to the plaintiff are out of all proportion to the inconvenience and humiliation alleged to have been suffered by him. In view of the evidence in the record, it is unnecessary to discuss the question raised by this assignment. The plaintiff was clearly entitled to the amount recovered [\$1,000], if not more.
Note 5. Having read the account of Mr. Henderson’s experience, consider how it compares with the experience of Mrs. Luther in the waiting room, recalling that both incidents were alleged to have resulted in emotional distress. What do you observe about how the court in Gulf v. Luther cites to this case, International & G.N.R. Co. v. Henderson? What does it suggest about a system built on stare decisis?
Professor Kim Lane Scheppele describes how a legal system ceases to feel legitimate when it discredits or misrepresents those whom it purports to represent and regulate: “Those whose stories are believed have the power to create fact; those whose stories are not believed live in a legally sanctioned ‘reality’ that does not match their perceptions. …How are people to think about the law when their stories, the ones they have lived and believed, are rejected by courts, only to be replaced by other versions with different legal results? …[T]here are few things more disempowering in law than having one’s own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one’s own, when legal judgments proceed from a description of one’s own world that one does not recognize…” Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2079–80 (1989) What should courts do to guard against citation practices like those illustrated in the Luther and Henderson cases?
Check Your Understanding (1-10)
Question 1. Read the following dicta from Gulf v. Luther and select the answer that most accurately captures the meaning of the passage:
“While the rule, expressed in the court’s charge, that ‘railway companies are not insurers of the safety and comfort of their passengers, but are required to exercise that high degree of care that very cautious and prudent persons would have exercised under the same or similar circumstances, and a failure to do so is negligence,’ may not be strictly applicable to a case of this character, its being given in the charge [to the jury] could not have possibly prejudiced the defendant, since in a case like this the common carrier is absolutely liable for injuries unlawfully and wrongfully inflicted by his servant on a passenger.”
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. Which of the following is the least applicable normative justification for the doctrine of vicarious liability?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
(NY 37 Misc.2d 1067)
On this motion to dismiss the complaint for legal insufficiency pursuant to Rule 106 subdivision 4, Rules of Civil Practice, much of defendant’s argument is directed to the plausibility of the plaintiffs’ story, and whether the acts complained of ever occurred since the complaint is based only upon information and belief. We are not now, however, concerned with the question of proof since on a motion of this type the allegations must be deemed true.
In sum the complaint states that the plaintiffs, who are Puerto Ricans, contracted to purchase a house in a residential section of Massapequa from one Farber, a builder; that the defendant learned of this and he, acting in concert with others, personally called on Farber and expressed anger at ‘colored persons’ moving into the neighborhood, and threatened bodily harm to him, to plaintiffs and to plaintiffs’ children, if the sale were consummated; that these threats were made with malice and for the purpose of communication to plaintiffs, in order to frighten them into agreeing to rescind the contract of sale; that these threats were communicated to plaintiffs by Farber and that plaintiffs were put in fear of their personal safety and that of their children as a result of which they entered into an agreement rescinding the contract of sale. It is further alleged that, as a result of these threats, both plaintiffs suffered distress, humiliation and emotional shock and were rendered sick and nervous, and that in addition plaintiff Manuel Ruiz suffered pecuniary damage in that he had to search for another dwelling and absent himself from his business.
Much of the discussion in the moving brief, in the court’s view, is beside the point. This does not purport to be an action under the new anti-discrimination laws, nor in defamation, nor for assault, so there is no point in showing its deficiencies in this regard. [***]
This is an action for a wilful and malicious tort, the very purpose of which was to so frighten and distress the plaintiffs that they would surrender their legal right to buy a house where they pleased. These were not mere idle words of disapproval but a specific threat of bodily harm. The ultimate purpose of keeping ‘colored people’ out of the neighborhood could not be accomplished unless the immediate objective of putting them in fear for their safety first succeeded.
In principle this case is not too different from Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759, where a malicious, sarcastic letter, taunting the *1069 plaintiff with her unsuccessful efforts to marry the defendant was held to be actionable without a showing of special damage. Battalla v. State, 10 N.Y.2d 237, is analogous also. There the Court of Appeals overruled the long established rule of Mitchell v. Rochester Ry. Co., 151 N.Y. 107, that there could be no recovery for negligently causing fright, distress and physical damage, unless there had been an impact and allowed a complaint to stand although no physical contact was involved.
Deliberate and malevolent conduct, albeit confined to words, is at least as serious a matter, requiring the protection of the law to even a greater degree. (Scheman v. Schlein, 35 Misc.2d 581.)
The fact that the threat was uttered to an intermediary for communication to plaintiffs does not, in any way, detract from its viciousness and illegality. An ‘organizer’ who goes into a barber shop and tells an employee to tell the employer to raise the price of haircuts or his shop will be dynamited, would get short shrift with the defense that he did not speak to the employer personally.
For these reasons I believe that defendant must come forward and stand on his position that the episode did not take place and not that he is not liable even if it did happen, which is his position on this motion.
Motion denied.
Note 1. The court attempts to sort the defendant’s conduct into one of tort law’s existing categories: “This does not purport to be an action under the new anti-discrimination laws, nor in defamation, nor for assault, so there is no point in showing its deficiencies in this regard.” What do you make of this effort, and how does it square with the outcome in this case?
Note 2. Having now had a brief introduction to trespass, battery, and assault—three of the core intentional torts—what do you observe about the way they were applied in the cases you read, whom they served or disserved, and how they differed from negligence law?
1. Editor’s note: “Trespass” here is a reference to an older form of legal action involving a direct injury, and it does not necessarily or only refer to trespass in the ordinary sense with which you are probably familiar, meaning unauthorized entry onto someone else’s land. “Lies” here means “exists as a viable legal action.”
2. Editor’s note: This now is a reference to trespass in the ordinary sense of unauthorized entry on someone else’s land, which the law calls a “close.” 87 C.J.S. TRESPASS § 66. Here, the “close” is a reference to the property owned by the plaintiff, Swan.
3. A Black’s Law Dictionary—or Google—will help you cut through the Latin terms you’ll encounter in law school. If an unfamiliar term doesn’t obstruct your understanding, you might just keep reading without looking it up, and only look it up after you’ve read the case so that it doesn’t break your flow. However, I would strongly encourage you to look up a Latin phrase (or other term) if you’re still not sure what it means after reading the case. Here, “causa causans” means the primary or originating cause, the cause of the things (or even the causes) that follows that first cause. It’s used to trace damages back to an original source of liability.
4. https://www.officialdata.org/us/inflation/1905?amount=14322.50 Using a more complicated set of inputs, it could be considered \$2,690,000 in relative income using 2019’s currency.
5. https://www.officialdata.org/canada/inflation/1935?amount=50
6. The underlying legal reasoning for the doctrine is illustrated in this case: “If the servants of A with his cart run against another cart, wherein is a pipe of wine, and overturn the cart and spoil the wine, an action lieth against A. So where a carter’s servant runs his cart over a boy, action lies against the master for the damage done by this negligence: and so it is if a smith’s man pricks a horse in shoeing, the master is liable. For whoever employs another, is answerable for him, and undertakes for his care to all that make use of him. The act of a servant is the act of his master, where he acts by authority of the master.” Jones v Hart, 90 E.R. 1255 (Court of King’s Bench) 1703.
7. White women and children would wait in this room to be protected from the hustle and bustle of the railroad station, apparently. Here, the husband has deposited his wife and children while he goes back out on the town on some sort of errand as they all await the train. At least in this railroad station, an African-American woman was employed to keep the waiting room clean and orderly.
8. The “assignments of error” mentioned here are the grounds on which the case is being appealed, namely, that the court below made errors that this appellate court should address (in the ways in which the appellant is seeking relief).
9. Editor’s note: “res gestae” means the things or circumstances relating to the case at hand. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/01%3A_Introduction_to_Tort_Law/1.05%3A_Introduction_to_the_Intentional_Torts-_Protecting_Property_Body_and_Mind.txt |
Questions and Areas of Focus for the Readings
• Can you articulate the significance of a “general verdict” and its effect here?
• What is the role of the jury and jury instructions, in this case?
• Why does it matter to distinguish between battery and negligence?
• What key facts in this case did the court focus on, to distinguish between the applicability of the two regimes (the regimes of battery and negligence, that is)?
(8 Cal.3d 229)
This medical malpractice case involves two issues: first, whether there was sufficient evidence of negligence in the performing of surgery to sustain a jury verdict for plaintiff; second, whether, under plaintiff’s alternative theory, the instructions to the jury adequately set forth the nature of a medical doctor’s duty to obtain the informed consent of a patient before undertaking treatment. We conclude there was insufficient evidence to support the jury’s verdict under the theory that defendant was negligent during the operation. Since there was a general verdict and we are unable to ascertain upon which of the two concepts the jury relied, we must reverse the judgment and remand for a new trial. To assist the trial court upon remand we analyze the doctor’s duty to obtain the patient’s informed consent and suggest principles for guidance in drafting new instructions on this question.
Plaintiff was admitted to the hospital in August 1964 for treatment of a duodenal ulcer. He was given a series of tests to ascertain the severity of his condition and, through administered medication to ease his discomfort, he continued to complain of lower abdominal pain and nausea. His family physician, Dr. Jerome Sands, concluding that surgery was indicated, discussed prospective surgery with plaintiff and advised him in general terms of the risks of undergoing a general anesthetic. Dr. Sands called in defendant, Dr. Dudley F. P. Grant, a surgeon, who after examining plaintiff, agreed with Dr. Sands that plaintiff had an intractable peptic duodenal ulcer and that surgery was indicated. Although Dr. Grant explained the nature of the operation to plaintiff, he did not discuss any of the inherent risks of the surgery.
*235 A two-hour operation was performed the next day, in the course of which the presence of a small ulcer was confirmed. Following the surgery the ulcer disappeared. Plaintiff’s recovery appeared to be uneventful, and he was permitted to go home eight days later. However, the day after he returned home, plaintiff began to experience intense pain in his abdomen. He immediately called Dr. Sands who advised him to return to the hospital. Two hours after his readmission plaintiff went into shock and emergency surgery was performed. It was discovered plaintiff was bleeding internally as a result of a severed artery at the hilum of his spleen. Because of the seriousness of the hemorrhaging and since the spleen of an adult may be removed without adverse effects, defendant decided to remove the spleen. Injuries to the spleen that compel a subsequent operation are a risk inherent in the type of surgery performed on plaintiff and occur in approximately 5 percent of such operations.
After removal of his spleen, plaintiff recuperated for two weeks in the hospital. A month after discharge he was readmitted because of sharp pains in his stomach. X-rays disclosed plaintiff was developing a gastric ulcer. The evolution of a new ulcer is another risk inherent in surgery performed to relieve a duodenal ulcer. Dr. Sands initially decided to attempt to treat this nascent gastric ulcer with antacids and a strict diet. However, some four months later plaintiff was again hospitalized when the gastric ulcer continued to deteriorate and he experienced severe pain. When plaintiff began to vomit blood the defendant and Dr. Sands concluded that a third operation was indicated: a gastrectomy with removal of 50 percent of plaintiff’s stomach to reduce its acid-producing capacity. Some time after the surgery, plaintiff was discharged, but subsequently had to be hospitalized yet again when he began to bleed internally due to the premature absorption of a suture, another inherent risk of surgery. After plaintiff was hospitalized, the bleeding began to abate and a week later he was finally discharged.
Plaintiff brought this malpractice suit against his surgeon, Dr. Grant. The action was consolidated for trial with a similar action against the hospital. The jury returned a general verdict against the hospital in the amount of \$45,000. This judgment has been satisfied. The jury also returned a general verdict against defendant Grant in the amount of \$23,800. He appeals.
The jury could have found for plaintiff either by determining that defendant negligently performed the operation, or on the theory that defendant’s failure to disclose the inherent risks of the initial surgery vitiated plaintiff’s consent to operate. Defendant attacks both possible grounds of *236 the verdict. He contends, first, there was insufficient evidence to sustain a verdict of negligence, and, second, the court committed prejudicial error in its instruction to the jury on the issue of informed consent.
I
Defendant’s attack on the sufficiency of the evidence relates to the state of the medical testimony. Three experts testified at the trial: defendant, Dr. Sands, and defendant’s expert, Dr. Yates. No expert witness was produced by plaintiff. The three experts were consistent in the opinion that the decision to operate as well as the actual procedure evidenced due care. Thus defendant insists that if experts unanimously opine that the defendant exercised due care, the jury may not substitute its judgment and find negligence. [cc]
Plaintiff contends the jury could reach a conclusion contrary to that of the experts because the decision to operate on his duodenal ulcer comes under the recognized exception to the need for medical testimony: the facts present a medical question resolvable by common knowledge. [cc] Where a shoulder is injured in an appendectomy (Ybarra v. Spangard (1944) 25 Cal.2d 486), or a clamp is left in the abdomen (Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509), expert testimony is not required since the jury is capable of appreciating and evaluating the significance of such events. However, when a doctor relates the facts he has relied upon in support of his decision to operate, and where the facts are not commonly susceptible of comprehension by a lay juror, medical expert opinion is necessary to enable the trier of fact to determine if the circumstances indicated a need for surgery.
The record before us requires this case to be governed by the general rule. An X-ray examination of plaintiffs’ stomach disclosed ‘There is extreme irritability of the duodenal bulb within which on two films is a faint collection of barium (swallowed by plaintiff for the purposes of this test) consistent with a very tiny active duodenal ulcer.’ Since it was a ‘very tiny’ ulcer, and since conversely, the ulcer was ‘active’ and had produced ‘extreme irritability,’ only an expert would be capable of understanding whether surgery was immediately necessary for plaintiff’s wellbeing. Similarly *237 there was uncontradicted testimony that although plaintiff had ceased to experience pain rhythmically, continuous pain indicated the ulcer was penetrating the wall of the duodenum. If all five layers of the duodenum are penetrated a patient can bleed profusely and emergency surgery is essential to save his life. Again only an expert can appreciate the significance of the constant pain and whether surgery was indicated therefor. Finally there was evidence plaintiff’s stools were dark and tarry. While the lay mind is unable to draw any conclusion from such evidence, to a doctor this is additional confirmation of a penetrating ulcer. Under such circumstances the common knowledge exception to the need for expert medical testimony is not applicable.
A fortiori, plaintiff’s theory of negligence in the performance of the surgery is not sustainable under the common knowledge exception when, under these circumstances, there is uncontradicted expert testimony the operation had been performed with due care. Even with the exercise of due care the spleen may be injured during operations similar to that performed on plaintiff approximately 5 percent of the time, due to the need to mechanically retract the spleen to obtain access to the site of the operation. ‘The fact that a particular injury suffered by a patient as the result of an operation is something that rarely occurs does not in itself prove that the injury was probably caused by the negligence of those in charge of the operation.’ [c]
In any event, plaintiff contends, defendant made statements from which the jury could conclude defendant had admitted negligence. Defendant is a medical expert; if he in fact made inculpatory declarations of negligence, such admissions could be deemed the expert testimony necessary to sustain the verdict. However, the evidence pointed out by plaintiff in support of this theory does not constitute an admission of negligence. Plaintiff first emphasized testimony by defendant that surgery is not necessary for most ulcers unless there are complications. Plaintiff argues that from such testimony, in light of plaintiff’s medical history, the jury could conclude there was no indication of a need for surgery. This is merely a restatement of the common knowledge argument which we have rejected above. Defendant’s statement that surgery is not usually warranted is not an admission of a negligent decision to operate when all the medical experts testified that in plaintiff’s case surgery was indicated.
Plaintiff also urges that although defendant testified he visually inspected the spleen before suturing, the jury could infer from the subsequent hemorrhaging *238 that his inspection was not made with due care. The bleeding was attributable to a small tear at the hilum of the spleen. Defendant and his expert witnesses gave uncontradicted testimony that injuries not apparent during an operation may subsequently become manifest. In light of this testimony and the additional uncontradicted testimony that the surgery was performed with due care, it would have been improper speculation for the jury to infer the injury should have been apparent to a careful surgeon. [c]
Finally, plaintiff relies on his own testimony that defendant said to plaintiff, ‘He (i.e., defendant) blamed himself for me being back in there (the hospital for a second time).’ Defendant denied having made such a remark. However, even if the jury had chosen to believe plaintiff, defendant’s statement signifies compassion, or at most, a feeling of remorse, for plaintiff’s ordeal. Since a medical doctor is not an insurer of result, such an equivocal admission does not constitute a concession that he lacked or failed to use the reasonable degree of learning and skill ordinarily possessed by other members of the profession in good standing in the community, or that he failed to exercise due care. [cc]
We are convinced there is not substantial evidence to support a jury verdict on the issue of defendant’s liability on the theory that he was negligent either when he decided to operate or in performing the surgery. Under article VI, section 13, of the California Constitution, we must examine the record to determine if the giving of instructions on this issue may have prejudiced the jury and caused a miscarriage of justice. The test we apply is whether it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. [c] Inasmuch as there was a general verdict, we cannot know whether the jury found defendant liable on the theory his decision to undertake, or the performance of, the operation was negligent, or whether it found him liable under the alternative theory: failure to obtain plaintiff’s informed consent for surgery. It is clear from the record that both concepts were vigorously presented to the jury. Since it is impossible to determine on which theory the jury verdict rested, we conclude it is reasonably probable there has been a miscarriage of justice. We therefore reverse the judgment.
*239 II
Since the question of informed consent is likely to arise on retrial, we address ourselves to that issue. (Code Civ.Proc., s 43.) In giving its instruction the trial court relied upon Berkey v. Anderson (1969) 1 Cal.App.3d 790, 803, a case in which it was held that if the defendant failed to make a sufficient disclosure of the risks inherent in the operation, he was guilty of a ‘technical battery’ [cc] While a battery instruction may have been warranted under the facts alleged in Berkey, in the case before us the instruction should have been framed in terms of negligence.
Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery. (Berkey v. Anderson (1969) supra, 1 Cal.App.2d 790 (allegation of consent to permit doctor to perform a procedure no more complicated than the electromyograms plaintiff had previously undergone, when the actual procedure was a myelogram involving a spinal puncture); Bang v. Charles T. Miller Hosp. (1958) 251 Minn. 427 (plaintiff consented to a prostate resection when uninformed that this procedure involved tying off his sperm ducts); Corn v. French (1955) 71 Nev. 280 (patient consented to exploratory surgery; doctor performed a mastectomy); Zoterell v. Repp (1915) 187 Mich. 319 (consent given for a hernia operation during which doctor also removed both ovaries).
However, when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed to be a battery or negligence. (Gray v. Grunnagle (1966) 423 Pa. 144 (failure to warn a patient a spinal operation involved an inherent risk of permanent paralysis; battery); Belcher v. Carter (1967) 13 Ohio App.2d 113 (failure to warn of danger of radiation burns; battery); Nolan v. Kechijian (1949) 75 R.I. 165 (operation to strengthen ligaments of spleen when spleen was removed; trespass to the body and negligence); [c] Mitchell v. Robinson (Mo.1960) 334 S.W.2d 11 (vertebrae broken during insulin shock treatment; negligence).) California authorities have favored a negligence theory. *240 (Carmichael v. Reitz (1971) 17 Cal.App.3d 958 (pulmonary embolism caused by adverse reaction to drug; negligence); Dunlap v. Marine (1966) 242 Cal.App.2d 162 (cardiac arrest allegedly caused by administration of anesthetic; negligence); Tangora v. Matanky (1964) 231 Cal.App.2d 468 (anaphylactic shock as a result of intramuscular penicillin shot; negligence); Salgo v. Leland Stanford, etc., Bd. of Trustees (1957) 154 Cal.App.2d 560 (paralysis of lower extremities after aortographic examination; negligence).)
Dean Prosser surveyed the decisions in this area and concluded, ‘The earliest cases treated this as a matter of vitiating the consent, so that there was liability for battery. Beginning with a decision in Kansas in 1960 (Natanson v. Kline (1960) [c], 187 Kan. 186), it began to be recognized that this was really a matter of the standard of professional conduct . . .. (T)he prevailing view now is that the action . . . is in reality one for negligence in failing to conform to the proper standard . . ..’ [cc]
Although this is a close question, either prong of which is supportable by authority, the trend appears to be towards categorizing failure to obtain informed consent as negligence. That this result now appears with growing frequency is of more than academic interest; it reflects an appreciation of the several significant consequences of favoring negligence over a battery theory. As will be discussed Infra, most jurisdictions have permitted a doctor in an informed consent action to interpose a defense that the disclosure he omitted to make was not required within his medical community. However, expert opinion as to community standard is not required in a battery count, in which the patient must merely prove failure to give informed consent and a mere touching absent consent. Moreover a doctor could be held liable for punitive damages under a battery count, and if held liable for the intentional tort of battery he might not be covered by his malpractice insurance. (Comment, Informed Consent in Medical Malpractice (1967) 55 Cal.L.Rev. 1396.) Additionally, in some jurisdictions the patient has a longer statute of limitations if he sues in negligence.
We agree with the majority trend. The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent *241 given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.
The facts of this case constitute a classic illustration of an action that sounds in negligence. Defendant performed the identical operation to which plaintiff had consented. The spleen injury, development of the gastric ulcer, gastrectomy and internal bleeding as a result of the premature absorption of a suture, were all links in a chain of low probability events inherent in the initial operation.
III
Since this is an appropriate case for the application of a negligence theory, it remains for us to determine if the standard of care described in the jury instruction on this subject properly delineates defendant’s duty to inform plaintiff of the inherent risks of the surgery. In pertinent part, the court gave the following instruction: ‘A physician’s duty to disclose is not governed by the standard practice in the community; rather it is a duty imposed by law. A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.’
Defendant raises two objections to the foregoing instruction. First, he points out that the majority of the California cases have measured the duty to disclose not in terms of an absolute, but as a duty to reveal such information as would be disclosed by a doctor in good standing within the medical community. [cc] One commentator has imperiously declared that ‘good medical practice is good law.’ (Hagman, The Medical Patient’s Right to Know (1970) 17 U.C.L.A. L.Rev. 758, 764.) Moreover, with one state and one federal exception every jurisdiction that has considered this question has adopted the community standard as the applicable test. [fn] Defendant’s second contention is that this near unanimity reflects strong policy reasons for vesting in the medical community the unquestioned *242 discretion to determine if the withholding of information by a doctor from his patient is justified at the time the patient weighs the risks of the treatment against the risks of refusing treatment.
The thesis that medical doctors are invested with discretion to withhold information from their patients has been frequently ventilated in both legal and medical literature. (See, e.g., Salgo v. Leland Stanford, etc., Bd. of Trustees (1957) supra, 154 Cal.App.2d 560, 578; Mitchell v. Robinson (Mo.1960) supra, 334 S.W.2d 11 (even though patient was upset, agitated, depressed, crying, had marital problems and had been drinking, the court found that since no emergency existed and he was legally competent he should have been advised of the risks of shock therapy) […] Despite what defendant characterizes as the prevailing rule, it has never been unequivocally adopted by an authoritative source. Therefore we probe anew into the rationale which purportedly justifies, in accordance with medical rather than legal standards, the withholding of information from a patient.
Preliminarily we employ several postulates. The first is that patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity. The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment. The third is that the patient’s consent to treatment, to be effective, must be an informed consent. And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions.
From the foregoing axiomatic ingredients emerges a necessity, and a resultant requirement, for divulgence by the physician to his patient of all information relevant to a meaningful decisional process. In many instances, to the physician, whose training and experience enable a self-satisfying evaluation, the particular treatment which should be undertaken may seem evident, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie. *243 To enable the patient to chart his course knowledgeably, reasonable familiarity with the therapeutic alternatives and their hazards becomes essential.
Therefore, we hold, as an integral part of the physician’s overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.
A concomitant issue is the yardstick to be applied in determining reasonableness of disclosure. This defendant and the majority of courts have related the duty to the custom of physicians practicing in the community. [cc] The majority rule is needlessly overbroad. Even if there can be said to be a medical community standard as to the disclosure requirement for any prescribed treatment, it appears so nebulous that doctors become, in effect, vested with virtual absolute discretion. (See Note, Physicians and Surgeons (1962) 75 Harv.L.Rev. 1445; Waltz and Scheuneman, Informed Consent to Therapy (1970) 64 Nw.U.L.Rev. 628.) The court in Canterbury v. Spence, supra, 464 F.2d 772, 784, bluntly observed: ‘Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.’ Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected.
A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment. But once this information has been disclosed, that aspect of the doctor’s expert function has been performed. The weighing of these risks against the individual subjective fears and hopes of the patient is not an expert skill. Such evaluation and decision is a nonmedical judgment reserved to the patient alone. A patient should be denied the opportunity to weigh the risks only where it is evident he cannot evaluate the data, as for example, where there is an emergency or the patient is a child or incompetent. For this reason the law provides that in an emergency consent is implied *244 [cc] and if the patient is a minor or incompetent, the authority to consent is transferred to the patient’s legal guardian or closest available relative [cc]. In all cases other than the foregoing, the decision whether or not to undertake treatment is vested in the party most directly affected: the patient.
The scope of the disclosure required of physicians defies simple definition. Some courts have spoken of ‘full disclosure’ [cc] and others refer to “full and complete” disclosure [cc] but such facile expressions obscure common practicalities. Two qualifications to a requirement of ‘full disclosure’ need little explication. First, the patient’s interest in information does not extend to a lengthy polysyllabic discourse on all possible complications. A mini-course in medical science is not required; the patient is concerned with the risk of death or bodily harm, and problems of recuperation. Second, there is no physician’s duty to discuss the relatively minor risks inherent in common procedures, when it is common knowledge that such risks inherent in the procedure are of very low incidence.[fn] For example, the risks inherent in the simple process of taking a common blood sample are said to include hematoma, dermatitis, cellulitis, abscess, osteomyelitis. septicemia, endocarditis, thrombophlebitis, pulmonary embolism and death, to mention a few. (Harrison, Principles of Internal Medicine (5th ed. 1966) pp. 726, 1492, 1510-1514.) One commentator states that California law does not require that the “patient be told too much.” (Hagman, The Medical Patient’s Right to Know, supra, 17 U.C.L.A. L.Rev. 758, 766.)[/footnote] When there is a common procedure a doctor must, of course, make such inquiries as are required to determine if for the particular patient the treatment under consideration is contraindicated—for example, to determine if the patient has had adverse reactions to antibiotics; but no warning beyond such inquiries is required as to the remote possibility of death or serious bodily harm.
However, when there is a more complicated procedure, as the surgery in the case before us, the jury should be instructed that when a given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur. Beyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as *245 a skilled practitioner of good standing would provide under similar circumstances.
In sum, the patient’s right of self-decision is the measure of the physician’s duty to reveal. That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice. The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is whatever information is material to the decision. Thus the test for determining whether a potential peril must be divulged is its materiality to the patient’s decision. (Canterbury v. Spence, supra, 464 F.2d 772, 786.)
We point out, for guidance on retrial, an additional problem which suggests itself. There must be a causal relationship between the physician’s failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given. Here the record discloses no testimony that had plaintiff been informed of the risks of surgery he would not have consented to the operation. [cc]
The patient-plaintiff may testify on this subject but the issue extends beyond his credibility. Since at the time of trial the uncommunicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the patient’s bitterness and disillusionment. Thus an objective test is preferable: i.e., what would a prudent person in the patient’s position have decided if adequately informed of all significant perils. (Canterbury v. Spence, supra, 464 F.2d 772, 787.)
The burden of going forward with evidence of nondisclosure rests on the plaintiff. Once such evidence has been produced, then the burden of going forward with evidence pertaining to justification for failure to disclose shifts to the physician.
Whenever appropriate, the court should instruct the jury on the defenses available to a doctor who has failed to make the disclosure required by law. Thus, a medical doctor need not make disclosure of risks when the patient requests that he not be so informed. (See discussion of waiver: Hagman, The Medical Patient’s Right to Know, supra, 17 U.C.L.A. L.Rev. 758, 785.) Such a disclosure need not be made if the procedure is simple and the danger remote and commonly appreciated to be remote. *246 A disclosure need not be made beyond that required within the medical community when a doctor can prove by a preponderance of the evidence he relied upon facts which would demonstrate to a reasonable man the disclosure would have so seriously upset the patient that the patient would not have been able to dispassionately weigh the risks of refusing to undergo the recommended treatment. (E.g., see discussion of informing the dying patient: Hagman, The Medical Patient’s Right to Know, supra, 17 U.C.L.A. L.Rev. 758, 778.) Any defense, of course, must be consistent with what has been termed the ‘fiducial qualities’ of the physician-patient relationship. [c]
The judgment is reversed.
Note 1. From the plaintiff or patient’s perspective, why does it matter to distinguish negligence from battery?
Note 2. From the defendant or physician’s perspective, why does the distinction matter?
Note 3. Why does the court state a preference for the objective test for the patient in informed consent?
Expand On Your Understanding – Socratic Script: Cobbs v. Grant
Question 1. What were the legal issues in this case?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. What was the holding in this case? Why could the verdict below not stand?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 3. What is the dispute concerning expert testimony in the case, and how does the court justify its decision in that regard?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 4. The court states that on retrial, below, the court would ordinarily need to determine whether to instruct the jury to consider informed consent in terms of negligence or battery. Which does it tell the court to apply, and what reasoning does it provide?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 5. What are some real-world consequences that may flow from categorizing a claim as battery vs. negligence? What’s the rationale underpinning the distinction?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Check Your Understanding (1-11)
Question 1. Which of the following are instances in which the Cobbs ruling indicates that the patient need not be informed:
i. When the patient requests that they not be informed
ii. When the procedure is simple and the danger remote and commonly understood to be remote
iii. When the patient’s low risk is outweighed by the doctor’s high risk of a costly but trivial malpractice claim
iv. When the disclosure might so seriously upset the patient that they would not be able to weigh the risks of refusing treatment
v. When the disclosure might cause the patient to seek alternative treatment or another surgeon
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Reflect On Your Understanding – Essay on the Implications of Tort Law’s Impact (Recommended maximum word count 300 words)
Several of the cases we have read so far have involved elements of race, gender, class, ability and socioeconomic power. We have also discussed tort law’s normative purposes (fairness, efficiency, compensation, deterrence, and social justice). Identify one example from a case in this module that shows courts failing to live up to one of these purposes. In your example, you might choose to discuss whether you see the court prioritizing one of tort law’s purposes over another. If so, does the court justify that prioritization? Generally, what are you observing about how the law works, or fails to work? There is no “right” answer here; this essay question is simply intended to invite you to reflect on your readings and engage with the deeper ideas of the course. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/01%3A_Introduction_to_Tort_Law/1.06%3A_Intentional_Torts_vs_Negligence_%28Socratic_Script%29.txt |
The intent level needed to satisfy most of the intentional tort action is an intent to act followed by the action itself. If an action is produced involuntarily (through a seizure, while sleeping or drugged against one’s will, for instance), the actor lacks the requisite intent. If an actor throws a ball at someone, hoping they will catch it, the intent to throw is the focus of the inquiry. Some courts have called this “purpose intent.” If the throw causes bruising when the ball accidentally hits the receiver’s face, it does not defeat the thrower’s intent even if the harm was unintended. Tort law calls the intent to cause the harm that happened (here, the facial bruising), “specific intent.” Specific intent is not required for most of the intentional torts and it is an error of law to confuse the standards; specific intent is higher than necessary for most intentional torts. (The exception is false imprisonment which requires proof of the specific intent to confine the plaintiff.)
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 1. Intent: A person acts with the intent to produce a consequence if:
(a) the person acts with the purpose of producing that consequence; or
(b) the person acts knowing that the consequence is substantially certain to result.
(614 So.2d 714)
This is an appeal by Eusebio Villa, plaintiff and appellant herein, from a jury verdict in favor of Michael Derouen, Villa’s co-employee, and Louisiana Farm Bureau Mutual Insurance Company, Derouen’s homeowner insurer, defendants and appellees herein. This case involves facts wherein an intentional act, by Derouen, i.e., the act of pointing a welding cutting torch in Villa’s direction and intentionally releasing oxygen or acetylene gas caused unintentional harm to Villa, i.e., second degree burns to Villa’s groin area.
After trial, the jury found that the defendant, Derouen, did not commit an intentional tort against Villa and, therefore, was not liable for Villa’s injuries. This finding of the jury foreclosed Villa from recovery in this action insofar as Villa is limited to worker’s compensation unless it was found that Derouen committed an intentional tort which caused Villa’s injuries.
Villa appeals contending that the jury erred in its finding that Derouen did not commit an intentional tort against Villa. We agree with Villa’s contentions and find that the jury clearly erred in finding that Derouen’s intentional act of spraying his welding torch in Villa’s direction did not constitute an intentional tort, specifically, a battery against Villa. As such, we reverse the judgment of the trial court and award damages accordingly.
This claim for damages arises out of an accident which occurred at M.A. Patout & Sons, Iberia Parish, Louisiana, on May 7, 1986. The evidence is undisputed that Eusebio Villa sustained burns to his crotch area and that these burns were caused by the actions of his co-employee, Michael Derouen. At the time of the accident, Villa was welding with a welding torch or welding whip. Derouen was standing to his left, using a cutting torch. Intending only horseplay, although one-sided, Derouen turned toward Villa and discharged his torch. Under cross-examination, Derouen responded affirmatively when asked if he placed the torch between Villa’s legs and also responded affirmatively when asked if he intended to spray Villa between the legs with oxygen when he placed the torch between Villa’s legs.
On direct examination, in response to questioning by his own attorney, Derouen qualified his previous answers, as follows:
“Mr. Lambert: … you did not have it in close proximity to his crotch?
Mr. Derouen: No.
Mr. Lambert: In fact, you did not even have it inside his body?
Mr. Derouen: No.
. . . . .
Mr. Lambert: When you squirted that, did you intend that that air actually cause him any pain, even minor pain?
Mr. Derouen: No.
Mr. Lambert: Did you intend that he even feel anything from the little bit of air?
Mr. Derouen: No.
Mr. Lambert: Why did you do it? What was your intention of doing that?
Mr. Derouen: To get his attention.”
Troy Mitchell, a co-employee, testified that a few minutes before the accident, he saw Derouen take his torch and blow pressurized oxygen behind Villa’s neck into Villa’s lowered face shield while Villa was welding. Mitchell testified that he told Derouen not to do that because it could ignite. Mitchell additionally testified that he thought Villa had also told Derouen to stop fooling around. Only a few minutes later, the accident which resulted in Villa’s burns occurred. Mitchell did not witness the accident because his welding hood was down at the time.
Marty Frederick, a co-employee of Villa’s, and Lambert Buteau, their supervisor, both testified that although they did not witness the incident, and could not remember Derouen’s exact words after the incident, *716 both understood that Derouen, in relating what had happened, was playing around with the cutting torch and “goosing” or trying to scare Villa at the time of the accident.
Derouen testified that he sprayed pressurized oxygen near plaintiff’s face prior to the accident. Villa testified that he felt the oxygen that Derouen blew on his face or head, heard Troy Mitchell telling Derouen to stop because Villa could be hurt, and made a remark himself to Derouen about it. Villa testified that, a few minutes later as he was welding with his face covered by his welding hood, he felt something blowing between his legs. He held still for a second, so as to not interrupt his welding, until he felt the pain in his groin area. He stated that, “I just grabbed with both of my hands. When I grabbed, it was a torch.” He continued by stating, “I grabbed in my private area where I feel the fire, and right there was the torch. I pushed it like that. It was Michael Derouen with the torch in his hand.”[1]
The fact that Villa reached down to his groin at the time of the injury, and either grabbed the torch or pushed it away, was undisputed at trial. It was also undisputed that, at the time of the accident, Villa was crouched welding with his welding hood down. The evidence revealed that while he was welding, due to the noise caused by the welding, Villa would not have heard Derouen’s torch aimed in his direction.
If an employee is injured as a result of an intentional act by a co-employee, LSA–R.S. 23:1032(B) allows him to pursue a tort remedy against that co-employee. In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the Louisiana Supreme Court determined that “an intentional tort”, for the purpose of allowing an employee to go beyond the exclusive remedy of worker’s compensation, meant “the same as ‘intentional tort’ in reference to civil liability.”
A civil battery has been defined by the Louisiana Supreme Court in Caudle v. Betts, 512 So.2d 389, 391 (La.1987) as, “[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact….” (Citations omitted.) The Louisiana Supreme Court in Caudle, supra, at page 391, continued by stating: “The intention need not be malicious nor need it be an intention to inflict actual damage. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the other’s consent. (Citations omitted.) ….
“The element of personal indignity involved always has been given considerable weight. Consequently, the defendant is liable not only for contacts that do actual physical harm, but also for those relatively trivial ones which are merely offensive and insulting. (Citations omitted.)
The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Restatement (Second) of Torts, American Law Institute § 13 (comment e) (1965). Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff’s own good.” (Citations omitted.)
Pursuant to this jurisprudence, we must determine whether Derouen committed a battery against Villa. Did Villa suffer an offensive contact which resulted from an act by Derouen which was intended to cause that offensive contact? Or as stated by Bazley, supra, at page 481, did Derouen entertain “a desire to bring about the consequences that followed”, or did Derouen believe “that the result was substantially *717 certain to follow”, thereby characterizing his act of spraying Villa as intentional?
There is a distinction between an intentional act which causes an intentional injury and an intentional act which causes an unintentional injury. To constitute a battery, Derouen need only intend that the oxygen he sprayed toward the plaintiff come into contact with Villa, or have the knowledge that this contact was substantially certain to occur.
The physical results or consequences which must be desired or known to a substantial certainty in order to rise to the level of an intentional tort, refer to the requirements of the particular intentional tort alleged. In this case, wherein Villa has alleged a battery, the harmful or offensive contact and not the resulting injury is the physical result which must be intended.
The record reveals that, although correctly instructed by the trial court, the jury appears to have been confused on this issue and, as such, manifestly erred, as a matter of law, in their verdict. The court instructed the jury as follows, as to the definition of the intentional tort of battery:
“In order for Eusebio Villa to recover from anyone in this case, he must first prove, by a preponderance of the evidence, that he was injured as a result of an intentional act. The meaning of intent in this context is that defendant either desired to bring about the physical results of his act, or believed that they were substantially certain to follow from what he did.
Eusebio Villa has alleged that Michael Derouen committed a battery upon him. A harmful or offensive contact with a person resulting from an act intending to cause the plaintiff to suffer such a contact is a battery. A battery in Louisiana law is an intentional act or tort.
The intention to commit the battery need not be malicious nor need it be an intention to inflict actual damage. The fact that it was done as a practical joke and did not intend to inflict actual damage does not render the actor immune. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the other’s consent. It is an intent to bring about a result which will invade the interests of another in a way that the law forbids. . . . . .”
Although this definition was technically correct, several defense counsels, both in opening and closing statements, told the jury that, in order for them to find Derouen liable, they must find that Derouen intended to hurt Villa and/or intended to burn Villa. Additionally, the jury was misled by statements that their verdict in favor of Villa would make Derouen a criminal insofar as a battery was a crime.
The jury voiced its confusion by sending a question to the judge asking him what the difference was between “an intentional tort and intentional (on purpose).” After the judge again instructed the jury with the charge set forth above, the jury sent out the query below [“Does the law in simple words means [sic] the intent to perform the act was meant but, not the harm resulting?”] to which the trial judge answered, as written [“The only response I can make is to reread the charge.”]: *718
Clearly the jury was confused as to whether they were to determine Derouen’s intent to perform the act or his intent to cause the resulting injuries. No clarifying instruction was given to the jury on this point of law. Had they understood the law, a reasonable juror could not have found that Derouen did not intend the act of directing compressed oxygen in the direction of Villa’s groin.
This distinction between an intentional act or unintentional act was recently highlighted in Lyons v. Airdyne Lafayette, Inc., 563 So.2d 260 (La.1990). In Lyons, an employee sued a co-employee alleging injuries as a result of the co-employee shooting a stream of compressed air at the plaintiff. The trial court granted summary judgment which was affirmed by this court. The Louisiana Supreme Court granted a writ of certiorari, and reversed the grant of summary judgment in favor of the defendant, stating as follows:
“There is a genuine issue of material fact whether plaintiff’s co-employee intentionally shot the stream of compressed air at plaintiff and injured him or whether the co-employee accidentally released the stream while repairing the compressor.” Id. at page 260.
Conversely, in the case at bar, there is no question as to whether or not Derouen intentionally shot the stream of compressed air at Villa.
This is not a case of an accidental release of pressurized oxygen or gas in Villa’s direction. Derouen testified that he did not intend, even the air he was pointing in Villa’s direction, to come into contact with Villa. It was unreasonable for the jury to accept that Derouen blew his torch at Villa, while Villa was welding and surrounded by the accompanying noise, in order to get Villa’s attention, but did not intend for Villa to feel the air directed at him.
In this case, Derouen intended to release the pressurized oxygen in Villa’s direction, at a minimum, to get Villa’s attention. Due to the noise, he would not have been able to get Villa’s attention unless Villa felt the air.
The facts are undisputed that Derouen aimed his welding torch and sprayed the pressurized oxygen or gas, which ignited, at Villa’s groin or at the ground between Villa’s legs. It is also undisputed that Villa was injured by the contact with the “flash” of Derouen’s welding torch.
*719 We find that the jury clearly erred in finding that a battery, i.e., an unconsented to offensive contact, had not occurred. The act or battery which Derouen intended was that of blasting pressurized oxygen or gas between Villa’s legs, into his groin area. Derouen testified that he merely wanted to get Villa’s attention. Due to the undisputed evidence that Villa was welding at the time of the injury, which welding was by its nature, accompanied by the noise of the welding, the defendant would not have approached Villa, expecting or intending him to “hear” the blast of air and thus, get his attention, without also expecting or intending Villa to “feel” the blast of pressurized oxygen and thus, get his attention.
Under the undisputed facts presented to the jury, we find that a reasonable juror could not have found that Derouen did not either intend for the air from his cutting torch to come into contact with Villa’s groin or, alternatively, we find that a reasonable juror could not have found that Derouen, in pointing his torch at Villa and releasing pressurized oxygen in the area of Villa’s groin, was not aware or substantially certain that the oxygen would come into contact with Villa’s groin area.
Villa sustained second degree burns to his penis, scrotum, and both thighs. He was first seen by Dr. James Falterman, Sr. on May 8, 1986, who hospitalized him from May 8, 1986, through May 16, 1986. Dr. Falterman testified that Villa was reasonably comfortable, with pain medication and treatment, within three (3) to four (4) days and, at a maximum, within one (1) week after the accident. Villa’s physical wounds healed completely, with some depigmentation, but no functional disability. He was discharged from treatment of his burns as of June 20, 1986.
Villa complained of being nervous and depressed on May 15, of 1986, and requested to see a psychiatrist. Villa was referred by Dr. Falterman to Dr. Warren Lowe, a clinical psychologist, who first saw Villa on June 9, 1986. Dr. Lowe diagnosed Villa as suffering from atypical anxiety disorder with depressive features together with some symptoms of post-traumatic stress disorder. At the time of trial, Dr. Lowe felt that Villa was getting better and was capable of entering a rehabilitation program.
[Editor’s note: The court ordered Derouen and his homeowner’s insurance company to pay \$174,307.00. Module 6, on damages, revisits this case.]
The jury’s verdict finding that Michael Derouen did not commit an intentional tort is hereby reversed.
Note 1. Derouen testified that he did not intend for the air to make contact with Villa. How did the court dispose of that assertion? What did it say about the jury’s verdict with respect to this point? Which standard of intent does the court apply?
Note 2. For what purpose does the court cite Lyons v.Airdyne (*718), and what’s the deeper issue at stake?
Note 3.Transferred intent doctrine. Changing the facts of this case, if Mr. Derouen had intended to make contact with Mr. Jones, but accidentally hit Mr. Villa, the rules of intent would still have allowed Mr. Villa to bring a lawsuit. Under the doctrine of “transferred intent,” a defendant cannot escape liability by having the good luck to have bad aim. Indeed, the presumption is that had he hit Mr. Jones, Mr. Jones would have been the plaintiff instead. The doctrine, which has its origins in the writ system, has two aspects. First, if a defendant meets the requisite intent with respect to one person, but the effect of the conduct instead invades the interest of another, the required intent “transfers from that intended person to the person actually wronged. Second, if a defendant meets the requisite intent for any of the core intentional torts (battery, assault, false imprisonment, trespass to chattels, or trespass to land), it can be transferred to satisfy the intent of any of the others. It does not apply to IIED (or to conversion, a tort related to personal property not covered in this casebook). In other words, the defendant does not escape liability by explaining that they merely meant to trespass on your property, but not to affect your chattels in anyway, or by explaining that they merely meant to frighten you into thinking they were about to harm, not to actually harm you, once they actually do commit a battery. If they meet the intent requirement for assault, it can be transferred to battery.
Note 4.Practice Stating the Rule. Notes and questions following assigned cases have focused thus far on formulating the legal question and holding but have not yet routinely asked you to formulate the “rule” of a case. Sometimes the rule is synonymous with the holding but often it’s not. The rule tends to be the principle for which the case will be cited (and there may be more than one rule, too). Discovering the rule requires skill that you will develop over time, as well as flexibility. Often the rule can be expressed in different ways, which may seem frustrating for those seeking a single correct answer, and sometimes the full scope of the rule will take subsequent cases to discern and develop fully. Recall how the holding in Davison altered slightly in Bartlett’s application of it, for example. Courts may later read a case for a certain proposition although that case never originally came out and announced its rule in that way. Consider how Guille v. Swan is now routinely understand as a paradigmatic strict liability case when at the time it was analyzed in terms of trespass. The rule as initially announced versus the rule as enduring principle that may eventually have lasting importance in the field can require some time to discern. This is why it is crucial to understand how rules evolve, how the facts and policies at play can both yield to and change rules over time. It helps lawyers to decode and predict the law, or at least to anticipate certain kinds of changes. That the rule can be expressed in different ways, or that multiple rules can exist does not relax the need for precision. Formulating the rule still requires precision. Practice stating the rule, or 1 or two 2 of the most significant rules you see in Villa.
Note 5. Note that the court raises Mr. Villa’s accent (and ethnicity) in its own footnote. Consider why it might have done so, and the possible effects on future courts and trials. Does the reference seem to hurt or help (and whom, and why)? According to the authors of a leading torts casebook, the court may have mentioned his ethnicity because Villa’s attorney, Charles L. Porter, believed that Villa was a victim of racial harassment. Villa, a Dominican man, was dating an African-American woman and his white Cajun fellow employees apparently found this objectionable and harassed him for it. “Villa’s attorney, now a state judge in Louisiana, raised this issue at trial, but the predominantly white, Cajun jury did not seem to respond well so he concentrated instead on the elements of the battery charge.” (Interview with Charles L. Porter, plaintiff’s attorney, July 18, 2001. Ibrahim J. Gassama, Lawrence C. Levine, Dominick Vetri and Joan E. Vogel, Tort Law and Practice, Fifth Edition (Carolina Press, 2016), p. 703.
The Restatement provided an additional way to define intent: knowledge, coupled with “substantial certainty” that consequences will follow. If you tossed a ball in the air near someone sleeping on the grass nearby and you knew “to a substantial certainty” that the consequence would be that the ball would strike that person, you intended to strike that person for the purposes of tort liability. In some cases, this distinction makes little difference, but in others it adds nuance that the court might find helpful or even dispositive. It is often easier to determine whether someone knew something (or could be expected to know something, because of their age or mental state or ability) than whether they intended something.
A classic mistake is finding no intent unless there is evidence of specific intent, which again means the intent to produce the harm that happened. After all, you could toss a ball at someone, fully intending to do that but imagining that your ball will land very lightly and be received in the spirit of good humor. But you could discover that your ball actually dealt a crushing blow and broke bones (perhaps because you were unaware of an underlying condition like brittle bones, or because you were genuinely unaware of your own strength). Nonetheless, for tort law, you intended to make contact and that is all that is needed. Trying to negate intent by explaining that you “didn’t intend to break anybody’s bones” will no good—that would be elevating the intent standard from intent to make contact to intent to bring about the harm that occurred from that contact. The former is the ordinary (or “purpose”) intent standard (intent to make contact) and the latter is “specific intent” which is not required (intent to produce the harm that occurred).
The next case provides an example of an application of the Restatement’s “knowledge to a substantial certainty.”
(208 F. Supp.3d 1227)
The plaintiffs in this case are West Morgan-East Lawrence Water and Sewer Authority (the “Authority”), in its individual capacity, and Tommy Lindsey, Lanette Lindsey, and Larry Watkins (collectively “Representative Plaintiffs”), who bring this action both individually and on behalf of a class of persons similarly situated.[2] [***] The Authority and Representative Plaintiffs (collectively “Plaintiffs”) assert common law claims of negligence (Count I), nuisance (Count II), abatement of nuisance (Count III), trespass (Count IV), battery (Count V), and wantonness (Count VI) against 3M Company, Dyneon, L.L.C., and Daikin America, Inc. Currently before the court is 3M and Dyneon’s motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [***]
This action arises out of defendants’ discharge of wastewaters containing perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and related chemicals into the Tennessee River near Decatur, Alabama. Specifically, 3M and its wholly-owned subsidiary Dyneon own and operate manufacturing and disposal facilities in Decatur, which have released, and continue to release, PFOA, PFOS, and related chemicals into ground-and surface water, through which the chemicals are ultimately discharged into the Tennessee River. Daikin America manufactures tetrafluoroethylene and hexafluoropropylene fluoropolymers, produces PFOA as a byproduct, and discharges PFOA, PFOS, and related chemicals into the Decatur Utilities Wastewater Treatment Plant. The Wastewater Treatment Plant, in turn, discharges the wastewater into the Tennessee River.
*1232 Defendants discharge these chemicals thirteen miles upstream from the area where the Authority draws water that it supplies to local water utilities, or directly to consumers. Although the Authority treats the water, unsafe levels of PFOA and PFOS remain in the drinking water because of these chemicals’ stable carbon-fluorine bonds and resistance to environmental breakdown processes. Studies, including one by an independent science panel, have shown that absorption of these chemicals may cause long-term physiologic changes and damage to the blood, liver, kidneys, immune system, and other organs, and an increased risk of developing cancer, immunotoxicity, thyroid disease, ulcerative colitis, and high cholesterol.
Plaintiffs allege that defendants continue to discharge these chemicals into the Tennessee River despite knowing of the persistence and toxicity of PFOA and PFOS. Further, defendants are aware that tests of the Authority’s treated water have shown elevated levels of these chemicals. The Authority has consistently found PFOA levels at 0.1 ppb and PFOS levels at 0.19 ppb in its treated water, where 0.07 ppb is the current [Fn] EPA Health Advisory Level for both of those chemicals. As a result of these levels, the Authority has incurred costs of testing its treated water, implementing pilot programs to develop more effective methods for the removal of PFOA and PFOS, and attempting to locate a new water source.
Representative Plaintiffs and the proposed class are owners or possessors of property who consume water supplied by the Authority and other water utilities that receive water from the Authority. at 2. They allege personal injuries from their exposure to unsafe levels of PFOA and PFOS in their domestic water supplies, including elevated levels of those chemicals in their blood serum. In 2010, the federal Agency for Toxic Substances and Disease Registry (“ATSDR”) analyzed the blood serum of 121 customers of the Authority, including some of the Representative Plaintiffs and members of the proposed class, for PFOA and PFOS, and found an association between elevated levels of those chemicals and the use of drinking water supplied by the Authority. In addition to personal injuries, Representative Plaintiffs and the proposed class claim diminution in their real property values, and out-of-pocket costs for purchasing water filters and bottled water.
[ ***] E. Battery (Count V)
To state a claim for battery under Alabama law, a plaintiff must establish that: (1) the defendant touched the plaintiff; (2) the defendant intended to touch the plaintiff;[3] and (3) the touching was conducted in a harmful or offensive manner. [cc] Rest. (2d) of Torts § 18 (1965)). Representative Plaintiffs and the proposed class allege that defendants “touched or contacted” them “through their release of PFOA, PFOS, and related toxic chemicals” into plaintiffs’ water supply. Those plaintiffs further allege that defendants “knew that their intentional acts would be substantially certain to result in such contact,” and that such touching or contact “was and is harmful and offensive.”
1. Lack of physical injury
Defendants raise three arguments in support of their motion. First, they argue that plaintiffs have suffered no manifest physical injury. This contention is unavailing, because a claim for battery in Alabama does not require an actual injury to the body as an element of the claim. [cc]
2. Consent to the touching or contact
Second, defendants contend that dismissal is warranted because plaintiffs consented to the contact by voluntarily drinking the water. Plaintiffs claim that they did not “consent to their ingestion of and exposure to these toxic chemicals,” and, alternatively, allege that “consent is at most an affirmative defense to this claim that presents factual issues that cannot be resolved on a motion to dismiss.” [c] Indeed, it is apparent from the face of the amended complaint that Representative Plaintiffs and the proposed class use water filters or buy bottled water now, and once, voluntarily consumed the water prior to learning of the contamination. Thus, the question this court must resolve is whether the voluntary ingestion of water from the Authority (at least before they learned of the contamination) constitutes consent to the ingestion of the contaminants in the water. Because defendants failed to cite any Alabama law that suggests that plaintiffs’ consumption *1237 of the water constituted consent to their uninformed ingestion of PFOA and PFOS, the court will defer addressing this issue until the summary judgment stage.
3. Intent
Finally, defendants contend that dismissal is warranted on the battery claim because defendants did not specifically intend to touch or contact plaintiffs. Intent can be satisfied by substantial certainty [c] Plaintiffs allege that defendants are aware that they discharge PFOA and PFOS into the water, and that they know those chemicals appear at harmful levels in the treated water sold by the Authority. These facts are sufficient to give rise to a reasonable inference that defendants discharge PFOA and PFOS into the Tennessee River with substantial certainty that the water will be used for drinking and other household purposes.
For all these reasons, the motion to dismiss the battery claim is due to be denied.
[***] For the reasons stated above, 3M and Dyneon’s motion to dismiss is [***] as to …battery (Count V) [and other omitted] claims, and plaintiffs may proceed …, with the understanding that they may not pursue a private nuisance claim or negligence claims based on personal injuries. The court will reserve ruling on the sufficiency of the class allegations until a later date.
Note 1. Is the knowledge intent standard necessary to the battery claim on these facts? Could a purpose intent standard have worked as well? What sort of evidence do you think plaintiffs would need to show in proving either kind of intent? Is the difference one of kind or of degree?
Note 2. Tort law is one of the tools in environmental advocacy, whether it takes the shape of impact litigation, class actions or doctrinal developments to permit certain sorts of lawsuits. Professor Sanne Knudsen has written on the way that chemical latency could frustrate tort law’s causation requirement, for instance, and advocated the development of causation frameworks that can account for the complexities of what she has called “long-term torts” with significant ecological harms. Sanne H. Knudsen, The Long-Term Tort: In Search of a New Causation Framework for Natural Resources Damages. 108 Nw. U. L. Rev. 475 (2014), https://digitalcommons.law.uw.edu/faculty-articles/15/
Given what you know about the purposes of tort law and its capacities for change over time, does tort law seem like a good vehicle for achieving greater environmental justice? What do you imagine are the drawbacks, limits and costs of using tort law in this way?
Note 3. The court acknowledges that consent could defeat the plaintiffs’ claim because members of the class voluntarily drank polluted water; it will require resolution at a later date and this litigation is still unresolved. What do you think descriptively and normatively of this concept of consent?
Variations in Mental State
Another complexity in the determination of intent is that certain states of mind can negate intent though it’s not always intuitive which ones. Mental illness or disability does not negate intent so long as the defendant had the capacity to form the requisite intent (which is a question of fact for the jury). However, early case law is often not very nuanced in assessing mental states. Some cases may refer to people with mental illness or disabilities as “deficient” or abnormal or worse. It is worth paying attention to how advances in psychology make both the rhetoric and the substance of tort law more equitable over time. Being a child does not necessarily negate intent; the question will depend on how the jurisdiction treats youths and what we can determine about what they know.
Being drugged against one’s will most likely negates intent for everything that follows or a good deal of it, given that your powers of volition will be severely impaired. But being drunk does not negate intent. Nor does being mistaken about the facts; if you pick up a very lifelike-looking toy gun believing it to be a gun and try to shoot someone, your actions are no less culpable for the fact that you were mistaken about the status of the gun. This is different from bad aim or an intent to act that produces a different outcome from the particular one intended, which arose above in discussion of the doctrine of transferred intent. Transferred intent applies only to the intent necessary for five torts: battery, assault, false imprisonment, trespass to land and trespass to chattels.
Check Your Understanding (2-2)
Question 1. True or false: Genuine mistakes are often a means of negating intent for the purposes of finding an intentional tort.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. An epileptic has a sudden, violent seizure during church and, without warning, she knocks a smaller, frail individual seated next to her to the ground. He sues. What theory is likeliest to be most successful for him, and why?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 3. Which of the following facts, if true would most likely change the outcome of Villa v. Derouen (the pressurized oxygen coworker case)?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Classmate’s Kick Hypothetical: A twelve year-old boy, Abe, kicks another boy, Ed, while they are seated in their classroom. The kick makes contact with Ed’s kneecap which has, unbeknownst to Abe, a particular sensitivity. The kick causes intense damage and ensuing infection. Abe feels bad, but protests that he never intended this kick to hurt, and besides, he had no idea about Ed’s hidden condition. Abe’s father, who went to the same school as these young boys, and remembers fond games of tackle football with Ed’s father, says he is sure he has seen these boys wrestling on the playground before. How is this any different, he asks. He thinks that boys need to be able to engage in physical activity and roughhousing and this would be a ridiculous thing to sue over; can’t they laugh it off? Two surgeries later, Ed and his family aren’t laughing.
How would you use the rule you formulated in Villa to address this hypothetical? Or, if your rule(s) do not seem to govern this case, practice creating a new, descriptively accurate statement of law that analogizes or distinguishes this fact pattern from Villa.
Note 1. Eggshell Plaintiff or Thin Skull Plaintiff Doctrine. This hypothetical is loosely based on the facts of Vosburg v. Putney, a classic torts case which stands for several points of law (including on intent, context for conduct, and damages) (50 N.W. 403, Wis.) (1891). With respect to damages, it holds that just because the amount of harm was unexpected, the defendant is no less liable if their conduct otherwise satisfies the element of the tort. Sometimes known as the eggshell plaintiff or “thin skull” plaintiff doctrine, this principle predates Vosburg but is often cited in connection with it. The doctrine holds that the defendant “takes their plaintiff as they find them.” If a plaintiff has a thin, more easily injured skull, that may not be apparent to the defendant yet the defendant will still be liable for the extra damages this particular plaintiff suffers so long as the defendant’s conduct met the elements of the tort in question. Even if a plaintiff is extraordinarily susceptible to harm (they have brittle bones or for whatever reason the harm they suffer from the tortious conduct is worse than another plaintiff’s would have been), this doctrine makes it the defendant’s, not the plaintiff’s problem to resolve. Note that the eggshell doctrine does not only apply to pre-existing conditions; it can apply to a predisposition towards suffering worse harm or an unfortunately worse outcome. The standard for harm is thus not “objective” (what would a reasonable person’s injuries have been under the circumstances”) but “subjective” (what did this person actually suffer, on account of the defendant’s misconduct)?
In Smith v. Leech Brain & Co., 2 Q.B. 405 (1962), the plaintiff, William Smith, was injured at work when his employer failed to provide adequate safeguards to prevent injury in the presence of molten metal. Smith sustained a serious burn on his lip from a spattering of molten metal, and while only the lip was burned, the wound failed to heal. Smith eventually developed cancer at the point of the burn which caused his death. His wife sued for damages and won. The court rejected the defendant’s arguments that the damages suffered were out of proportion to the harm by the defendant. Though that was a negligence case, it illustrates the application (in all domains of tort law) of the eggshell plaintiff rule.
Note 2. One scholar explores the use of the eggshell plaintiff doctrine to deal with pre-existing conditions that are not created by new tortious conduct but significantly worsened by it. Dean Camille Nelson analyzes when courts have used the doctrine in service of corrective justice, and considers its analogous use to redress harms to women and people of color for whom pre-existing traumas or particular conditions might be triggered or worsened by tortious conduct:
“The extent to which the Thin skull doctrine has been stretched is evidenced by the case of Warren v. Scruttons Ltd.[4] The plaintiff had a pre-existing ulcer on his left eye when he cut his finger on a wire on the defendant’s equipment. The wire apparently had a type of chemical on it, described as “poison,” which led the plaintiff to contract a fever and a virus. This resulted in further ulceration of the eye. The defendant was found liable and the court held that, “any consequence which results because the particular individual has some peculiarity is a consequence for which the tortfeasor is liable.”[5] In terms of equality arguments,[6] women have been compensated for injuries specific to our sex. For instance, the Thin skull doctrine has been applied to compensate pregnant women who have suffered miscarriages or who have had stillborn children.[7] Similarly, where a woman whose ovaries were weakened by a previous operation suffered injury as a result of a sudden stoppage of a train, the court granted recovery on the basis that “the weak will suffer more than the strong.”[8] If sex does not present a bar to recovery based upon particular vulnerabilities, why should race? Race-related, or racism-related mental disorders, might similarly be infused into the Thin-skull doctrine as it has generally allowed for recovery based upon such mental vulnerabilities. Alternatively, this might more properly justify consideration of the Eggshell personality doctrine. If a physical injury triggers mental suffering or nervous disorders, the defendant must pay the resultant damages, even if they are more serious than might be expected.[9] If, however, there is a pre-existing mental condition rendering the plaintiff particularly vulnerable, courts may still allow recovery, thus transforming the thin-skull plaintiff into one a plaintiff with an eggshell personality.
Camille A. Nelson, Considering Tortious Racism, 9 DePaul J. Health Care L. 905, 960–61 (2005)
Note 3. Having read about the eggshell plaintiff and begun to consider its possible extensions and limits, revisit your understanding of intent. Might it make sense to apply the eggshell plaintiff doctrine only in cases in which there was a particular intent level, such as specific intent to harm? What is the effect of its applicability to not just intentional torts but negligence? Which of tort law’s purposes is most apparently driving the robust application of this doctrine?
Check Your Understanding (2-3)
Question 1. Which of the following statements is true of the eggshell plaintiff doctrine:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Expand On Your Understanding – Intent Hypotheticals
Review the following hypotheticals, which feature various forms of violence to the body as a means of testing the scope of the intent requirement. The questions are designed both to test some of the rules you already know as well as to add to your understanding. Do not feel too concerned if you are learning some rules for the first time in addition to testing and reaffirming some rules you have already learned. Turn each card to reveal the answer.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. Mr. Villa is a Puerto Rican native who came to the United States for the first time in 1973 and has a strong Spanish accent.
2. The proposed class consists of “all owners and possessors of property who use water provided by the West Morgan-East Lawrence Water and Sewer Authority, the V.A.W. Water System, the Falkville Water Works, the Trinity Water Works, the Town Creek Water System, and the West Lawrence Water Cooperative.”
3. A plaintiff can establish “intent” by showing that the defendant “desires or is substantially certain of the injury to result from his or her act.” [c]
4. Warren v. Scruttons Ltd., (1962) 1 Lloyd’s Rep. 497 (Q.B.D.).
5. Id. at 502.
6. See Dennis Klimchuk, Causation, Thin Skulls and Equality, 11 Can. J.L. & Juris. 115 (1998) (advocating for the entrenchment of tort-like Thin skull principles in criminal law). Where, for instance, a victim is stabbed, looses [sic] a significant amount of blood, denies a blood transfusion on religious grounds and dies, Klimchuk states that the thin-skull rule should allow for the finding of proximate cause –to do otherwise would violate principles of equality. The defendant should be found culpable for the death of the victim.
7. Malone v. Monongahela Valley Traction, 104 Va. 417 (1927); Schafer v. Hoffman, 831 P.2d 897 (1992).
8. Linklater v. Minister for Railways, [1900] 18 N.Z.L.R. 526, 540.
9. Linden, supra note 236, at 330. Linden points out that in a case involving the claim for mental suffering by a plaintiff as a result of being thrown against a seat of a streetcar when it collided with a train, the Supreme Court of Canada recognized that the “nervous system is as much a part of a man’s physical being as muscular or other parts.” Toronto Railway Co. v. Toms, 44 S.C.R. 268, 276 (1911). Vargas v. John Labatt Ltd., [1956] O.R. 1007. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/02%3A_Intentional_Torts/2.01%3A_Intent.txt |
Assault: Elements
• Action, or threat of an action, performed with
• Intent, that
• Creates in the plaintiff a reasonable apprehension of
• Imminent bodily harm
Battery: Elements
• Unauthorized bodily contact by the defendant, which is
• Harmful or offensive in nature, and performed with
• Intent to make contact
Exam Tip: When you see a battery claim, look for an assault claim. Sometimes they travel together; sometimes the fact pattern expressly triggers one claim but not the other, say because a plaintiff was not ever touched (no battery) even if they were threatened with imminent harm or because a plaintiff was touched in an offensive way but was not awake or aware during the time (no assault).
I de S et ux. v. W de S, At the Assizes (1348)
I de S and M, his wife, complain of W de S concerning this, that the said W, in the year, etc., with force and arms did make an assault upon the said M de S and beat her. And W pleaded not guilty. And it was found by the verdict of the inquest that the said W came at night to the house of the said I and sought to buy of his wine, but the door of the tavern was shut and he beat upon the door with a hatchet which he had in his hand and the wife of the plaintiff put her head out of the window and commanded him to stop, and he saw and he struck with the hatchet but did not hit the woman. Whereupon the inquest said that it seemed to them that there was no trespass since no harm was done. THORPE, C.J. There is harm done and a trespass for which he shall recover damages since he made an assault upon the woman as has been found, although he did no other harm. Wherefore tax the damages, etc. And they taxed the damages at half a mark. Thorpe awarded that they should recover their damages, etc., and that the other should be taken. And so note that for an assault a man shall recover damages, etc.
Note 1. Prior to this case, the law was uncertain on the question of whether an action could succeed if the defendant’s actions hadn’t caused physical harm (what we now know as a battery). The tavern owner and his wife lost before “the inquest” (the equivalent of the lower court) and appealed to the courts of assize (England’s traveling courts, which were organized into six judicial circuits). There the plaintiffs won. The case is credited with being the origins of the tort of assault.
Note 2. In some instances, such as this case, an assault may lie when an attempted battery has failed to make contact with the plaintiff. However, there does not need to be an attempted battery for a plaintiff to make out a successful claim. Revisit the elements of assault and battery, below. Can you imagine instances in which there is a clear case of assault and just as clearly no case of battery?
Hypothetical: the Zany Meat Inspector
Ibrahim, an employee of Meatpacking Company, Inc., sustained serious injuries to his mouth as a result of the actions of Peter, a meat inspector for the United States Department of Agriculture. A truck shipment of beef arrived at the receiving dock of Meatpacking Co’s plant. Ibrahim was one of the employees assigned to unload this truck. While doing so, he was suddenly and without warning jumped by Peter, the inspector (whom he knew as a friend in the industry and former co-worker). Peter screamed “Boo!”, pulled Ibrahim’s wool stocking hat over his eyes, climbed onto his back and began to ride him piggyback. As a result of this prank, Ibrahim fell forward and struck his face on some meat hooks located on the receiving dock. Consequently, he suffered severe injuries to his mouth and teeth.
Is this an intentional tort or negligence, and why?
Assuming the former, how would you analyze the intent issue?
(322 P.3d 755)
John Reynolds appeals from the trial court’s dismissal of his intentional tort claims against Bret MacFarlane. We affirm in part, reverse in part, and remand to the trial court.
On August 5, 2009, MacFarlane walked into the break room at his workplace where his coworker, Reynolds, was standing in front of the microwave oven. Reynolds was holding a ten dollar bill somewhat loosely in his hand. Reynolds was unaware of MacFarlane’s presence. MacFarlane approached Reynolds from behind and, without touching Reynolds, quickly snatched the ten dollar bill. Reynolds immediately spun around and faced MacFarlane. MacFarlane then stated, “That was too easy,” and returned the ten dollar bill to Reynolds. As MacFarlane began to walk away, Reynolds struck MacFarlane, splitting his lip. MacFarlane asked why he hit him. Reynolds replied, “You pissed me off.” Shortly after this incident, the two interacted with a larger group of employees outside, and the employees joked around and completed their break. The two men were together at an offsite employee lunch some days later, and on multiple occasions after the incident Reynolds sought out and voluntarily spoke with MacFarlane in MacFarlane’s work area.
Nevertheless, the incident was reported to the parties’ supervisor. During the ensuing investigation, Reynolds reported to the supervisor that the incident was “nothing” and that any contact between the parties was accidental. Reynolds was ultimately punished with a one-day suspension without pay for striking another employee. Thereafter, Reynolds received medical treatment for anxiety, which Reynolds explained to his physician had resulted from difficulties at work.
Nearly one year later, Reynolds filed a complaint against MacFarlane, alleging assault and intentional infliction of emotional distress. At a bench trial, the parties stipulated to the dismissal of Reynolds’s claim for intentional infliction of emotional distress, but Reynolds moved to amend his complaint to include a claim for battery. The court granted Reynolds’s motion. After hearing the evidence, the trial court found MacFarlane “to be more credible in that [his] testimony was more consistent and was corroborated by multiple parties.” Accordingly, the court based its findings of fact largely on MacFarlane’s testimony. The trial court concluded that Reynolds had not met his burden of proof to show that MacFarlane had committed an assault or a battery against him and then dismissed the case with prejudice. Reynolds appeals.
I. Assault
Reynolds challenges the trial court’s conclusion that he failed to prove assault. As an appellate court, we give great deference to the trial court’s role as a fact finder and will review its findings of fact only for clear error. [c] We review the trial court’s legal conclusions for correctness. [c] *758 To the extent that Reynolds challenges the trial court’s findings of fact, he merely reargues the evidence in favor of his position and does not adequately marshal the evidence supporting the trial court’s findings as required by our rules of appellate procedure. See Utah R.App. P. 24(a)(9) ( “A party challenging a fact finding must first marshal all record evidence that supports the challenged finding.”). Because of this failure to marshal, we accept the facts as articulated by the trial court. [c]
Under Utah law, “[a]n assault is an act ‘(a) … intending to cause a harmful or offensive contact with the person of the other … or an imminent apprehension of such a contact’ by which ‘(b) … the other is … put in such imminent apprehension.’” Tiede v. State, 915 P.2d 500, 503 n. 3 (Utah 1996) (omissions in original) (quoting Restatement (Second) of Torts § 21 (1965)). The trial court concluded that Reynolds could not prevail on his assault claim for three reasons. First, the trial court determined that Reynolds failed to establish that he was in imminent apprehension of harmful or offensive contact because he was not aware of MacFarlane’s presence until after he spun around to find out who had taken his ten dollar bill. Second, the trial court ruled that even though MacFarlane intended to take the ten dollar bill, MacFarlane did not intend to cause imminent apprehension of harmful contact in Reynolds by doing so. Third, the trial court ruled that Reynolds suffered no injury or damages as a result of MacFarlane’s actions. Reynolds challenges each of these conclusions. We need address only Reynolds’s first challenge because it is dispositive to our conclusion that the trial court correctly determined that Reynolds failed to prove that an assault occurred.
Reynolds concedes that a plaintiff complaining of assault “must be aware of the defendant’s act.” See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 44 (5th ed.1984) (“Since the interest involved is the mental one of apprehension of contact, it should follow that the plaintiff must be aware of the threat of contact, and that it is not an assault to aim a gun at one who is unaware of it.”). In Reynolds’s view, this requirement is satisfied in this case because he “was keenly aware of what happened to him” “the moment the money was snatched from his hand.”
However, a plaintiff complaining of assault cannot be in apprehension of harmful or offensive contact unless he is aware of such contact before the threat of the contact is accomplished or has dissipated. “The plaintiff’s subjective recognition or apprehension that [he] is about to be touched in an impermissible way is at the core of [an] assault claim.” 1 Dan B. Dobbs et al., The Law of Torts § 38, at 97 (2d ed.2011). As section 22 of the Restatement explains, “An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.” Restatement (Second) of Torts § 22 (1965); see also id. § 22 cmt. a (“[T]he defendant is not liable if his efforts to inflict the bodily contact have been abandoned or frustrated before the other is aware of them, since in such case the other is not put in the required apprehension.”). Reynolds has directed us to no authority to the contrary.
As a result, we conclude that the trial court correctly ruled that Reynolds was not in imminent apprehension of harmful or offensive contact because he was not aware of MacFarlane’s presence until after MacFarlane took the ten dollar bill from Reynolds’s hand. … Accordingly, Reynolds did not prove that MacFarlane committed an assault against him, and the trial court correctly dismissed his assault claim.
II. Battery
Reynolds also challenges the trial court’s determination that he failed to establish the elements of a battery. We review *759 the trial court’s legal conclusions for correctness. [c] Utah has adopted the Restatement (Second) of Torts to define the elements of the intentional tort of battery. Wagner v. State, 2005 UT 54, ¶ 16, 122 P.3d 599. Consequently, an actor is liable for battery if “‘(a) he acts intending to cause a harmful or offensive contact with the person of the other … or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.’” Id. (quoting Restatement (Second) of Torts § 13 (1965)).
In this case, the trial court found that MacFarlane did not touch Reynolds when he grabbed the ten dollar bill from Reynolds’s hand. Because “MacFarlane never touched or came into contact with Reynolds,” the trial court concluded that Reynolds did not meet his burden of proof to show that a harmful contact resulted from MacFarlane’s action.[1] Reynolds asserts that the trial court’s conclusion is erroneous because MacFarlane’s grabbing of an object—the ten dollar bill—from his hand was sufficient contact with his person to constitute a battery.
For the intentional tort of battery, harmful or offensive contact “includes all physical contacts that the individual either expressly communicates are unwanted, or those contacts to which no reasonable person would consent.” Id. ¶ 51. But “it is not necessary that the plaintiff’s actual body be disturbed.” Restatement (Second) of Torts § 18 cmt. c (1965). Rather, “[p]rotection of the interest in freedom from intentional and unpermitted contacts with the plaintiff’s person extends to any part of the body, or to anything which is attached to it and practically identified with it.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 39 (5th ed.1984) (footnote omitted). “Thus, if all other requisites of a battery against the plaintiff are satisfied, contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in the plaintiff’s hand, will be sufficient” to support a battery claim because the “interest in the integrity of [a] person includes all those things which are in contact or connected with the person.” Id. § 9, at 39–40 (footnotes omitted); *** Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967) (“The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body.”). But see Workman v. United Fixtures Co., 116 F.Supp.2d 885, 896–97 (W.D.Mich.2000) (concluding that even if the defendant removed a paper from the plaintiff’s hand, “nothing in the record suggests that [the defendant’s] alleged actions amounted to an offensive contact battery”). We consider the above authorities as persuasive and not inconsistent with our supreme court’s battery analysis.
In this case, MacFarlane’s act of taking the ten dollar bill held loosely in Reynolds’s hand was sufficient contact to constitute the contact element of battery, see Wagner, 2005 UT 54, ¶ 16, 122 P.3d 599, notwithstanding the fact that MacFarlane did not touch Reynolds’s body. When held in his hand, the ten dollar bill was connected to Reynolds such that when MacFarlane snatched the bill from Reynolds, MacFarlane’s act resulted in offensive contact with Reynolds’s person. The intent element of battery was also met in this case because *760 the trial court found that MacFarlane intended to take the bill from Reynolds’s hand when he acted. See id. ¶ 29 (“[T]he only intent required to commit a battery is the intent to make a contact, not an intent to harm, injure, or offend through that contact.”). Accordingly, we conclude that the trial court erred in dismissing Reynolds’s battery claim because the court’s factual findings establish both elements of the claim.
The trial court determined that Reynolds suffered no damages as a result of the August 5, 2009 incident. The Utah Supreme Court has explained that “[a] harmful or offensive contact is simply one to which the recipient of the contact has not consented either directly or by implication.” Id. ¶ 51. “[H]armful or offensive contact is not limited to that which is medically injurious or perpetrated with the intent to cause some form of psychological or physical injury.” Id. (emphasis added). Instead, harmful or offensive contact “includes all physical contacts that the individual either expressly communicates are unwanted, or those contacts to which no reasonable person would consent.” Id. Moreover, “[c]ommon law battery does not require that the nonconsensual contact be injurious. Rather, proof of an unauthorized invasion of the plaintiff’s person, even if harmless, entitles him to at least nominal damages.” Lounsbury v. Capel, 836 P.2d 188, 192–93 (Utah Ct.App.1992) (emphasis added); see also id. at 196 (“[A plaintiff] need not prove injury to sustain his battery claim; if he proves no more than the ‘offense’ of the nonconsensual touching, he is entitled to nominal damages.”); Keeton et al. § 9, at 41 (“[T]he defendant is liable not only for contacts which do actual physical harm, but also for those relatively trivial ones which are merely offensive and insulting.”). “Damages for pain, suffering, ‘psychological problems’ and the like, however, may … be recovered only to the extent that [the plaintiff] proves they were a proximate result” of the nonconsensual touching. Lounsbury, 836 P.2d at 196.
Here, the trial court found that “no injury resulted to Reynolds as a direct and proximate cause of MacFarlane’s actions.” Thus, the trial court ruled that Reynolds’s claimed damages—the one-day suspension and his medical issues following the break-room incident with MacFarlane—were not proximately caused by MacFarlane’s act. Reynolds has not effectively challenged this ruling on appeal. However, because we have concluded that MacFarlane committed a battery, Reynolds is entitled to nominal damages. See id. at 192–93 (“[U]nauthorized invasion of the plaintiff’s person, even if harmless, entitles him to at least nominal damages.”). Accordingly, we remand to the trial court for an award of nominal damages to Reynolds for battery.
III. Attorney Fees
¶ 18 MacFarlane requests an award of attorney fees incurred on appeal, pursuant to rule 33 of the Utah Rules of Appellate Procedure. MacFarlane argues that Reynolds’s appeal in this matter is frivolous and asserts that he is therefore entitled to attorney fees.
¶ 19 “[I]f the court determines that a[n] … appeal taken under these rules is either frivolous or for delay, it shall award just damages, which may include … reasonable attorney fees, to the prevailing party.” Utah R.App. P. 33(a). A frivolous appeal “is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.” Id. R. 33(b). Because we reverse the trial court’s ruling on one of the issues raised, Reynolds’s appeal is clearly not frivolous. We therefore decline to award MacFarlane the attorney fees that he has incurred on appeal.
In sum, the trial court correctly concluded that Reynolds did not establish the elements of assault, because Reynolds was not aware of MacFarlane’s imminent contact. We affirm the dismissal of Reynolds’s assault claim, reverse the dismissal of Reynolds’s battery claim, and remand to the trial court for judgment in favor of Reynolds on his battery claim and for an award of nominal damages.
Note 1. Given that Reynolds was awarded only nominal damages, do you imagine it was still worth the lawsuit? Why or why not?
Note 2. Is it an assault to point a toy gun at someone’s head? How about a real gun that is unloaded? How about a loaded gun that one brandishes in the air near another person’s head, carelessly, saying, “don’t worry, I’m not going to shoot you”? Ground your answers in the elements of assault.
Note 3. An early case held that it was correct to find an assault had been committed when a defendant aimed an unloaded gun at the plaintiff and pulled the trigger twice, frightening the victim who was unaware the gun was unloaded. The court explained its ruling thus:
One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we complain. And it surely is not unreasonable for a person to entertain a fear of personal injury, when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may be loaded, and may occasion his immediate death. The business of the world could not be carried on with comfort, if such things could be done with impunity. Beach v. Hancock, 27 N.H. 223, 229–30 (1853).
Note 4. Who should decide whether a person’s fear, or “anticipation of imminent bodily harm” is reasonable? Is this an objective or subjective standard, descriptively and which should it be, normatively, in your view?
Note 5. Consider Dean Nelson’s earlier application of the “thin skull” doctrine to women and people of color. Are there normative justifications for tailoring harms to account of societal imbalances, such as sexism, racism, and other structural inequalities? How about arguments against doing so because of the value of not unsettling the law? Is there a way to be anti-racist, or progressive in other respects, without such revisiting standards and doctrines? What does that look like and what are the values, and systemic costs, of any such approach?
Note 6.Reynolds cited the next case, Fisher, for the rule that offensive contact with something touching the plaintiff’s body can be a battery, even without the defendant’s touching the body directly. Consider the work the rule does in this context.
(424 S.W. 2d 627)
This is a suit for actual and exemplary damages growing out of an alleged assault and battery. The plaintiff Fisher was a mathematician with the Data Processing Division of the Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly called NASA, near Houston. The defendants were the Carrousel Motor Hotel, Inc., located in Houston, the Brass Ring Club, which is located in the Carrousel, and Robert W. Flynn, who as an employee of the Carrousel was the manager of the Brass Ring Club. Flynn died before the trial, and the suit proceeded as to the Carrousel and the Brass Ring. Trial was to a jury which found for the plaintiff Fisher. The trial court rendered judgment for the defendants notwithstanding the verdict. The Court of Civil Appeals affirmed. 414 S.W.2d 774. The questions before this Court are whether there was evidence that an actionable battery was committed, and, if so, whether the two corporate defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn.
The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one day’s meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon. The guests were asked to reply by telephone whether they could attend the luncheon, and Fisher called in his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet style, and Fisher stood in line with others and just ahead of a graduate student of Rice University who testified at the trial. As Fisher was about to be served, he was approached by Flynn, who snatched the plate from Fisher’s hand and shouted that he, a Negro, could not be *629 served in the club. Fisher testified that he was not actually touched, and did not testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by Flynn’s conduct in the presence of his associates.
The jury found that Flynn ‘forceably dispossessed plaintiff of his dinner plate’ and ‘shouted in a loud and offensive manner’ that Fisher could not be served there, thus subjecting Fisher to humiliation and indignity. It was stipulated that Flynn was an employee of the Carrousel Hotel and, as such, managed the Brass Ring Club. The jury also found that Flynn acted maliciously and awarded Fisher \$400 actual damages for his humiliation and indignity and \$500 exemplary damages for Flynn’s malicious conduct.
The Court of Civil Appeals held that there was no assault because there was no physical contact and no evidence of fear or apprehension of physical contact. However, it has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. 1 Harper & James, The Law of Torts 216 (1956); Restatement of Torts 2d, §§ 18 and 19. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:
‘The interest in freedom from intentional and unpermitted contacts with the plaintiff’s person is protected by an action for the tort commonly called battery. The protection extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his hand will be sufficient; * * * The plaintiff’s interest in the integrity of his person includes all those things which are in contact or connected with it.’
Under the facts of this case, we have no difficulty in holding that the intentional grabbing of plaintiff’s plate constituted a battery. The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body. ‘To constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching anything from plaintiff’s hand or touching anything connected with his person, when, done in an offensive manner, is sufficient.’ Morgan v. Loyacomo, 190 Miss. 656 (1941).
Such holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v. Brashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed ‘an assault or trespass upon the person’ by snatching a book from the plaintiff’s hand. The jury findings in that case were that the defendant ‘dispossessed plaintiff of the book’ and caused her to suffer ‘humiliation and indignity.’
The rationale for holding an offensive contact with such an object to be a battery is explained in 1 Restatement of Torts 2d s 18 (Comment p. 31) as follows:
Since the essence of the plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one’s body as to be universally regarded as part of the person.’
*630 We hold, therefore, that the forceful dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to constitute a battery, and the trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages.
In Harned v. E-Z Finance Co., 151 Tex. 641 (1953), this Court refused to adopt the ‘new tort’ of intentional interference with peace of mind which permits recovery for mental suffering in the absence of resulting physical injury or an assault and battery. This cause of action has long been advocated by respectable writers and legal scholars. See, for example, Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956); Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63 (1950); Prosser, Intentional Infliction of Mental Suffering: A New York, 37 Mich.L.Rev. 874 (1939); 1 Restatement of Torts 2d s 46(1).
However, it is not necessary to adopt such a cause of action in order to sustain the verdict of the jury in this case. The Harned case recognized the well established rule that mental suffering is compensable in suits for willful torts ‘which are recognized as torts and actionable independently and separately from mental suffering or other injury.’ 254 S.W.2d at 85. Damages for mental suffering are recoverable without the necessity for showing actual physical injury in a case of willful battery because the basis of that action is the unpermitted and intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body. Restatement of Torts 2d s 18. Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting. Prosser, supra; Wilson v. Orr, 210 Ala. 93 (1923). We hold, therefore, that plaintiff was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury.
*** [Editor’s note: the discussion of damages and the corporations’ vicarious liability for the actions of Flynn are omitted for the sake of brevity.]
After the jury verdict in this case, counsel for the plaintiff moved that the trial court disregard the answer to issue number eight (no authorization or approval of Flynn’s conduct on the occasion in question) and for judgment upon the verdict. The trial court erred in overruling that motion and in entering judgment for the defendants notwithstanding the verdict; and the Court of Civil Appeals erred in affirming that judgment.
The judgments of the courts below are reversed, and judgment is here rendered for the plaintiff for \$900 with interest from the date of the trial court’s judgment, and for costs of this suit.
Note 1. The rule expressed in Fisher, that rudely or angrily removing a plate from someone’s hands is a battery reflects what some courts have referred to as the doctrine of extended personality. If something is touching one’s body—such as a purse, backpack, or headphones, or if one’s body is closely connected to or interwoven with something (such as a jockey riding a horse or a person sitting on a stool or swinging on a swing), then interference with the thing or animal can constitute battery so long as the other elements are met. What facts in Fisher would you change to make this action fail to be a battery, descriptively? How about normatively, if the answer differs?
Note 2. The court in Fisher declined to find IIED, perhaps because it could find a technical battery had happened, and it could justify awarding damages in connection with the mistreatment by an employee. What do you think of the use of battery as a tort here? Is it inappropriate (in potentially twisting the concept of battery to offer redress on these facts)? If it is appropriate is it sufficient (in actually redressing the victim’s harms)? Should an action have been allowed for IIED?
Note 3. The general rule is that tort law does not permit recovery for mere insults or rudeness; to do so would turn the courts into overburdened policers of manner and feelings. But in some cases, the reluctance to allow a claim for IIED may seem more or less satisfying, given the facts. See Dawson v. Zayre Dep’tStores, 346 Pa. Super. 357, 360 (1985) (stating “we believe that this conduct merely constitutes insulting namecalling from which no recovery may be had” and distinguishing Fisher and other cases, in which service was denied or customers asked to leave the store from a case in which an employee called a customer an extremely harmful racial epithet when in an argument over a lay-away ticket). Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133 (1982) argued forcefully in favor of the creation of a special tort to address hateful or racist speech but his calls have gone unheeded). What benefits would flow from the creation of such a tort? What costs or challenges would it create?
Check Your Understanding (2-4)
Question 1. A student, disliking the grade they received on their Contracts midterm, went to their professor’s office hours to complain. When the professor held firm to her original assessment of the exam, the student pulled out a copy of Black’s Dictionary and wielded it over the professor’s head, snarling as they did so, “Downstairs in my locker, I have a steel-edged ruler that’s a lot sharper than this law dictionary! I can’t skip my next two classes because participation is graded, but after that, I’m going to come back here and slit your throat! If you’re not here, I’m going to make an appointment during your office hours to slit your throat then!” Laughing maniacally, the student then wandered off to Torts class.
If this fails as an assault, it will be because:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. With respect to the bolded words in the actual jury instruction below, does the court use an objective or subjective standard?
Question No. 4 on the verdict asks whether Defendant knew or had been notified that Defendant’s dog had previously injured or caused damage to a person, dog, cat or property. The owner must have notice the dog caused injury to a person, domestic animal or property. Plaintiff must show by the greater weight of the credible evidence that the Defendant had such notice. Notice means actual notice the dog caused injury.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. The trial court explained,
Reynolds cited case law from other jurisdictions holding that the intentional snatching of an object from one’s hand could constitute an offensive invasion of one’s person, so as to constitute an actual, physical contact. However, the Court concludes that Utah has not so extended the definition of battery to include such actions as actual contact. If the law in Utah were to be so extended, the Court’s findings would give rise to a battery by MacFarlane. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/02%3A_Intentional_Torts/2.02%3A_Revisiting_Assault_and_Battery.txt |
Zahr K. Said
Elements
• Action with
• Specific intention to confine someone to a defined or bounded place
• That directly or indirectly causes actual and unlawful confinement and
• Harm, or awareness of the confinement
(2 Haw. App. 655)
This is an appeal from an order granting a directed verdict on a claim of false imprisonment. We reverse. The complaint herein asserted two claims for relief: one based on negligence and one on false imprisonment. The court below directed a verdict on the false imprisonment claim and the jury found for the appellee on the negligence claim.
Basically, appellant testified that she and appellee had been girlfriend and boyfriend. She had come to the conclusion that she did not wish to go out with him anymore. On the day in question, he came to see her and asked her to go with him on a date that evening. She refused. After some conversation, he asked her to at least go to the store with him and she consented on the condition, which he agreed to, that he would bring her right back. She then entered his car and they proceeded to the store and returned, stopping in front of her house. She was seated in the car with the car door open when he suddenly drove off. At some point thereafter, she fell, was pushed or jumped from the car, sustaining the injuries complained of. [***]
Appellee contends, however, that since appellant originally entered the car voluntarily, some threat against her to prevent her leaving must have been made or she was at least under an obligation when the car was stopped in front of her parents’ home to express a refusal to go further. We do not regard such to be the law. She had refused to go anywhere on the day in question with the appellee but to the store and back. She was back; she was in front of her parents’ house, and she had the car door open when appellee suddenly started off. A jury could well have found from her testimony that her consent to go anywhere with the appellee on the day in question was limited to going to the store and back; that she had previously expressly told him she would not go out with him that evening, so that the limited consent had expired; and that her having the door open in the stopped car in front of her parents’ home reindicated her lack of consent to any further movement.
The case of Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C.App.1979), cited by appellee is not on point. There, the claimant had consented to go to her home in the car. In the course of that journey after a stop was made which she had not anticipated, she changed her mind without expressing the same. But as the court pointed out in that case: Of course, if the defendant goes beyond the implied consent, and does a substantially different act, he will be liable. See Prosser, supra, at 104. Whether the assent given was broad enough to cover the invasion inflicted is a question of fact to be determined by the jury in doubtful cases. 404 A.2d at 153. That is our case.
[***] [T]here was sufficient evidence to go to the jury on the claim of false imprisonment. Because of our disposition of the question of the sufficiency of the evidence, we do not reach the other errors alleged.
Reversed and remanded for a new trial.
Note 1. What does it mean for the lower court to have directed the verdict? What is the status of the negligence count?
Note 2. For what purpose is the court drawing on the implied license doctrine?
Note 3. The court relays the facts with a curious range of possibility regarding what actually happened: “At some point thereafter, she fell, was pushed or jumped from the car.” Why do you think this is so? Do you think it is important (from the parties’ perspectives) which occurred? What bearing might it have on the tort of false imprisonment or on a general understanding of the context for the parties’ actions?
Note 4. False imprisonment is a tort in which there is frequently a power asymmetry of some kind. The tort, after all, seeks to prevent people from limiting others’ freedom of movement. That someone is capable of limiting the freedom of another presupposes particular sorts of power, strength, status or opportunity. How do you imagine this power asymmetry might play out in fact patterns that recur in the case law? What patterns would you expect to see regarding who is likely to be bringing false imprisonment actions, against whom and why?
(2011 WL 4625372)
Plaintiff Shanaz Ali (“Ali”) filed this action against Defendant Margate School of Beauty, Inc. (“Margate School”), alleging sex discrimination and sexual harassment in violation of Title IX, 20 U.S.C. § 1681 et seq., which prohibits discrimination on the basis of gender in any education program or activity receiving Federal financial assistance. Ali’s Amended Complaint also contains claims for assault, battery, and false imprisonment against Defendant Stanley Barnett (“Barnett”), the owner of Margate School.[1] Ali was a student at Margate School, a private trade school, from May of 2010 until late in 2010 or early in 2011. There is no dispute that Title IX applies to Margate School. After the parties engaged in discovery, Defendants moved for summary judgment as to Ali’s claims.[2]
Ali first registered to attend Margate School’s massage therapy certification class in late May of 2010. She met Defendant Barnett that day after he personally approved her request for discounted tuition. Barnett asked her where she was from, and after she stated she was from Trinidad, he told her he was British and played cricket. After she began day classes in June of 2010, Barnett approached her in the hallway and said, “You are the girl … who was in my office before when we started school. So, you did start?”[3] Barnett asked her if she played cricket, to which Ali replied, “sometimes.” Barnett then stated that “we could play cricket.” Barnett put his hand on Ali’s right hand or forearm for a few seconds when he made this last statement. A week later, Barnett approached her in the hallway, touched her hand or shoulders and moved close to her and asked how she was doing. This contact made Ali uncomfortable. Between late June and early November, there were three to five instances of Barnett approaching her in the hallway and touching her in a similar manner. While Ali stated that she tried to avoid him, she testified that she changed her class schedule from day classes to night classes because of her babysitting situation.
On Monday evening, November 8, 2010, Ali was in the hallway before class when Barnett approached her, asked how she was doing, tapped her shoulder and hugged her. In her errata sheet, Ali adds that Barnett said she was extremely attractive and wanted to help her with her studies. Barnett then said that “Let’s see if we can help each other out.” Ali Deposition at 36–37. Ali did not know what he was referring to as the two went into his office and he closed the door. Barnett sat behind his desk with Ali across from him. Id. at 37. Barnett said “Let’s see if we can help each other out, you know, I can probably do something for you. You can do something for me.” Ali felt trapped and stuck and thought if she walked out she would not be able to go to school anymore. Id. at 38. Barnett then said that “I’m the owner of the school, you know, I can pay your tuition. I can pay your weekly amount if you, you know, could do something…. I can pay your stuff and you can, you know, give me a favor, do me a favor.” Ali assumed he meant a sexual favor, and stated that “you shouldn’t even be saying that. You’re married, you know, you have a kid. I have kids.” Barnett then said, “Well, you know, everybody does it now.” Id. at 38–39. Ali declined the proposition, saying “I don’t want to do anything like that.” Id. at 39. Barnett said “that he liked Trinidadian women and that he could do anything because he owned the school.” Barnett then asked if Ali had a friend who would do it. Ali deposition at 39. Ali said no and left his office. Id. at 40. In her Errata Sheet, she alleges that Barnett followed her into the hallway, touching her and telling her she was attractive, conduct that frightened Ali because she feared that she might be expelled or have her grades adversely affected.
*2 Teacher and co-Plaintiff Stephanie Groh then saw Ali crying and shaking in the hallway. Deposition of Stephanie Groh at 68 [DE 34–4]; Deposition of Shanaz Ali at 42 [DE 33–4]. Upon reaching her, Ali explained that Defendant Barnett had just propositioned her in his office, and she did not know what to do. Ali deposition at 42. Groh told Ali that she would take care of it. Ali did not go to class and went home. She came back to school the next day to speak with Stephanie Groh. Once Ali learned that Groh had been fired, Ali never went back to the school. Ali never told any other student, teacher, or administrator about the incident.
Barnett denies the November 8 incident ever took place. Deposition of Stanley Barnett at 51. Barnett also denied ever making the comment that he was attracted to Trinidadian women. Id. at 43. He stated that if an instructor or administrator offered a quid pro quo for sexual favors to a student, such conduct would be investigated as a possible violation of Margate School’s sexual harassment policy.
Margate School’s sexual harassment policy directs students to report any such incidents to the “Director of the School or the Office Manager.” Sexual Harassment Policy [page 13–14 of DE 33–2]. While Miriam Tirado was the Director of the School, it is not clear who the “Office Manager” was at the time of the November 8 incident. The policy then states that if a verbal complaint to the Director has proven ineffective, or you are unable to complain to the Director, then students are to file a complaint through Margate School’s grievance procedure. The procedure starts with a student first notifying her instructor either verbally or in writing, and if not resolved, then the student is to notify the Director of Student Affairs. Handbook at p. 9 [DE 33–2]. Other than telling Groh, there is no evidence that Plaintiff Ali followed the procedures spelled out in the policy. [***]
B. Title IX Discrimination— Quid Pro Quo
Both sides argue that Title VII case law should be used as the basis for analysis of a motion for summary judgment on a Title IX claim. Plaintiff’s claim under Title IX can be maintained under two different theories, both of which Plaintiff asserts in this case. A plaintiff can prove a violation by either showing that the harassment culminated in a “tangible employment action” or that she suffered “severe or pervasive” conduct. [c] As applied to the Title IX area, Plaintiff Ali must show that she was deprived of some benefit or suffered some tangible adverse action, such as decreased grades. [c]
Although Ali testified that she was afraid something adverse to her grades would happen to her after she rejected Barnett’s quid pro quo offer, there is no evidence that any denial of any educational benefit or any adverse educational action ever occurred. Ali’s grades did not suffer as a result of her rejection of Barnett’s alleged advances. Ali suggests that she suffered some sort of constructive discharge because she was afraid to return to school. However, the facts remain that Ali did not return to school on her own choosing. There is no evidentiary basis in the record to support the claim that she suffered a tangible educational action or was denied any benefit on account of her sex. Thus, the Court concludes that there are no disputed issues of material fact concerning the quid pro quo harassment claim. Summary judgment in favor of Margate School on this part of Count I is therefore appropriate.
C. Title IX Discrimination—Hostile Work Environment
[***] Under the hostile work environment theory, “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” [cc] A plaintiff establishes a prima facie case of hostile work environment by showing: (1) the Plaintiff belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment; and (5) the employer is liable. [cc]. [***]
For purposes of the summary judgment motion, it is clear that Plaintiff testified that the conduct was unwelcome, sexual in nature, and related to her gender. Defendant argues that Plaintiff cannot show that the alleged harassment, under an objective standard, was sufficiently severe or pervasive to alter the conditions of Plaintiff’s education and create an abusive environment. Defendant relies upon the Mendoza opinion, where repeated vulgar conduct was deemed not sufficiently pervasive but merely rude.
In this action, although Ali meets the subjective component that the harassing conduct was sufficiently severe or pervasive to alter an employee’s terms or conditions of employment, Ali has not met the objective component. The Court first notes that the various out of district cases cited by Plaintiff involved alleged victims aged 17 and younger. Plaintiff Ali was 24 years old during the relevant period in this action. Although Barnett was substantially older and was the owner of the trade school in question, his slight touching of Plaintiff’s hand or arm three to five times in open hallways over a five month period, combined with general questions about how Plaintiff was doing, and culminating in one instance in his office where he allegedly asked for sexual favors in return for free tuition, do not rise the level of sufficiently severe or pervasive conduct under Eleventh Circuit case law. [***]
[T]his Court concludes that even taking all disputed facts in Plaintiff Ali’s favor, summary judgment is appropriate in that Plaintiff has failed to show sufficiently severe or pervasive conduct that meets her burden.[4]
D. State Law Claims
Defendant Barnett also moves for summary judgment on Plaintiff’s state law claims against him. Taking first the claim for false imprisonment, this tort is defined as the unlawful restraint of a person against his will. [c] The gist of false imprisonment is the unlawful detention of the plaintiff and the deprivation of her liberty. “A plaintiff in a false imprisonment action need not show that force was used in the detention or that he or she orally protested to demonstrate the detention was against his or her will…. However, a plaintiff alleging false arrest must show the restraint was unreasonable and unwarranted under the circumstances.” A plaintiff is not restrained when there is a reasonable means of escape, which is apparent or known to the person. [c]
In this action, Plaintiff Ali has failed to show that any restraint was used in that she agreed to go with Barnett into his office and she could have left his office at any time. In fact, Ali did leave Barnett’s office prior to the conversation being over, as Barnett allegedly followed her into the hallway to ask her to reconsider his offer. Although the door to the office was closed while Plaintiff was inside the office with Barnett, and Plaintiff was subjectively afraid of the consequences of her leaving, a reasonable means of escape was apparent. The Court therefore concludes that Plaintiff has failed to prove as a matter of law that the tort of false imprisonment was committed.
Turning next to the assault claim, under Florida law, an assault is any intentional, unlawful threat by word or act to do violence to another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear that such violence is imminent. [cc] Based upon the record as a whole, there is no evidence that any violence was ever imminent or threatened by Barnett during the instances that he touched Ali, nor during the alleged proposition in his office. There is no construction of the facts in the record by which one could conclude that Ali had a well-founded fear that any violence was imminent. Therefore, summary judgment in favor of Barnett on the assault claim is appropriate.
*6 Finally, turning to the battery claim, under Florida law, a battery occurs when a person “actually and intentionally touches or strikes another person against the will of the other.” [cc] In this case, Ali testified that Barnett touched her several times against her will, causing her to be uncomfortable. While Defendant argues that Barnett lacked the intent to cause harm or that Ali never told Barnett that the touching was unwelcome, the Court must conclude at the summary judgment stage that Plaintiff has set forth disputed issues of material fact that preclude the granting of summary judgment on her battery claim.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion for Summary Final Judgment [DE 33] is hereby GRANTED in part as to Counts I [Title IX Violation: Harassment/Discrimination against Ali], IV [False Imprisonment Claim] and the assault claim in Count III, and DENIED as to the battery claim in Count III;
2. Defendants’ Motion for Summary Final Judgment [DE 32] is hereby DENIED as a duplicative motion.
Note 1.Ali v. Margate builds on torts you’ve seen—assault, battery and false imprisonment—to add a federal claim for discrimination in the workplace. While employees cannot sue employers for negligent injuries sustained on the job—since workers’ compensation exists to address those—they may sue for intentional torts as you have learned in Villa v. Derouen. In addition, employees can report employers using various institutional and industry-specific mechanisms. Finally, they can bring lawsuits of various kinds, but these are usually the least good option. Employment discrimination and toxic workplace cases are notoriously difficult to win and often not worth the professional stress and reputational costs, to say nothing of the legal fees that may be involved with lengthy litigation. Why do you think the bar for recovery is so high? How might you frame your answer in terms of tort law’s purposes?
Note 2. In light of the momentum created by the “#metoo” movement, cases such as these could become less frequent if employers respond meaningfully, perhaps by bolstering their training, supervision and reporting protocols or by taking other steps to improve their workplace environment. Cultural factors play a role in this context, as well; if victims fear retaliation or routinely face doubt when raising allegations of harassment or misconduct, reporting will continue to present an option worse than the alternative of putting up with the wrongful conduct or leaving the working environment, where that’s possible. Normatively, to what extent do you think such conduct ought to fall to the tort system to regulate? Also, when should bad behavior be deemed so bad that it’s beyond an acceptable range and becomes something “extreme and outrageous” (along the lines of the tort of outrage or intentional infliction of emotional distress)? Should the prevalence of discriminatory behavior make it harder to recover because of the widespread nature of the bad behavior? Does societally prevalent conduct require more generalized legal measures like legislative or executive action, that is, legal measures besides tort litigation which is particularized to individuals or even classes of individuals?
Note 3. In some instances, civil rights violations do not or should not amount to torts violations. Martha Chamallas, Discrimination and Outrage: The Migration from Civil Rights to Tort Law, 48 Wm. & Mary L. Rev. 2115 (2007) (exploring the interplay between the domains of civil rights laws and torts, critiquing the “gap-filler” approach and advocating for a reconceptualization of the tort of outrage), https://scholarship.law.wm.edu/wmlr/vol48/iss6/2/
What risks and opportunities can you imagine arising from the way the two areas of law either overlap or remain distinct from each other?
Note 4. From the disposition of this case, what would you assume the plaintiff sought? From her complaint, here was the request:
[T]he Plaintiff Ali demands judgment against the Defendants Margate and Barnett, for damages in excess of \$15,000.00, costs, interest, and such other and further relief that is available under the law and also seeks exemplary and punitive damages against the Defendants for the intentional wanton and willful acts of Defendant Barnett.
Ali alleges that Barnett’s conduct caused her to drop out of beauty school that she had paid tuition to attend. In light of that allegation, does the nature and amount of the remedy sought seem appropriate? What do you observe about the remedies tort law most commonly awards?
Note 5. Do the plaintiff’s gender and nationality or race seem relevant to the substantive claims, in your view? Whichever way you answered, do you think they might be relevant to the legal disposition of the case? What do you observe about the institutional context (a beauty school) and the fact that one of the school’s teachers, Stephanie Groh, joined the suit?
(144 A.D. 337)
The defendant appeals from a judgment of a Trial Term of the Supreme Court in Westchester county, entered upon a verdict of a jury in an action for false imprisonment, and from an order denying a motion for a new trial. The facts are as follows:
On the morning of the 8th of October, 1908, the plaintiff went into the inclosure of the defendant in the city of New York to buy some reserved seats for a baseball game which was to be held there in the afternoon of that day. These seats were sold at a number of booths within the inclosure. The *338 plaintiff was unsuccessful in his quest, as all the reserved seats had been sold. He tried to leave the inclosure through some gates used generally for ingress and exit. A considerable number of other persons were trying to leave the inclosure through the same gates at the same time. It appears that the baseball game which was to take place was one of very great importance to those interested in such games, and a vast outpouring of people were attracted to it. Many thousands of these came early in the day to seek admittance to the ball grounds, and the result was that the various gates used generally for entrance or exit were thronged with a dense mass of people coming in.
The plaintiff was prevented by the servants of the defendant from attempting to pass out through this throng, and as a result of this interference he was detained in the inclosure for an hour or more, much to his annoyance and personal inconvenience. The plaintiff and those similarly situated made many attempts to get out through these gates, and in the restraint put upon them to defeat their efforts they were subjected to some hauling and pushing by the defendant’s special policemen. Finally the plaintiff and the others were taken through a club house within the inclosure and allowed to go out through the entrance to the club house to the street.
Concededly the plaintiff had a legal right to leave the inclosure, and the defendant had no legal right to detain him therein against his will. But the right of each had corresponding duties. A temporary interference with the plaintiff’s legal right of egress could be justified as a proper police measure, if the plaintiff sought to exercise such right under circumstances likely to create disorder and danger. Assuming, however, that the defendant was justified in preventing the plaintiff from passing out through the gates in question, it should have directed him to pass out through some other means of exit, if there were any. The plaintiff told the agents of the defendant of his desire to get out, but received no directions or suggestions how to get out. The defendant claims that the plaintiff might have gone out through other gates in another portion of the field used for the entrance of motor cars and other vehicles; but the plaintiff swears that he did not know of the other gates, and there is no proof that his attention was called to *339 them in any way when he and the others sought to go out. He got out in the end, not through the gates for vehicles, but through the club house, on the permission and direction of the defendant. Granting that the restraint placed upon the plaintiff in preventing his going out through the gateways through which he sought exit was justifiable as a police measure, yet the defendant owed him an active duty to point out the other existing methods of egress. It could not stand idly by, and simply detain and imprison the plaintiff against his will.
We see no reason to interfere with the verdict of the jury in its finding that the plaintiff’s detention was unjustifiable under the circumstances. The damages awarded were in the sum of \$500. The plaintiff proved no special damage, nor was he obliged to. All damages awarded in cases of false imprisonment partake to some extent of “smart moneys,” and the sum awarded here is not so excessive as to justify interference on our part.
The judgment and order are affirmed, with costs.
Note 1. Courts take different approaches to identifying what constitutes “unlawful confinement.” There is broad consensus that when a reasonable means of exit exists and a person does not take it, there is no confinement. Some courts suggest that a finding of confinement requires that the plaintiff has made reasonable attempts at escape, but even those that apply an inquiry into whether the plaintiff could have escaped do not deem it necessary where the escape attempt would be dangerous. Coercion to remain only sometimes creates the necessary grounds for finding confinement. Threatening to fire an employee wrongly suspected of shoplifting may cause him to remain on site until the error is cleared up. However, his choice to remain defeats any false imprisonment claim, even if he feared losing his job and would face severe economic consequences for leaving it. However, retaining something of value to a person can count as confinement for false imprisonment, whether that is the person’s wallet, keys or children.
Note 2. What do you think the real-world consequences of a ruling like this one will be? Do you think that might have mattered to the court in its interpretation of the facts?
Note 3. Which of tort’s purposes do you think this ruling most serves or disserves, and why? Answering this question may help you identify the ruling’s doctrinal underpinnings and anticipate its likely impact.
1. By separate order, the Court has previously addressed Plaintiff Stephanie Groh’s claim for retaliation in Count II [DE 53].
2. Ali did not allege a claim under Title IX against Defendant Barnett. Therefore the Court does not address the individual liability issue discussed by Defendants in their motion.
3. Barnett may have stated, “You’re the Trinidadian girl that was enrolling a couple of weeks ago.” Ali deposition at 22.
4. Based upon this conclusion, the Court does not address the employer liability prong regarding the adequacy of the sexual harassment policy and whether Ali unreasonably failed to take advantage of the policy. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/02%3A_Intentional_Torts/2.03%3A_False_Imprisonment.txt |
Zahr K. Said
Elements
• Intent: either reckless or intentional, plus
• Conduct that is extreme and outrageous and
• Causes severe emotional distress
As noted in the introduction to Module 2, IIED was an outlier among the intentional torts rather than a creature of the writ system. Its elements reflect some of the uncertainty and compromises that led to its eventual adoption. First, its intent standard is lower than the usual intent standard in that it permits either intent or recklessness (which is a higher culpability standard than negligence but lower than intentional action). The second prong requires both extreme and outrageous behavior. Sometimes conduct is outrageous but happens only once and may fail to qualify as extreme. More commonly small irritating actions can, when done over many months or years, rise to a level that causes the conduct to qualify as extreme and outrageous. The conduct, however, is indeterminate—that is, not specified in advance. This indeterminacy is why the tort’s harm standard is heightened. Recall that in battery and trespass, no harm even need be proven; by contrast with IIED the harm must demonstrably exist and be severe. Its amorphous shape and its emphasis on emotional evidence has led courts to disfavor it or to refuse to adopt it in many instances. In some jurisdictions, the tort is only allowed where the facts provide an alternate theory of recovery; in others the tort is a “gap-filler” and available only where no other means of redress exists. The severe emotional distress is measured subjectively, not objectively. In theory, all prongs of the doctrine are questions of fact for the jury. In practice, the “outrageousness” element is frequently decided by a judge.
Questions or Areas of Focus for the Readings
• What’s different about IIED’s intent standard? What might that reflect?
• What are the risks and benefits of having a flexible, fact-specific standard for “extreme and outrageous” conduct?
• What else differentiates IIED from the core intentional torts you have learned?
Mitchell v. Giambruno, Supreme Court, Appellate Division, Third Department, New York (2006) (35 A.D.3d 1040)
Plaintiffs are a same-sex couple who purchased and moved into a house in the Village of Dannemora, Clinton County, in 1999. In this action commenced in November 2002, plaintiffs accused defendants, their neighbors, of, among other things, the intentional infliction of emotional distress. As the result of a jury verdict, plaintiff Susan Mitchell was awarded the sum of \$50,000 and plaintiff Elizabeth Meseck was awarded \$35,000. Defendants Michael Giambruno, Corrine Giambruno and Kimberly Granmoe (hereinafter collectively referred to as defendants) [fn] appeal, contending that plaintiffs’ trial evidence was insufficient to support the alleged cause of action.
It is well settled that in a cause of action for intentional infliction of emotional distress, a plaintiff must plead and prove four elements: (1) extreme and outrageous conduct; (2) the intentional or reckless nature of such conduct; (3) a causal relationship between the conduct and the resulting injury; and (4) severe emotional distress [cc]. Plaintiffs’ trial evidence reveals that the interaction between plaintiffs and defendants began as a result of what may fairly be characterized as a boundary line dispute. This dispute escalated and a criminal trespass complaint was filed by the Giambrunos against Mitchell and a restraining order was issued against her. Thereafter, for approximately two years, defendants conducted what can only be characterized as a relentless campaign of lewd comments and intimidation directed at plaintiffs and their lifestyle, both in private and in public. The final act prior to the institution of this action occurred when defendants constructed two mock grave sites on the Granmoes’ property directly facing plaintiffs’ home, which created a fear in plaintiffs that the graves were intended for them.
*1042 Although insulting language intended to denigrate a person may not, in and of itself, rise to the required level of extreme and outrageous conduct, liability may be premised on such expressions where, as here, defendants’ campaign of harassment and intimidation is constant. [cc] Accordingly, we conclude that this record contains sufficient evidence to support the jury’s determination that the first two elements of the cause of action have been proven, i.e., that the conduct of the defendants was extreme, outrageous and intentional.
Defendants’ arguments that plaintiffs failed to prove a causal connection between defendants’ conduct and plaintiffs’ illnesses is based on plaintiffs’ failure to ask either medical witness for an opinion concerning causation and because defendants allege that plaintiffs had other stressors in their lives. We are unpersuaded by either argument. Insofar as a participant (as compared to a bystander) is concerned, where a duty owed the participant is breached, resultant injury is compensable only if it is a direct (not consequential) result of the breach [cc]. Here, the evidence of direct injury from the breach is manifest. Nurse practitioner Paula Covey testified on behalf of Mitchell, and physician Richard Webber testified on behalf of Meseck. Both testified concerning their training and experience in diagnosing and treating anxiety and depression and the resultant physical manifestations, if any. Both testified that plaintiffs were patients in their office prior to and during the two years encompassed by defendants’ conduct. Each testified that their patients’ level of anxiety increased as did the depth of their depression as they continued to complain about defendants’ conduct, the necessity of retaining counsel, the lawsuit and the trial. The frequency with which plaintiffs sought treatment, as well as their medication to control their conditions, increased during this period. Covey testified to Mitchell’s resultant indigestion, diarrhea and irritable bowel syndrome and her hospitalization for brief periods on more than one occasion.
Given this testimony, we conclude that the causal connection between defendants’ conduct and plaintiffs’ illnesses was well within the ken of the ordinary lay juror and the medical practitioner’s opinion as to causation would be mere surplusage. Moreover, given the timing of the events, the jury could rationally conclude that the *1043 other stressors—Mitchell’s job stress, Meseck’s stress in caring for Mitchell’s 101–year–old grandmother and the arguments they had with each other over whether to retain counsel and sue—all were temporarily related to defendants’ conduct and were caused or exacerbated by them. Finally, the jury could rationally conclude from the evidence that the emotional distress of each plaintiff was severe.
To the extent not hereinabove discussed, we have considered defendants’ remaining arguments and found each to be lacking in merit.
ORDERED that the judgment is affirmed, without costs.
Note 1. Given that insulting language alone is almost never enough to qualify as “extreme and outrageous,” what additional facts or factors seem to have driven the court’s ruling?
Note 2. As you continue to learn about IIED. you will see that it serves particular purposes that reflect societal values at different moments in time. Consider whether its elements and application create an optimal balance. Should sociological factors and differences of identity be taken into account when evaluating whether particular behavior is “extreme” and/or “outrageous”? What is the risk of incorporating particular perspectives and what are the costs of not doing so?
Note 3. IIED claims often fail when plaintiffs do not show a significant change to their sense of wellbeing. Fairly or unfairly, courts struggle to find that change when plaintiffs are dispositionally nervous or depressive; if they are generally happy people who undergo significant change because of the extreme and outrageous conduct of the defendant, the IIED claim stands a higher chance of success. In one sense, this simply reflects the requirement that the distress be “severe.” In another sense, however, it may stack the deck in favor of particular kinds of personalities and temperaments, biasing the law against others. Should tort law treat all plaintiffs equally no matter their backgrounds or dispositions? Is the eggshell plaintiff doctrine reconcilable with this default of permitting recovery only in cases where a plaintiff didn’t start out with signs of any distress?
Note 4. At common law, there was a firm rule against recovering for purely emotional distress under Lynch v. Knight, 9 H.L.C. 577, 598 (1861) (“mental pain or anxiety the law cannot value, and does not pretend to redress.”) However, in the late 1930s, two torts jurists charted judicial departures from that norm and were able to categorize them in service of an argument that courts had been allowing recovery for emotional distress. Calvert Magruder, a judge on the Court of Appeals for the First Circuit and William Prosser, the torts scholar and academic, were both drafters of the Restatement and would eventually be responsible for introducing the tort of IIED. Among the documented exceptions to the Lynch rule were insults or abuse by common carriers (as you saw in Luther and Henderson); harassment by creditors wielding power over debtors; cruel or vicious practical jokes; stalking or significant sexual harassment; and claims for mishandling bodily remains or interference with death and death rituals.
Today, the fact patterns that tend to fall into “extreme and outrageous” conduct include some aspects of those three clusters. For instance, if defendant’s conduct is continuous or ongoing, liability is likelier. If a plaintiff has no practical way out (because they are in the care or custody of an entity) or lacks the power to make a change (because of a power dynamic or economic coercion), again the conduct tends to be judged more harshly against the defendant. Similarly, if there is a potential abuse of authority, a finding of outrage is likelier. As you evaluate IIED fact patterns, look at the relationships involved: were the parties in a hierarchical relationship, such as landlord/tenant, supervisor/employee, professor/student or creditor/debtor? Was there a conflict of professional interest? It may go without saying but where there is evidence that the defendant knowingly exploited the plaintiff’s vulnerable condition or particular sensitivity, the plaintiff’s case strengthens. Along those lines, where the defendant is shown to have lied or to have a secret intent to inflict harm, the conduct is likelier to be found outrageous.
Banks v. Fritsch, Court of Appeals of Kentucky (2001)(39 S.W.3d 474)
The appellant, Wade Banks, brought this complaint against the appellee, John Fritsch, alleging false imprisonment, assault and battery, and outrageous *476 conduct. A jury trial was conducted on July 21, 1999. At the close of Banks’s case, the trial court directed a verdict in favor of Fritsch, finding that Banks had failed to present evidence that he had been damaged by Fritsch’s conduct. We find that the trial court erred in dismissing the claims for false imprisonment and assault and battery as there was sufficient evidence of emotional damages to warrant submitting the issue to the jury. However, we also conclude that the tort of outrageous conduct is not available under the facts presented in this case. Hence, we reverse the trial court in part, affirm in part, and remand this action for a new trial.
Since the trial court dismissed this action on a motion for a directed verdict, we shall view the evidence in the light most favorable to the appellant. In June 1996, Banks was 17 years old and was a Junior at Bourbon County High School. His last class of the school day was Agriculture Wood Construction, taught by Fritsch. By his own admission, Banks had either skipped the class or left the class early on a number of occasions during that semester.[1] Banks testified that, while he was walking to the class on June 4, another student told him that Fritsch had a chain, and was planning to chain Banks up to keep him from skipping class. Nevertheless, Banks proceeded to the class.
Banks testified that when Fritsch walked into the classroom, he had a large log chain over his shoulder and had several key locks on his belt loop. Fritsch then told Banks that he was going to keep him from leaving the class early. After taking roll, Fritsch directed Banks to put his leg up on a chair so he could put the chain around Banks’s ankle. Banks states that he initially protested, and then went along after Fritsch repeated the instruction. Fritsch secured the chain around Banks’s ankle, and led him outside to an area where the class was painting feed troughs. Fritsch then put the chain around a tree, locked it, and told Banks not to go anywhere.
The entire class followed Fritsch and Banks from the classroom to the tree. After Banks was secured to the tree, Fritsch returned to the classroom and the other students went on with their projects. Banks sat down under the tree, removed his shoe and began trying to work the chain loose. After several minutes, Banks was able to remove the chain from his ankle, and he then attempted to leave the school premises. Several of his classmates chased Banks down, tackled him, and then carried Banks back to the tree. Fritsch returned, placed another chain around Banks’s neck, and then secured it to the chain around the tree.
Banks testified that he initially stood up and held the chain to keep its weight off of his neck. After about fifteen minutes, he got tired of holding the chain, so he sat down and began crying. Banks told another student that the chain was bothering him, and the student went to tell Fritsch. Several minutes later, Fritsch came and removed the chain from Banks’s neck. However, Fritsch then secured the other chain tightly around Banks’s ankle.
Thereafter, Fritsch and Banks began discussing his grades in the class and what it would take from him to pass. Fritsch returned to the classroom to check his records to see if Banks was in a position to pass the class. Upon returning five minutes later, Fritsch told Banks that he could pass the class if he painted the three remaining *477 feeder and mineral troughs. Banks agreed and Fritsch removed the chain. Banks subsequently finished the painting assignments, and he received a passing grade in Fritsch’s class. Banks testified that the chaining incident took place over a period of about an hour and a half.
Fritsch’s account of the incident differs only slightly in the details, but markedly in tone. Fritsch testified that the idea of chaining Banks started as a joke between him and the other students in the class. Several days prior to the incident, Fritsch made an off-hand comment in front of the class to the effect that perhaps he should chain the truant boys to keep them from skipping class. On June 4, as Banks was arriving for class, the other students reminded Fritsch of this statement. After some prodding from the class, Fritsch decided to go forward with the plan.
Fritsch further testified that Banks never objected to the chaining, and in fact, he went along with the joke and appeared to enjoy the attention. Fritsch did not recall placing the chain on Banks’s leg in the classroom and leading him outside. This testimony was contradicted somewhat by another teacher, Ralph Speakes, who saw Banks leaving Fritsch’s classroom with the chain around his ankle. However, Speakes also testified that everyone (including Banks) seemed to be laughing about it. In addition, Fritsch states that after Banks managed to remove the chain the first time, he called it to the attention of the other students and dared them to catch him. Several students informed Fritsch about Banks’s escape, and they asked Fritsch what they should do about it. Fritsch told them that Banks should come back and finish the project, but he stated that he did not tell any of the students to bring Banks back. Speakes testified that Banks appeared to be leading the chase, and after the students caught up with Banks, they merely led him back to the class area. Fritsch denied that Banks ever showed that he was upset about the chaining or that he ever asked for the joke to stop, except for when Banks complained about the chain around his neck. Fritsch steadfastly denies that the chaining was intended as a punishment, or that he ever intended to hurt or humiliate Banks. Rather, Fritsch merely intended it as a light-hearted prank to impress on Banks the importance of staying in class and finishing his assignments. Fritsch further stated that the entire incident took place over 25 to 30 minutes.[2]
Banks testified that he was deeply upset by the chaining and thought about it often. After the incident was publicized, he states that other students gave him a hard time about it on several occasions. He also received a lot of unwelcome and negative media attention over the incident. In response, he decided that he could not return to Bourbon County High School in the fall. Instead, he went to live with his father and attended his senior year of high school in Columbia, Missouri. Banks testified that the move was traumatic for him, and it was difficult for him to fit in at his new school.
Banks saw a psychologist to discuss his feelings once prior to the move to Missouri. Banks further testified that sometimes he has flashbacks and sometimes starts to cry over memories of the chaining. His family members stated that Banks had a hard time dealing with the incident and often seemed withdrawn. However, there was no expert testimony describing Banks’s emotional state following the chaining.
At the close of Banks’s case, the trial court granted Fritsch’s motion for a directed verdict. The court determined that *478 there was enough evidence to establish that a false imprisonment and an assault and battery occurred. However, the court concluded that there was no evidence that Banks had been damaged by Fritsch’s conduct. The trial court stated on the record:
I mean, this strikes me as being exactly what it’s characterized as, a prank, and perhaps one that was not appreciated by Mr. Banks and I can understand that, but I don’t see that there’s been any harm done here. Clearly, Mr. Fritsch should not have done this. He’s been told that by a number of people, I think he realizes that. The fact is it happened, and basically there seems to be no harm, no foul here. And I haven’t been proved-it hasn’t been proven to me, and therefore I don’t think the jury can find that there are damages here that Mr. Banks has suffered. There’s evidence of that, I don’t think that that is significant at this point. I think on the basis of the damages issue, that I am going to direct a verdict here in favor of Mr. Fritsch on all of these counts. I just don’t think the jury has enough evidence to decide that Mr. Banks has been damaged by the incidence [sic], that it has been proven to then happen.
The trial court’s written order granted the directed verdict for Fritsch based upon the oral findings in the record. Banks now appeals, arguing that there was sufficient evidence of damages to warrant submitting the issue to the jury. He further argues that he was also entitled to an instruction on punitive damages.
Fritsch responds that the trial court properly granted his motion for a directed verdict because Banks failed to establish the elements of false imprisonment, assault and battery, and outrageous conduct. However, the trial court specifically granted the directed verdict based upon lack of evidence to establish that Banks was damaged by Fritsch’s actions. Moreover, the trial court found that Banks had presented sufficient evidence to create a jury issue on his claims alleging false imprisonment and assault and battery. Since Fritsch did not file a cross-appeal contesting this finding, this appeal is limited to the question of whether Banks presented sufficient evidence of damages to overcome Fritsch’s motion for a directed verdict.
On a motion for directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion. When engaging in appellate review of a ruling on a motion for directed verdict, the reviewing court must ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party.[3] Once the issue is squarely presented to the trial judge, who heard and considered the evidence, a reviewing court cannot substitute its judgment for that of the trial judge unless the trial judge is clearly erroneous.[4] However, a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ. Where there is conflicting evidence, it is the responsibility of the jury to determine and resolve such conflicts, as well as matters affecting the credibility of witnesses.[5]
In order to consider the propriety of the trial court’s decision to grant the motion for a directed verdict, we must first consider the nature of the claims asserted by Banks. The action for the tort of false imprisonment, sometimes called false arrest, is a lineal descendant of the old action of trespass to person. It protects the personal interest in freedom from physical *479 restraint.[6] The interest involved is “in a sense a mental one,” and false imprisonment may be maintained without proof of actual damages.[7] The tort is complete after “even a brief restraint on the plaintiff’s freedom,” and the plaintiff may recover nominal damages.[8] The plaintiff is entitled to compensation for loss of time, for physical discomfort or inconvenience, and for any resulting physical illness or injury to health. Since the injury is in large part a mental one, the plaintiff is also entitled to damages for mental suffering, humiliation and the like.[9]
Kentucky cases define false imprisonment as being any deprivation of the liberty of one person by another or detention for however short a time without such person’s consent and against his will, whether done by actual violence, threats or otherwise.[10] Furthermore, false imprisonment requires that the restraint be wrongful, improper, or without a claim of reasonable justification, authority or privilege.[11] Fritsch’s potential liability does not arise out of his efforts to keep Banks from leaving the class, and there is no contention that Fritsch was acting within the scope of his authority as a teacher. Rather, Fritsch’s primary defense is that there was no imprisonment because Banks consented to being chained.
There are no Kentucky cases which directly discuss what evidence is necessary to prove damages from false imprisonment. However, a number of cases are instructive insofar as they address evidentiary issues relating to submission of the issue of damages to the jury. In Butcher v. Adams,[12] the plaintiff’s testimony that he was humiliated by his false arrest on charges relating to the operation of his tavern was mitigated by evidence that he had previously been arrested on similar charges. The court noted that this evidence was sufficient for the jury to consider whether the plaintiff had actually been embarrassed by the false imprisonment.
In Bradshaw v. Steiden Stores, Inc.,[13] a store patron was detained for an hour while the store owner checked on the validity of her check. The store owner then told her to go to a back room, where briefly the patron was questioned by two policemen. Once the validity of the check was established, the patron was allowed to go. The former Court of Appeals acknowledged that the patron had established a “borderline” case of false imprisonment. However, the Court noted that there was no evidence that the patron had been unnecessarily humiliated or embarrassed by the incident. Since at most the evidence would have justified an award of nominal damages, the Court concluded that the directed verdict in favor of the store owner was not reversible error. Similarly, in SuperX Drugs of Kentucky, Inc. v. Rice,[14] this Court held that, in an action for false imprisonment where the person is subsequently and properly charged with the commission of a felony, she can recover damages only for that mental suffering and embarrassment *480 which she endured during the period prior to her arrest. Under these circumstances, this Court concluded that the plaintiff was entitled to no more than nominal damages, and the jury’s award of \$75,000.00 in compensatory damages was clearly excessive.
The common thread among all these cases is that a plaintiff may be entitled to at least nominal damages arising from the humiliation, emotional distress or damage to reputation caused by the false imprisonment. “Humiliation and embarrassment are, by their nature, not easily quantified….”[15] Nevertheless, the degree of humiliation or embarrassment actually suffered by the plaintiff is a factual matter for the jury to decide.
There was clearly a factual issue concerning whether Fritsch’s conduct constituted an unlawful imprisonment of Banks. Furthermore, Banks testified that he suffered humiliation, embarrassment, emotional distress and he was held up to the ridicule of his peers by being publicly chained. There was contrary evidence that Banks did not express any distress during the chaining. Nevertheless, we are satisfied from the record that the jury could have returned a verdict for Banks for an amount greater than nominal damages. Consequently, we find that the trial court’s decision to dismiss this claim was erroneous.
Banks’s second claim is that Fritsch’s conduct amounted to an assault and battery. Assault is a tort which merely requires the threat of unwanted touching of the victim, while battery requires an actual unwanted touching.[16] Since intent is an essential element of assault and battery, the trial court properly left to the jury the issue of Banks’s consent to the chaining.[17] However, a plaintiff need not prove actual damages in a claim for battery because a showing of actual damages is not an element of assault or battery and, when no actual damages are shown for a battery, nominal damages may be awarded.[18] Furthermore, a recovery for emotional distress caused by the assault or battery is allowable as an element of damages in an action based upon those torts.[19] Consequently, we find that the trial court’s dismissal of Banks’s claims for assault and battery also was erroneous.
Banks’s third claim was that Fritsch’s conduct amounted to the tort of outrageous conduct. The trial court did not address this claim, but presumably the court’s finding that Banks failed to prove damages applies to this claim also. The tort of intentional infliction of emotional distress, or outrage, was first recognized in Kentucky in Craft v. Rice.[20] In that case, the Kentucky Supreme Court adopted the following portion of Section 46 of the Restatement (Second) of Torts:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.[21]
In order to recover, the plaintiff must show that defendant’s conduct was intentional or reckless, that the conduct was so outrageous and intolerable as to offend generally accepted standards of morality and decency, that a causal connection *481 exists between the conduct complained of and the distress suffered, and that the resulting emotional stress was severe.[22] An action for outrage will not lie for “petty insults, unkind words and minor indignities”; the action only lies for conduct which is truly “outrageous and intolerable.”[23]
In addition, the tort of outrage is intended as a “gap-filler,” providing redress for extreme emotional distress where traditional common law actions do not. Where an actor’s conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie. Recovery for emotional distress in those instances must be had under the appropriate traditional common law action.[24]
We have previously held that Banks may be able to recover emotional damages arising from false imprisonment, assault or battery. Hence, Banks must show that Fritsch’s actions were intended only to cause him extreme emotional distress, rather than to merely touch or to deprive him of his liberty. We find no evidence in the record which would support such a finding by the jury. As a result, Banks’s claim of outrageous conduct would not be appropriate in this case, and the trial court properly granted a directed verdict on this cause of action.
Lastly, Banks argues that he was entitled to an instruction on punitive damages. The trial court did not address this issue because it dismissed the action based upon lack of evidence of compensatory damages. Since we are remanding this action for a new trial, the trial court must consider the propriety of an instruction on punitive damages based upon the evidence presented at that time.
Note 1. What does it mean when the court calls IIED a “gap-filler”? What do you understand about its purpose and scope so far? Why do you suppose it arose, rather than having changes arise within the other torts such as battery, assault, and false imprisonment?
Note 2. Revisit the facts of Ruiz v. Bertolotti. What interest was the court protecting? What conduct was the court seeking to limit or prevent? Is IIED better understood as a “gap-filler” or a backstop?
Check Your Understanding (2-5)
Question 1. The Kentucky court in Banks describes the tort of IIED as a “gap-filler.” With that in mind, which of the following is most likely to result in a successful IIED action in Kentucky:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. True or False: Generally, courts allow recovery for humiliation and insults under IIED only when those produce either physical harm or include hateful speech (such as racist epithets or sexist treatment or other discriminatory comments).
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 3. In Banks v. Fritsch, which of the following facts, if true, weighs most heavily against a finding of false imprisonment? (Or, put another way, which of the following facts would you rely on the most if you were Mr. Fritsch’s attorney?)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Hypothetical: Detained Shoppers
Mr. and Mrs. Bill and Kerry North packed their three children and Mr. North’s mother into their Ford Bronco and set out for the “Giant Liquidation Sale” held that day at Doe’s Department Store. When they arrived, they found the store quite disorganized and the merchandise displaced and picked-over. Nonetheless, their search for bargains began. Two dolly hand trucks caught the eye of Mr. North as he browsed through the store. Noticing that the hand trucks were being “eyed” by another shopper, Mr. North decided to purchase them while they remained available. The trucks each apparently bore two or more price tags, all showing identical prices of \$34.99 each. Mrs. North and her mother-in-law took money from Mr. North and purchased the dollies at the cashier’s line. The cashier totaled the prices, added tax, and then discounted the sale by fifty percent. The cashier gave Mrs. North a receipt and Mrs. North left the store with her mother-in-law and locked the dollies in the Bronco. They both returned to the store and Mrs. North gave the receipt and change from the purchase to her husband.
The Norths soon realized that the store management was paging the owner of a Ford Bronco (jeep). Mr. North went to see if there was a problem. He left Mrs. North and his mother behind to watch the children and to continue their shopping. Upon reaching the front of the store, Mr. North saw a police officer and asked whether anyone had hit his jeep. There, the store manager accused him of stealing merchandise. The manager threatened him with arrest if he did not return the goods. Mr. North stated that he did not know to what the manager was referring. The manager repeated the accusation and threat of arrest and Mr. North, finally understanding that the goods in question were the dollies, showed the manager the receipt and change his wife received for the purchase of the goods.
The store manager disregarded the receipt as being “impossible” because the dollies were not for sale, but rather were for use by store employees for transporting merchandise within the store. Mr. North pleaded with the officer not to arrest him as he had indeed purchased the goods and was not a thief. The manager, however continued his accusations of thievery while a number of customers formed small groups around the altercation that had now lasted some twenty minutes.
Attempting further to resolve this embarrassing matter, Mr. North explained that it had been his wife and mother who had purchased the dollies. The manager threatened to arrest them also. Mr. North asked the manager not to involve his wife because she was an outpatient at Forsyth Memorial Hospital and could not handle the aggravation and anxiety. Disregarding this warning, the manager, after spotting Mrs. North, confronted her and accused her of stealing the dollies. Mrs. North protested that she had paid for them, received a receipt, and placed the goods in the jeep. The manager, however, continued his accusations.
Mrs. North located the cashier who had received payment for the dollies. The manager again ignored the proffer of the receipt and the verification by the cashier of the sale. At this time, the officer took the Norths out to their jeep to look at the dollies. By the time they had returned, the Norths had been detained for some seventy-five minutes. Mr. North then asked for the names of the police officer, the store manager, and the cashier. The manager refused to give the names, stating that if the Norths “got the names, then they would be arrested.” The Norths left the store without the requested names. Their last memory of this episode was the manager’s reminder that they could be arrested for larceny anytime within the next year.
Instructions for this hypothetical practice: What intentional torts can Mr. and Mrs. North bring against the department store? Consider them as separate plaintiffs.
Note 1. Why do you think the hypothetical (drawn from an actual case) makes mention of the store’s disorganization, at the start of the facts?
Note 2.The Shopkeeper’s Privilege. Merchants and businesses, in generally, may avail themselves of a defense called the shopkeeper’s privilege that immunizes them against prosecution or litigation for false imprisonment. The hypothetical above comes from a case in North Carolina in which a trial court directed a verdict for the store. However, it was reversed on appeal and a judge found multiple grounds (including false imprisonment and others) on which the plaintiff and his wife could recover. West v. King’s Dept. Store, Inc., (365 S.E.2d 621) (Sup. Ct. N.C. 1988). The case illustrates the variability of the shopkeeper’s privilege as well as the way that it can be defeated by conduct that appears to be malicious or egregious as the court ruled that a jury might find it to be on these facts.
Some jurisdictions have passed statutes to create robust immunity for detaining or questioning or searching a customer based on a reasonable belief that the customer may be shoplifting. The shopkeeper’s privilege also exists at common law, where it grants an employee the authority of law to detain a customer to investigate the ownership of property in a reasonable manner and for a reasonable period of time, again only if the employee has reasonable belief that a customer has stolen or is attempting to steal store merchandise. These forms of immunity give merchants latitude to take actions that will sometimes be mistaken and may result in some embarrassment, hassles to innocent customers, or the experience of having one’s person and property invaded or searched. The standard of reasonableness, is, of course, objective: the inquiry is whether it was reasonable for the shopkeeper to believe theft was imminent or underway, not whether the customer is guilty, or innocent (which would be a “subjective” standard, particularized to and provable about this customer). Why has the law used an objective standard for the shopkeeper’s conduct, rather than a subjective standard about the customer?
Note 3. Optimally, the law would strike a balance between the store’s right to protect its wares and the customer’s right to freedom from unreasonable inquiries. Has the law found that balance, in your view, as a normative matter? What changes could tort law make? What effects would flow from any such changes? What other (non-legal) sorts of changes can you imagine being helpful here? Could such changes contribute more effectively to achieving greater balance between customers and stores?
Note 4. Recall the footnote in Villa about the ethnicity of the plaintiff and the mentions of Ms. Ali’s being from Trinidad in Ali v. Margate. Would it have a bearing on your analysis if you knew the demographic identity of the Norths? How about the store manager and cashier? Would it matter to your analysis if the store were located in a wealthy part of town or a poorer one? What inferences would you draw from any of these details? Normatively, should tort law strive to flatten any differences or should its rules retain a focus on factual differences, case to case?
1. Fritsch’s records show that Banks had missed class seven or eight times from January through April, and an additional ten days during May. However, the school’s attendance records only show Banks absent from the class on three days. In his testimony, Banks admitted that he had skipped the class at least eight times. Fritsch’s records also show that several other students skipped the class more often than Banks. According to Banks, the other students were in his work group, and he was often left to complete projects alone. Fritsch testified that he was aware of this problem, and gave Banks the painting assignments so that Banks might be able to complete his class work.
2. Following a complaint by Banks’s mother, the school superintendent investigated the incident and suspended Fritsch for 45 days. Fritsch challenged the suspension and sought a hearing. The Kentucky Department of Education appointed a three-member tribunal to hear the matter pursuant to KRS 161.790. The Tribunal conducted a hearing and set aside the suspension.
3. Meyers v. Chapman Printing Co., Inc., Ky., 840 S.W.2d 814, 821 (1992).
4. Bierman v. Klapheke, Ky., 967 S.W.2d 16, 18–19 (1998).
5. Id. at 19.
6. Prosser & Keeton on Torts § 11, at 47 (5th ed.1984) (hereafter Prosser & Keeton).
7. Id. at 47.
8. Id. at 48.
9. Id.
10. Grayson Variety Store, Inc. v. Shaffer, Ky., 402 S.W.2d 424 (1966); Great Atlantic & Pacific Tea Co. v. Billups, 253 Ky. 126, 69 S.W.2d 5 (1934); Ford Motor Credit Co. v. Gibson, Ky. App., 566 S.W.2d 154 (1977). See also Columbia Sussex Corp., Inc. v. Hay, Ky.App. 627 S.W.2d 270 (1981).
11. See Great Atlantic & Pacific Tea Co. v. Smith, 281 Ky. 583, 136 S.W.2d 759 (1939); J.J. Newberry Co. v. Judd, 259 Ky. 309, 82 S.W.2d 359 (1935); and Louisville & Nashville Railroad Co. v. Mason, 199 Ky. 337, 251 S.W. 184 (1923).
12. 310 Ky. 205, 220 S.W.2d 398 (1949).
13. Ky., 265 S.W.2d 64 (1954).
14. Ky. App., 554 S.W.2d 903 (1977).
15. Daugherty v. Kuhn’s Big K Store, Ky. App., 663 S.W.2d 748, 752 (1983) (quoting Kentucky Commission on Human Rights v. Fraser, Ky., 625 S.W.2d 852, 855 (1981)).
16. Brewer v. Hillard, Ky. App., 15 S.W.3d 1, 8 (1999).
17. Graves v. Dairyland Insurance Group, Ky., 538 S.W.2d 42, 45 (1976).
18. Vitale v. Henchey, Ky. 24 S.W.3d 651, 659 (2000) (citing 6 Am. Jur. 2d., Assault and Battery §§ 144 and 146).
19. Rigazio v. Archdiocese of Louisville, Ky. App., 853 S.W.2d 295, 299 (1993).
20. Ky., 671 S.W.2d 247 (1984).
21. Restatement (Second) of Torts, § 46(1) (1965).
22. Humana of Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1, 2–3 (1990).
23. Kroger Co. v. Willgruber, Ky., 920 S.W.2d 61, 65 (1996).
24. Rigazio, 853 S.W.2d at 299; Brewer v. Hillard, 15 S.W.3d at 7–8. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/02%3A_Intentional_Torts/2.04%3A_Intentional_Infliction_of_Emotional_Distress_%28IIED%29.txt |
Questions or Areas of Focus for the Readings
• How does IIED fit with your understanding of the allocation of questions of law, versus fact?
• How does IIED fit with your understanding of the purpose and operation of the intentional torts overall?
• How might IIED advance or obstruct goals of racial and social justice?
(9 Wash. App.2d 283)
*285 ¶ 1 Over the course of four months, Paul Patnode regularly and repeatedly remote-started his Ford F-250 pickup, revved its engine, and activated its alarm to scare Junghee Spicer’s young piano students as they walked past his truck on the way to their piano lessons. Mr. Patnode’s purpose was to interfere with Ms. Spicer’s piano lesson business and to cause her severe distress. He failed in his first objective, but accomplished the second. The trial court found in favor of Ms. Spicer on her claim of outrage and awarded her \$40,000.
¶ 2 The primary question we answer is whether Mr. Patnode’s conduct was sufficiently outrageous and extreme to sustain the trial court’s award. Conduct that is done infrequently merely to annoy a person cannot form the basis of an outrage claim. But the same conduct, done frequently over a period of weeks or months with the intent to cause severe emotional distress to a person, can form the basis of an outrage claim. We hold that Mr. Patnode’s conduct was sufficiently outrageous and extreme to present a question of fact. For this reason, we defer to the finder of fact and affirm.
FACTS[1]
Background prior to purported tortious conduct
¶ 3 Paul and Melissa Patnode live across Lyle Loop Road from Junghee and David Spicer. In 2009, Ms. Spicer began teaching private piano lessons in her home, mostly to children. That year, Mr. Spicer suffered a stroke. Three years later, he had to retire early. To supplement their income, Ms. Spicer increased the number of piano lessons she taught.
¶ 4 In February 2012, Mr. Patnode complained to the Spicers about Ms. Spicer’s piano teaching business. Unable *286 to resolve the problems, Mr. Patnode complained to Yakima County. His complaints included increased traffic, damage to a sprinkler in his front yard, noise from car doors shutting and remotely locking, and headlights coming into his house.
¶ 5 The complaints prompted Yakima County to require the Spicers to obtain a conditional use permit for their business. On July 11, 2012, the Spicers obtained a minor home occupation permit from Yakima County. The permit authorized Ms. Spicer to teach piano lessons for up to five students per day. Lessons were permitted from 2:00 p.m. to 6:00 p.m., Monday through Friday, September through May. The permit required the Spicers to provide off-street parking for customers.
¶ 6 In August 2012, Yakima County issued a modified permit that authorized Ms. Spicer to provide lessons for two additional months per year and increase the number of students to six per day. The Spicers were still required to provide off-street parking for customers.
¶ 7 Throughout 2012, Mr. Patnode continued complaining to Yakima County about Ms. Spicer’s business. His complaints included Ms. Spicer teaching instruments other than piano and teaching outside the authorized hours. In addition, he complained that parents dropped their children off and picked them up along the street. He believed that this violated the off-street parking requirement.
¶ 8 In December 2012, Mr. Patnode sued the Spicers and alleged that their piano business violated the restrictive covenants that applied to the neighborhood. In 2014, the Spicers prevailed on summary judgment. Mr. Patnode was ordered to pay more than \$30,000 for the Spicers’ attorney fees and costs.
¶ 9 In 2014, the city of Selah annexed the parties’ neighborhood. Mr. Patnode began complaining to the city of Selah that Ms. Spicer continued to violate her modified permit. That year, the Spicers formed Yakima Arts Academy, LLC *287 (YAA). Ms. Spicer, through YAA, continued to teach piano lessons, both in her house and also in a leased building in Yakima.
Purported tortious conduct
¶ 10 From around Thanksgiving 2015 to March 24, 2016, Mr. Patnode parked his Ford F-250 diesel pickup along the sidewalk next to the Spicers’ residence where piano students entered the Spicers’ home. Other vehicles belonging to Mr. Patnode or his household also parked along the Spicers’side of the street.
¶ 11 During this time, Mr. Patnode regularly and repeatedly remote-started his F-250 and set off its alarm when Ms. Spicer’s students and their parents walked by the F-250. Ms. Spicer observed this conduct approximately 12 times. When Ms. Spicer observed this conduct, it frightened her and her students. Mr. Spicer observed this conduct about six times.
Ms. Spicer’s 2016 anti-harassment petition
¶ 12 In 2016, Ms. Spicer petitioned for an anti-harassment order against Mr. Patnode. Based on evidence presented at the anti-harassment hearing, the court granted Ms. Spicer’s request and entered an anti-harassment order. The order prevented Mr. Patnode from parking vehicles on Ms. Spicer’s side of the street and required him to disable the remote-start and alarm for his F-250. Mr. Patnode complied with the order.
This lawsuit [sic]
Partial grant of summary judgment for the Spicers
¶ 13 In May 2016, the Spicers filed this lawsuit against Mr. Patnode. They sought damages for intentional interference with their piano business and damages for intentional infliction of emotional distress. Prior to trial, the Spicers moved for partial summary judgment. The motion sought to *288 preclude Mr. Patnode from disputing (1) his conduct had no legitimate or lawful purpose and (2) his conduct caused Ms. Spicer substantial emotional distress. The Spicers contended that these issues had already been litigated and necessarily decided when they obtained the anti-harassment order in March 2016. The trial court granted their motion.
Trial
¶ 14 At trial, Ms. Spicer testified that Mr. Patnode’s conduct caused her severe emotional distress because she feared for her safety and the safety of her children and students. She explained that Mr. Patnode’s remote-starting his truck scared her because she was concerned he would “go to the next step and actually physically harm somebody.” Report of Proceedings at 131.
¶ 15 Ms. Spicer testified that Mr. Patnode caused her to suffer from anxiety and insomnia, and that she began taking anti-anxiety medication in 2013. At some point after Mr. Patnode began remote-starting his truck, Ms. Spicer began taking an additional anti-anxiety medication.
¶ 16 Two parents and one piano student testified about arriving for and leaving from piano lessons between Thanksgiving 2015 and March 24, 2016. They testified they observed Mr. Patnode’s F-250 remotely starting, its engine revving, and its alarm activating on multiple occasions. One parent testified that this made her scared and concerned for her children’s safety. One student testified that every time he had a piano lesson between those dates, he observed the F-250 remotely start, its engine rev loudly, and its alarm activate. The parents did not take their children out of piano lessons with Ms. Spicer, and the student who testified did not quit taking lessons from Ms. Spicer.
¶ 17 The trial court found that Mr. Patnode did not cause any loss of business to the Spicers. The court, however, did find that Mr. Patnode’s conduct was sufficiently outrageous to constitute intentional infliction of emotional distress. *289 The trial court further found that Ms. Spicer, but not Mr. Spicer, had proved compensable damages.
¶ 18 The trial court entered the following findings of fact to which Mr. Patnode assigns error:
23. In 2016, Ms. Spicer filed a petition for an anti-harassment order against Mr. Patnode. The Court takes judicial notice that following a hearing, the Yakima County Superior Court orally concluded that Mr. Patnode was remotely starting his F-250 and setting off vehicle alarms and doing so on purpose repeatedly for the purpose of harassing the Spicers, making their lives more difficult.[2]. . .
32. Junghee Spicer suffered severe emotional distress as a result of Mr. Patnode parking vehicles on the street alongside the Spicers [sic] house from Thanksgiving 2015 to March 24, 2016, and regularly and repeatedly remote starting his F-250 pickup (which included revving the engine, lights turning on) and remotely setting off the vehicle alarm while it was parked on the street alongside the Spicers’ house, where children/students and their parents were walking to and from lessons at the Spicers’ residence.
33. The conduct of Mr. Patnode described above was directed towards Ms. Spicer. Mr. Patnode sought to interfere with the Spicers’ music business. Ms. Spicer was the direct recipient of Mr. Patnode’s conduct even though she was not present for, and did not observe, all instances when Mr. Patnode remote-started his F-250 or remotely set off the vehicle alarm when students and/or parents were walking to or from piano lessons.
34. Ms. Spicer was fearful for her safety and for the safety of her students. … Ms. Spicer suffered insomnia and anxiety as a result of Mr. Patnode’s conduct. Ms. Spicer began taking anti-anxiety medication in 2013. At some time after the remote-start/alarm incidents described above, Ms. Spicer began to take *290 one additional anti-anxiety medication. At the time of trial Ms. Spicer was also taking a third anti-anxiety medication.
Clerk’s Papers (CP) at 322-26.
¶ 19 In addition, the trial court entered the following conclusion of law, to which Mr. Patnode also assigns error:
6. Mr. Patnode’s conduct … was outrageous conduct. Ms. Spicer was the object of Mr. Patnode’s course of conduct. Mr. Patnode’s conduct was directed at Ms. Spicer through her piano students and their parents. Mr. Patnode’s object was to interfere with the teaching business and cause distress to Ms. Spicer. Mr. Patnode’s conduct went beyond all possible bounds of decency, and was atrocious and utterly intolerable in a civilized society. Mr. Patnode’s conduct was intentional, he knew it would cause or inflict Ms. Spicer with emotional distress, and his conduct in fact caused Ms. Spicer severe emotional distress. CP at 327-28 (emphasis added).
¶ 20 The trial court awarded Ms. Spicer \$40,000 in damages.
¶ 21 Mr. Patnode timely appealed. A panel of this court granted oral argument, which occurred at Whitman College, in Walla Walla, Washington.
*806 ANALYSIS
¶ 22 Mr. Patnode makes three arguments:
(1) conduct that Ms. Spicer or her immediate family members did not observe cannot form the basis of Ms. Spicer’s outrage claim,(2) his conduct does not rise to the level of extreme and outrageous conduct as a matter of law, and
(3) substantial evidence does not support the trial court’s finding that Ms. Spicer suffered severe emotional distress.
We address the issues in the order argued by Mr. Patnode.
EVIDENCE NOT DIRECTLY WITNESSED BY MS. SPICER
¶ 23 Mr. Patnode argues the trial court erred by considering evidence not directly witnessed by Ms. Spicer or her *291 immediate family members. His argument implies that his conduct was directed at the young piano students.
¶ 24 When the outrageous conduct is directed at a third person, the plaintiff must be an immediate family member of the person who is the object of the defendant’s action, and he must be present at the time of the conduct. Grimsby v. Samson, 85 Wash.2d 52, 60, 530 P.2d 291 (1975) (citing RESTATEMENT (SECOND) OF TORTS § 46 cmt. l (AM. LAW INST. (1965))). This rule has no application here, where the outrageous conduct was directed at Ms. Spicer rather than at a third person.
¶ 25 Here, the trial court found:[3]
Ms. Spicer was the object of Mr. Patnode’s course of conduct. Mr. Patnode’s conduct was directed at Ms. Spicer through her piano students and their parents. Mr. Patnode’s object was to interfere with the teaching business and cause distress to Ms. Spicer.
¶ 26 The above finding is well supported by the evidence. For years, Mr. Patnode sought to substantially prevent, Ms. Spicer from teaching piano lessons at her house. He began by acting within the legal process. He first complained to Ms. Spicer, later he complained to Yakima County, and still later he complained to the city of Selah. When these complaints failed, he brought a lawsuit to prevent Ms. Spicer from teaching piano lessons out of her house. He alleged that Ms. Spicer’s piano lesson business violated the neighborhood’s restrictive covenants. The Spicers had that lawsuit dismissed and were awarded their reasonable attorney fees.
¶ 27 Shortly after, Mr. Patnode began acting outside the legal process. Mr. Patnode began scaring Ms. Spicer’s young *292 piano students by remote-starting his F-250, revving its engine, and activating its alarm. The young students, walking by his truck, did nothing to warrant being scared. In fact, Mr. Patnode testified he did not remote-start his truck for the purpose of scaring the piano students or their parents. The trial court reasonably found that Mr. Patnode’s conduct was not directed at the young piano students, but instead was directed through them to Ms. Spicer. Because Mr. Patnode’s conduct was directed at Ms. Spicer, the trial court did not err by considering evidence not directly witnessed by Ms. Spicer.
EXTREME AND OUTRAGEOUS CONDUCT
¶ 28 Mr. Patnode argues, as a matter of law, his conduct does not amount to extreme and outrageous conduct.
¶ 29 To constitute outrage, the conduct at issue “must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” [cc] (“Consequently, the tort of outrage ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.” [cc]
¶ 30 In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must show (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of emotional distress. [c] The claim is also known as the tort of outrage. “Although the three elements are fact questions for the jury, th[e] first element *293 of the test goes to the jury only after the court ‘determine[s] if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.’” [cc]
¶ 31 We examine Washington decisions[4] to determine what type of conduct is sufficiently outrageous and extreme to impose liability on an actor. Mr. Patnode cites Strong v. Terrell, 147 Wash. App. 376 (2008) and Snyder v. Medical Service Corporation of Eastern Washington, 98 Wash. App. 315 (1999), affd, 145 Wash.2d 233 (2001) for the proposition that inflicting emotional harm on another over a period of months is insufficient to meet the high standard of outrageousness. In both cases, the plaintiff employees were subject to demeaning and insulting verbal treatment by their supervisors over a period of months. Strong, 147 Wash. App. at 381; Snyder, 98 Wash. App. at 319. Both courts noted that liability for outrage does not extend to treatment akin to “‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’” Snyder, 98 Wash. App. at 321-22 (internal quotation marks omitted) (quoting Grimsby, 85 Wash.2d at 59); accord Strong, 147 Wash. App. at 386. The courts reviewed the supervisors’ treatment of their respective employees, determined that the treatment did not rise above insults, threats, and trivialities, and concluded that no liability existed. Strong, 147 Wash. App. at 386-87; Snyder, 98 Wash. App. at 322.
¶ 32 Mr. Patnode next cites Saldivar v. Momah, 145 Wash. App. 365 (2008) to further support the proposition that inflicting emotional harm on another over a period of months is insufficient to meet the high standard *294 of outrage. In that case, a woman and her husband fabricated allegations of sexual abuse against a physician and filed a lawsuit against him alleging that he sexually abused her. Id. at 390. The trial court dismissed the plaintiffs’ claims after they rested, finding that the sexual abuse claim was not credible and that the purported victim had lied on the stand. Id. at 383-84. The trial court also found that the attorney for the plaintiffs filed “‘irrelevant and salacious declarations … for the improper purpose of eliciting media/public attention, to harass and damage the reputation of Dr. Momah, and to … gain advantage in other litigation.’” Id. at 386. Due to plaintiffs’ false claims and their attorney’s actions, Dr. Momah lost his job, suffered a stroke, and was uninsurable and unemployable. Id. at 384. The trial court awarded Dr. Momah substantial damages on his outrage claim against the plaintiffs and their attorney. Id. at 385. The appellate court reversed and concluded that the conduct was insufficient to constitute outrage. Id. at 390.
¶ 33 We contrast Saldivar with Phillips v. Hardwick, 29 Wash. App. 382 (1981). There, the Phillips agreed to purchase the Hardwicks’ house and entered into an earnest money agreement. Id. at 384. The Hardwicks later learned that their new house would not be ready until shortly after the agreed closing date of November 25. The Phillips agreed to rent the house to the Hardwicks until December 1. The Hardwicks did not vacate as agreed. On December 2, the Hardwicks told the Phillips that because they were tenants, the Phillips were powerless to remove them. The Phillips drove by the house on December 3. They looked inside, noticed the furniture was gone, and arranged to move in the following day. The next day, when they arrived with a carload of furniture, the Hardwicks initially prevented them from moving in. When the Phillips returned with a second carload, they noticed two deputy sheriffs. Id. at 384-85. The deputies determined that the *295 Phillips had the right of possession and advised the Hardwicks of this, yet the Hardwicks refused to leave. Id. at 385. The next day, the Phillips commenced two lawsuits. The first lawsuit was an unlawful detainer, and the second lawsuit sought damages on various theories, including intentional infliction of emotional distress. The Hardwicks moved out a few days later and gave the keys to the Phillips. In the second lawsuit, the trial court found in favor of the Phillips and awarded them over \$11,000. Id. at 383. On appeal, the trial court affirmed the damages award on the basis that reasonable minds could differ as to whether the Hardwicks’ conduct was sufficiently outrageous. Id. at 388-89.
¶ 34 We cannot reconcile Saldivar with Phillips. Saldivar involved extreme conduct that caused extensive emotional and financial damages. Yet, the appellate court reversed the trial court’s finding of outrage. Phillips involved a few days’ delay in occupancy that caused a mere annoyance to a home purchaser. Yet, the appellate court affirmed the trial court’s finding of outrage. We disagree with both decisions.
¶ 35 We find support for our disagreement in Wolf v. Scott Wetzel Servs., Inc., 113 Wash.2d 665 (1989), which appears to take a middle approach. There, Mr. Wolf lifted a heavy timber at work and injured his lower back. Id. at 667. He filed a workers’ compensation claim. His employer was self-insured, and Mr. Wolf’s claim was administered by Scott Wetzel Services, Inc. (SWS). Mr. Wolf received time loss and medical payments. About six months after the injury, SWS learned from Mr. Wolf’s attending physician that Mr. Wolf could return to work. As a consequence, SWS closed Mr. Wolf’s claim. A few months later, Mr. Wolf and his new physician requested the claim to be reopened on the basis that the lower back injury “‘may have contributed to psychological problems.’” SWS denied the request. Mr. Wolf appealed the denial and the denial eventually was reversed. Mr. Wolf *296 brought suit against SWS alleging bad faith denial of his claim and outrage.
¶ 36 In denying Mr. Wolf’s outrage claim, our high court explained:
As illustrative of what constitutes [outrage], … [i]n [an appellate case from California], it was alleged that an investigator hired by the insurance carrier befriended the claimant, misrepresenting his true capacity and intentions. Then, during an excursion to Disneyland, the investigator enticed the claimant into crossing a rope bridge and engaging in other physically demanding activities. Unbeknownst to the claimant, another investigator filmed her while she did so. Upon discovering at a subsequent hearing how she had been deceived, the claimant suffered a physical and mental breakdown requiring hospitalization. We agree that such conduct is indeed outrageous under the standard adopted by this court.
The same cannot be said for the conduct involved in the present case. … The facts … in the present case in no way suggest that the claims administrator for the self-insured employer engaged in conduct that could constitute the tort of outrage. Furthermore, … Mr. Wolf is alleging only “bad faith” in the administration of his workers’ compensation claim. Id. at 678-79[5] (footnote omitted).
¶ 37 As the cases reflect, what constitutes outrage is nebulous and difficult to define. But three things are clear. First, to impose liability, the law requires the conduct to be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency as to be utterly intolerable in a civilized community. [c] Second, liability may not be imposed for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Strong, 147 Wash. App. at 386; Snyder, 98 Wash. App. at 321-22. And third, somewhere between these standards, *297 the question of liability passes from a court of law to the trier of fact. Robel, 148 Wash.2d at 51.
¶ 38 Had Mr. Patnode remote-started his truck occasionally to scare passing piano students, this would not be actionable. Rather, it would constitute a mere annoyance—a triviality. But this is not what Mr. Patnode did. Instead, he engaged in a course of conduct over a period of four months intending to cause Ms. Spicer sufficient emotional distress so she would stop teaching piano lessons at her house. He intended to achieve through harassment what he had been unable to achieve through legal means. In order to achieve his purpose, he knew he had to cause Ms. Spicer severe emotional distress. And he did.
¶ 39 The dissent classifies this conduct as merely childish. We disagree. The conduct—because it occurred frequently over a period of months—clearly exceeds insults, indignities, threats, annoyances, petty oppressions, or other trivialities. We believe a trier of fact could consider the conduct to be so outrageous in character, and so extreme in degree, as to be utterly intolerable in a civilized community. For this reason, the question of liability passes from us to the trier of fact.
3. SEVERE EMOTIONAL DISTRESS
¶ 40 Mr. Patnode argues substantial evidence does not support the trial court’s finding that Ms. Spicer suffered severe emotional distress. We disagree.
¶ 41 We will not overturn a trial court’s finding of fact if it is supported by substantial evidence. [c] Substantial evidence is that amount of evidence sufficient to persuade a fair-minded person that a given premise is the truth. [c]
¶ 42 To prevail on an outrage claim, a plaintiff must show that he or she actually suffered severe emotional distress as a result of the defendant’s conduct. *298 [c] Mr. Patnode first argues that regularly and repeatedly remote-starting his F-250 over the course of four months, revving its engine, and activating its alarm could not have caused a reasonable person to suffer severe emotional distress. We disagree. It was Mr. Patnode’s objective to cause Ms. Spicer to suffer sufficient emotional distress so she would stop teaching piano lessons at her house. This objective could not be accomplished by mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Mr. Patnode’s argument that Ms. Spicer could not have suffered severe emotional distress runs counter to his objective. If he did not think his conduct would accomplish his objective, he would not have engaged in it.
¶ 43 Mr. Patnode next argues no one could believe his conduct could reasonably cause Ms. Spicer to fear for her safety. We disagree. One of the parents testified that Mr. Patnode’s conduct made her scared and concerned for her children’s safety.
¶ 44 Mr. Patnode, citing Sutton v. Tacoma School District No. 10, 180 Wash. App. 859 (2014), argues that Ms. Spicer’s symptoms of stress and insomnia were insufficient to constitute extreme emotional distress. There, a teacher pinned a first grade special education student against the wall and cornered her by chest-bumping her while yelling insults at her. Id. at 863. The child’s grandmother witnessed the incident. She testified that the child was scared, angry, sad, and mad, and did not want to return to the teacher’s class. Id. at 872. We held that this evidence was sufficient to constitute emotional distress. However, there was no evidence of how long the emotional distress lasted. Because actionable outrage requires emotional distress that is more than transient, we affirmed the trial court’s summary judgment. Id. at 874.
¶ 45 Sutton is distinguishable. Here, Ms. Spicer suffered emotional distress throughout Mr. Patnode’s four-month course of conduct.
*299 ¶ 46 Affirmed.
[Dissent] Korsmo, J.
Outrageous conduct is conduct “which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!’” Reid v. Pierce County, 136 Wash.2d 195, 201-02 (1998) (quoting Browning v. Slenderella Sys., 54 Wash.2d 440, 448 (1959) (quoting RESTATEMENT (SECOND) OF TORTS § 46(g) (AM LAW INST. 1965))). As the court more recently stated:
The conduct must be “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” [cc]
¶ 47 The main element of an outrage claim is, of course, outrageous behavior. Remote starting a car or setting off a car alarm when someone is walking past simply is not atrocious conduct, nor is it “utterly intolerable in a civilized community.” Mr. Patnode’s behavior was juvenile, childish, oafish, puerile, immature, infantile, and lame. It would not have even qualified as a bad junior high school prank in a less sophisticated time. He was annoying, but he was not outrageous.
¶ 48 Washington requires more than this simplistic behavior to satisfy the threshold requirements for the tort of *300 intentional infliction of emotional distress. The definition of the tort is found in RESTATEMENT § 46:[6]
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the person is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
Ms. Spicer’s action proceeded under § 46(2)(b), meaning that she had to show that outrageous conduct directed at third persons in her presence resulted in bodily harm. While the remaining elements were established, the outrageous conduct element was not. She failed to meet the required threshold showing. Jackson v. Peoples Federal Credit Union, 25 Wash. App. 81, 84 (1979).
¶ 49 In Jackson, the plaintiff sued in outrage because the credit union had attempted to repossess his car at his place of work after a dispute arose over loan repayment; the incident aggravated his diabetes, a condition known to the credit union. Id. at 83-84. Division Two of this court rejected the outrage claim, determining that the behavior of the credit union failed to meet the “extreme and outrageous” standard of the tort. Id. at 84 (quoting RESTATEMENT § 46 cmt. h).
¶ 50 Proof of outrageous behavior is the sine qua non of this tort. There is no exception for the intentional infliction *301 of distress by nonoutrageous behavior. While the steady dripping of small amounts of water may erode a foundation just as effectively as a deluge, this tort is only concerned with the latter possibility. Behavior must be beyond the pale to be actionable.
¶ 51 Our case law long has reached that same conclusion. Infliction of emotional distress by intentional behavior is by itself inadequate to establish this tort. We have found far more offensive behavior than noisy car alarms and remote vehicle starting insufficient to establish outrageous behavior. E.g., Repin v. State, 198 Wash. App. 243 (2017) (holding that veterinarian’s unsuccessful attempt at euthanasia, failure to warn of risks, and the dog’s immense suffering not sufficiently outrageous); Christian v. Tohmeh, 191 Wash. App. 709, 737-38 (2015) (doctors; course of conduct—obfuscation of plaintiff’s diagnosis, yelling and shouting at her and telling her problems were in her head; telling other doctors that her emotional issues made her history less valid—insufficient to meet the “extremely high” standard of outrage); Strong v. Terrell, 147 Wash. App. 376, 388-89 (2008) (finding conduct insufficient where coworker told blonde jokes, ridiculed plaintiff’s personal life, called her a bum, and made other disparaging remarks over the course of several years). Saldivar v. Momah, 145 Wash. App. 365 (2008) (holding that filing suit against physician with malicious intent is not “‘utterly intolerable in a civilized community’”).
¶ 52 While no prior Washington case has been based on car noises, a couple of Ohio cases have rejected the notion that such behavior is outrageous. Krlich v. Clemente, 2017-Ohio-7945, 98 N.E.3d 752, 757, 759 (Ct. App.) (finding car horn honking “at all hours of the day and night,” alleged lewd gestures, and more (such as paintballing plaintiff’s home and driving on their lawn) not sufficiently extreme and outrageous for intentional infliction of emotional distress); *302Allen v. Pirozzoli, No. 103632, 2016-Ohio-2645, 2016 WL 1600344 (Ct. App. Apr. 21, 2016) (unpublished) (conduct of setting off fireworks, standing in his driveway when plaintiff would pull in the driveway, horn honking, banging on fence and windows, revving motorcycle in front of plaintiff’s house insufficient to establish outrageousness).[7]
¶ 53 Mr. Patnode is clearly a bad neighbor, but he also is bad at being an outrageous one. Although the trial court’s desire to punish him for his conduct is understandable, and appreciated by this writer, that conduct simply does not make the grade for the tort of outrage. He intentionally inflicted emotional distress, but did so in a bland enough manner that this particular claim was not actionable. This was harassment pure and simple. Since the majority rewrites the tort of intentional infliction of emotional distress by treating the outrageous conduct element as a question of fact for the trier-of-fact, I respectfully dissent.
Note 1. Are you more persuaded by the majority or dissenting opinion? What do you observe about their uses of precedent?
Note 2. At least one scholar has called for a sex-based approach to understanding emotional harm in the context of tort law. Betsy J. Grey, Sex-Based Brain Differences and Emotional Harm, 70 Duke L.J. Online 29, 55–56 (2020) Grey cautions against biological determinism (which is a phrase conveying the idea that people are the way they are based on their biological or genetic composition, which in the context of gender would mean a narrow understanding of gender as defined by biological sex). Grey surveys feminist approaches to tort law including the success of the “reasonable woman” standard successfully introduced in hostile workplace litigation. In spite of her cautions, she concludes on a note of optimism about the viability of future uses of scientific evidence to demonstrate biological differences with respect to gender and emotional harm which, she argues, could potentially possess legal relevance. Another scholar has advocated for uses of biological theories of behavior and trauma to ground IIED in objectively verifiable experiences. Cristina Carmody Tilley, The Tort of Outrage and Some Objectivity About Subjectivity, 12 J. Tort L. 283, 291 (2019).
Note 3. Does IIED need to be “reined in” in your view? Or is it serving its purpose as the last-added intentional tort aiming to capture different kinds of harms? One scholar has described IIED as more accurately understood as a “family of torts loosely captured through the notion of outrageous conduct” than a single tort. Benjamin C. Zipursky, Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law, 60 DePaul L. Rev. 473, 503 (2011) Do you agree?
Expand On Your Understanding – Socratic Script: Spicer v. Patnode
Question 1. What was the legal issue in this case? How would you formulate the rule?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. What was the holding in this case?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 3. The majority writes that “what constitutes outrage is nebulous and difficult to define. But three things are clear.” What are those three things, and how do they relate to the facts of this case? How does that relate to the holding?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 4. The tort of outrage has 3 elements in Washington state:
(1) extreme and outrageous conduct,
(2) intentional or reckless infliction of emotional distress and
(3) “actual result to plaintiff of emotional distress.”
All three elements are questions of fact yet the court nonetheless reviews Mr. Patnode’s conduct in light of the legal standard and surveys the cases in Washington state. It does so even though it generally accepts the findings of fact of the lower court. Why?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 5. Please briefly summarize the dissent’s argument from Spicer. Where the dissent relies on Jackson v. Peoples Federal Credit Union, what is the analogy that it attempts to draw? Is that analogy persuasive? Why or why not?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Reflect On Your Understanding – Spicer v. Patnode
The town of Selah, Washington, where parts of the dispute took place, recently came under fire for allegedly not being welcoming to people of color. In the wake of Black Lives Matter protests in the summer of 2020, town residents clashed over the ability to express messages of solidarity in sidewalk chalk: https://www.nytimes.com/2020/07/16/us/sidewalk-chalk-police-selah-washington.html
If it turned out to be true that the region was historically inhospitable to people of color, would that be relevant to your analysis of the facts in Spicer v. Patnode? How and why if so?
1. Mr. Patnode challenges 16 of the trial court’s findings of fact. Of these, 12 are quite nuanced and are unimportant to the issues on appeal. The remaining challenges, those to findings of fact 23, 32, 33, and 34, are specifically addressed below.
2. Mr. Patnode persuasively argues that the trial court erred by taking judicial notice of the previous court’s oral ruling. See State v. Hescock, 98 Wash. App. 600, 606, 989 P.2d 1251 (1999). We give no weight to finding of fact 23. This does not impair the same findings contained in finding of fact 32, subject to those findings being supported by substantial evidence.
3. This finding comes from the trial court’s conclusion of law 6. To the extent a conclusion of law contains a finding of fact, an appellate court will treat it as a finding of fact. Hegwine v. Longview Fibre Co., 162 Wash.2d 340, 353, 172 P.3d 688 (2007).
4. Each party cites several cases from other jurisdictions in support of their arguments. As shown below, even Washington cases are inconsistent on what type of conduct is sufficiently egregious to constitute outrage. It is, therefore, unsurprising that the out-of-state cases discussed by the parties and the dissent are inconsistent and unhelpful.
5. The Wolf court’s analysis comports with the various illustrations contained in the Restatement (Second) of Torts § 46. Whereas the conclusions reached in the intermediate appellate decisions in Strong and Snyder do not comport with the illustrations.
6. No Washington court has applied the Restatement (Third) of Torts § 46, so, like the majority, I will confine my remarks to the Restatement (Second). It should be noted that comment i in the Second Restatement is now found as comment h in the Third Restatement.
7. Unpublished Ohio opinions may be cited as authority in that state. See OHIO SUP. CT. REP. OP. R. 3.4. Thus, they may be relied on in this state. GR 14.1(b). | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/02%3A_Intentional_Torts/2.05%3A_IIED-_A_Deeper_Dive_%28Socratic_Script%29.txt |
Elements of Trespass to Chattels
• Intent
• To use or intermeddle with the chattel of another or to dispossess the other of their chattel
• Without permission or justification, and which
• Causes harm to or destruction of the chattel or causes a substantial interference with the possessor’s use of the chattel
Elements of Conversion
• Intent
• To exercise dominion or control over a chattel
• Which dispossesses or deprives its owner permanently or indefinitely
“Chattels” means “personal property” (as opposed to “real property” like land or intellectual property like patents, copyright or trademarks). Chattels include animals: the law treats pets as well as livestock as chattels. Chattels do not include cash; generally, chattels are “things.”
The trespass in the tort’s name refers to the intentional use of another’s chattel or interference without permission or justification for the use or interference, resulting in destruction or demonstrable harm. The tort of conversion conceptualizes the harm more broadly: it is the ownership interest that has been violated because the defendant has “exercised control” over the plaintiff’s property.
The tort of trespass to chattels is somewhat similar to the interest we protect through battery: a right to be free from physical invasions, except the interest here is narrower. Recall that battery did not require proof of harm and even a “beneficial” invasion could be a battery if unconsented. The interest protected through battery was the inviolability of the body. Similarly, the interest protected through the tort of trespass to land is the inviolability of the ownership of land. Conversion is more similar to battery and trespass to land in that protects a broader interest than mere harm to stuff: it protects the inviolability of one’s ownership right. Consequently, a plaintiff who can show that their ownership right has been interfered with in the defendant’s exercising control over the plaintiff’s chattel will not have to prove harm. Just as was the case with battery, making out the elements proves the invasion of the interest and it is the invasion of the interest that constitutes the harm.
The intent required for both of these personal property torts is similar to the intent for battery: simply using or “interfering” with the chattel, even without any knowledge that one is interfering with another’s possessory interest, is enough; specific intent to invade another’s interest is not necessary. (Distinguish this from false imprisonment, which requires the specific intent to confine.) The trespassory use must be substantial; it would trivialize the judicial system if mere annoyances over objects of common use were litigable.
Trespass to chattels is sometimes helpful in pursuing a claim for another’s intentionally harming one’s animals. However, when serious damage to personal property, including animals, occurs, the tort of conversion is the usually the more appropriate action to bring and as a matter of practice, the two torts are often brought together as alternative theories of liability. While conversion requires a higher showing with regard to the defendant’s conduct, if the plaintiff can successfully plead it, the plaintiff need not prove harm. By contrast, to succeed in an action for trespass to chattels, the plaintiff must prove the alleged harm or destruction to the chattels. Note that causing the value of the chattel to drop counts as “harm” to the chattel. The plaintiff can recover for all the harm to the chattel and incidental damages the unauthorized use causes. The measure of damages is the market value at the time of the dispossession or intermeddling.
For example, if a person borrows their roommate’s car without permission and returns it safely without damage, there has been no trespass to chattels so long as the owner did not suffer as a result of not having it available during the time of the roommate’s use. Trespass to chattels would require that the driver harm the car or that the owner need the car and be unable to use it during the specified time of the unauthorized use. If the owner needed it for some purpose and had to take a cab instead of driving, for instance, or missed an opportunity for a job interview, the damages from the tort could compensate for those harms even if the car was not damaged.
(569 F. Supp.2d 676)
[Adam Grosch, a gambler, brought claims of trespass to chattels and conversion against the Hollywood Casino Corporation, where he had been a patron, and the Mississippi Gaming Commission; the Commission moved to dismiss the plaintiff’s claims for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) arguing that such claims are within the exclusive jurisdiction of the Mississippi Gaming Commission pursuant to Mississippi statutes.]
“The difference between trespass to chattels and conversion is primarily one of degree. Trespass to chattels in modern tort law involves interference or damage that is of a less serious or substantial nature. Conversion claims involve substantial interference or damage. Otherwise the elements are the same. Conversion is by far the more important of the two torts.” [c] To prevail on a claim of trespass to chattels, a plaintiff “must establish *678 that there has been an unauthorized interference with his possession of personal property, or an unauthorized use of his personal property.” [c] “If the interference is of such a substantial nature that the defendant can justly be compelled to pay the entire value of the chattel, the plaintiff’s remedy is an action for conversion.” [c] “[T]here is a conversion only when there is an ‘intent to exercise dominion or control over goods which is inconsistent with the true owner’s right.’ While intent is necessary, it need not be the intent of a wrongdoer.” [c]
The Second Amended Complaint does not specifically delineate the plaintiff’s case theory regarding his claims for trespass to chattels and conversion. The court surmises from the factual background and the briefs that the plaintiff alleges that the defendants exercised dominion and control over his property—i.e., the money that is represented by the casino chips he undisputedly won—which were inconsistent with his ownership rights because the defendants would not cash in his chips unless and until the plaintiff handed over his driver’s license to the casino. The plaintiff argues that the defendants had no right to require that he relinquish dominion and control of his ID to the casino for any purpose other than simply verifying his identity.
In the instant motion, the Hollywood Casino characterizes the dispute as one wherein the plaintiff looked to be under twenty-one years of age and that they simply wanted his ID to verify his age. The plaintiff argues that they already knew he was over twenty-one, since he had a player’s card and would not have been allowed in the area where he gambled. Furthermore, the plaintiff alleges that he did not refuse to prove his age by showing his ID but rather refused to physically give it to the casino because he feared they would copy his ID and send it to other casinos as a warning that the plaintiff was a card counter.
Hollywood’s primary argument is that the claims of trespass to chattels and conversion should be dismissed because they are within the exclusive jurisdiction of the Mississippi Gaming Commission since they involve a “claim by a patron … for payment of a gaming debt” pursuant to § 75–76–157(2) of the Mississippi Gaming Control Act. Hollywood cites Grand Casino Tunica v. Shindler, 772 So.2d 1036, 1038 (Miss. 2000) for the proposition that the Mississippi Gaming Commission has exclusive jurisdiction over “all gaming matters” and that the trespass to chattels and conversion claims are “gaming matters.”
The court disagrees. [***] The Mississippi Supreme Court has recently indicated that “all gaming matters” means “gaming debts” in relation to § 75–76–157. In Ameristar Casino Vicksburg, Inc. v. Duckworth, 990 So.2d 758, 2008 WL 2447274 (Miss. June 19, 2008), the Court concluded that a dispute involving a raffle at a casino was not within the jurisdiction of the Mississippi Gaming Commission because the dispute did not involve a game of gambling or a “gaming debt” pursuant to § 75–76–157. [***] If Hollywood were correct that the gaming commission enjoys exclusive jurisdiction over “all gaming matters” when defined expansively as “any dispute that would not exist but for participation in gambling,” then, in theory, all of the plaintiff’s remaining Mississippi-law causes of actions—i.e., false arrest, false imprisonment, abuse of process, and malicious prosecution—would also be within the exclusive jurisdiction of the gaming commission. Section 75–76–157(2) by its plain language clearly does not indicate this. Rather, it confines its reach to claims involving payment of gaming debts.
The plaintiff in the instant case argues that his trespass to chattels and conversion claims are not claims for gaming debts since he is not asserting “[a] claim … for payment of a gaming debt” per § 75–76–157(2) because he in fact received his money. Rather, the focus of his claims, he argues, is on the unlawful withholding of his undisputed winnings unless and until he turned over his other personal property—i.e., his identification—to the control and dominion of the defendants. The plaintiff alleges that he never agreed to hand over his ID to the casino and they would not have received and copied it but for the actions of the Tunica County Sheriff’s Department in taking his ID from him.
The court is persuaded that this understanding of the plaintiff’s trespass to chattels and conversion claims takes them out of the realm of seeking payment for a gaming debt. Therefore, the gaming commission does not have exclusive jurisdiction over these claims pursuant to § 75–76–157(2).
[***] Motion to dismiss the plaintiff’s claims for trespass to chattels and conversion for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) is DENIED.
Note 1. What is the chattel with respect to which the plaintiff alleges he has been dispossessed?
Note 2. At trial, Grosch did indeed prevail on his personal property claims. However, he also brought numerous claims against the casino as well as the County, including violation of his Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 as well as claims of false arrest, false imprisonment, abuse of process, malicious prosecution and violation of state constitutional rights. Grosch was able to provide evidence that the casino and the Sheriff routinely engaged in some form of collusion involving the stratagem of the casino’s refusing to hand over winnings unless players yielded their ID cards and the casino and Sheriff unlawfully detaining players.
The jury found the Hollywood Casino was liable for conversion and trespass to chattels and awarded \$925.00, the cash value of the chips Grosch had won and that the casino had refused to cash for him unless he handed over his license. The award was upheld on appeal even though by that point Grosch had recovered his ID and had received the value of his chips. The award was given to reflect the interference with his possessory interest, not to compensate him for the exact value of the chips. He also sought punitive damages and the jury found, by clear and convincing evidence, that “Hollywood casino should pay punitive damages for the plaintiff’s § 1983 claim and his state-law claims for false imprisonment, malicious prosecution, abuse of process, conversion, and trespass to chattels in a total amount of \$600,500.00.” This amount was also upheld on appeal. Grosch v. Tunica Cty., Miss., 2009 WL 161856, at *1 (N.D. Miss. Jan. 22, 2009).
Note 3.Effect of Mistake. Note that mistaken beliefs regarding the chattel are not usually a defense. If in Grosch the casino had reasonably confused his chips with another player’s, it would not alter the liability analysis unless the casino rectified its error immediately. Even a good-faith use of a chattel can satisfy the elements of both of the personal property torts if the belief is unreasonable in its mistake. When the mistake is reasonable—such as when a patron accidentally claims the wrong black suitcase at the airport baggage claim or the wrong generic-looking umbrella from a restaurant—whether liability attaches will depend on how quickly they discover and rectify the error.
Note 4. Trespass to chattels is a somewhat old-fashioned tort in that it is typically an action for damage to compensate for the costs of repairing or replacing property, which is often not worth bringing a lawsuit to redress. For some time, the use of trespass to chattels had fallen out of favor. However, in the internet era, trespass to chattels experienced a revival when the tort was mobilized to address unwanted commercial email such as spam, unwanted faxes, and “spiders” or automatic programs that search the internet and were held to be trespassing various database servers. Laura Quilter, The Continuing Expansion of Cyberspace Trespass to Chattels, 17 Berkeley Tech. L.J. 421 (2002). For example, in eBay, Inc. v. Bidders Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000), the online auction site was held to be likely to prevail, for purposes of obtaining a preliminary injunction, against an online auction aggregating site which was conducting automated searches of the plaintiff’s site without permission given evidence that the defendant’s searches diminished the value of the plaintiff’s site. The court explained its reasoning thus:
[T]he electronic signals generated by the [defendants’] activities were sufficiently tangible to support a trespass cause of action.” [***] In order to prevail on a claim for trespass based on accessing a computer system, the plaintiff must establish: (1) defendant intentionally and without authorization *1070 interfered with plaintiff’s possessory interest in the computer system; and (2) defendant’s unauthorized use proximately resulted in damage to plaintiff. Id. at 1069-70.
The use of trespass to chattels to address this new source of harm (and annoyance) reflects one of the ways in which tort law adapts to changing social, technological and economic circumstances.
(2012 WL 5077726)
*1 Plaintiffs Maria Luis and Lucy Gomez brought this lawsuit against Defendants Smith Partners & Associates, Ltd., Smith REO Properties, Coya Smith, and Andy Horn, alleging violations of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 (“Fair Housing Act”), 42 U.S.C. § 3601 et seq., [***] and Illinois law. Doc. 1. Defendants have moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6). The motion is granted in part and denied in part. [***]
Plaintiffs reside at 5818 North Spaulding in Chicago, Illinois (“Property”). Doc. 1 at ¶ 5. [Editor’s note: All remaining references to the record omitted] Smith Partners and Associates, Ltd ., which operates under the assumed name Smith REO Properties, is a corporation that owns and manages residential properties. Smith Partners managed the Property throughout the relevant time period. Smith owns and operates Smith Partners. Horn is an agent of Smith Partners.
Beginning in Winter 2010, Defendants undertook a campaign of threats and harassment intended to force Plaintiffs to leave the Property. Defendants targeted Plaintiffs because they are Hispanic and in the belief that Hispanics are unwilling to defend themselves through the legal system. Horn entered the Property’s basement at some point in Winter 2010 and removed the furnace, causing the pipes to freeze. In November 2010, Horn padlocked the front door, which prevented Plaintiffs from entering the residence. In Spring 2011, Horn banged on the windows and doors and removed letters from the mailbox that were addressed to Plaintiffs. In May 2011, Horn entered the basement and removed most of its contents, including the furnace that Plaintiffs bought to replace the one that Horn had removed. In August 2011, Horn had the electricity and water disconnected; while doing so, Horn entered the Property and struck Gomez with the intent of intimidating Plaintiffs into vacating the property. In March 2012, Horn broke the locks to the front doors of each apartment at the Property. Horn did all of this at the request of Smith, his boss. On April 17, 2012, the City of Chicago turned off the water due to non-payment by Defendants.
I. Fair Housing Act (Count I)
*2 The Fair Housing Act prohibits discrimination against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b). The Act also makes it unlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617. The Act governs conduct regardless of whether it occurs before or after a tenant or owner has acquired a property interest in a dwelling. [c]
To survive a motion to dismiss, a Fair Housing Act claim must allege discrimination related to the terms, conditions, privileges, or provisions of services of a dwelling. [cc] A claim also must plead the type of discrimination that occurred, by whom, and when. [cc] Here, Plaintiffs allege the type of discrimination that occurred (race or national origin), by whom (Smith, Horn, and Smith Partners), and when (from Winter 2010 through April 2012). These allegations are sufficient to survive a Rule 12(b)(6) motion. [cc] [***] [Editor’s note: Count II, a RICO claim, is omitted]
III. State Law Claims
A. Trespass to Chattel/Conversion (Count III)
Although the complaint labels Count III “Trespass to Chattel,” Plaintiffs’ brief recharacterizes the claim as one for conversion. Count III survives regardless of whether it is viewed as a trespass to chattel claim or a conversion claim. Under Illinois law, trespass to chattel is “injury to or interference with possession, with or without physical force … to personal property.” [c] “A trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” Ibid. (quoting Restatement (Second) of Torts § 217 (1965)). The complaint alleges that Defendants stole Plaintiffs’ furnace, depriving them of its use. The complaint also alleges that Defendants locked the basement so that Plaintiffs could not access it or its contents. This is sufficient to state a trespass to chattel claim. See Matthews v. Homecoming Fin. Network, 2005 WL 2387688, at *8 (N.D.Ill. Sept.26, 2005) (allegation that the “defendants forcibly entered [plaintiff’s] home without his consent and changed the locks” are sufficient to state a trespass to chattel claim).
“Any unauthorized act by which an owner is deprived of his property permanently or indefinitely, or the exercise of dominion over property inconsistent with the rights of the owner, [is] a conversion.” [***] Because Plaintiffs allege a permanent deprivation of property in their possession caused by Defendants’ unauthorized acts, they have pleaded a plausible conversion claim.
B. Battery (Count IV)
To state a battery claim under Illinois law, a plaintiff must allege that the defendant engaged in “the wilful touching of the person of another” and “intend [ed] to cause a harmful or offensive contact.” [cc] The complaint alleges that “Horn entered the property illegally, threatened Plaintiffs, and struck Plaintiff Lucy Gomez,” and that “[t]he battery against Lucy Gomez was intended, through actual physical force, to intimidate Plaintiffs into vacating the property.” These allegations are sufficient to state a battery claim. [***]
*7 Defendants submit that the battery claim cannot proceed against Smith Partners and Smith because the complaint does not allege that they intended for Horn to commit a battery and because respondeat superior liability does not attach in these circumstances. The complaint, however, alleges that Horn was acting within the scope of his agency at all relevant times and that he acted at Smith’s request. Under settled tort principles, “the employer’s vicarious liability extends to the negligent, willful, malicious, or even criminal acts of its employees when such acts are committed within the scope of the employment.” [cc] It follows that the battery claim stands as to Smith Partners and Smith.
C. Intentional Infliction of Emotional Distress (Count V)
To state an intentional infliction of emotional distress claim under Illinois law, a plaintiff must allege that: (1) the defendant’s conduct was extreme and outrageous; (2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that his conduct would do so; and (3) the defendant’s conduct actually caused severe emotional distress. [cc] [***]
Here, Plaintiffs allege that Defendants took advantage of their role as property managers to perpetrate a pattern of harassing and intimidating conduct, including conduct as extreme as removing Plaintiffs’ furnace during a Chicago winter. The sole alleged purpose of these alleged actions was to drive Plaintiffs from the Property, and Plaintiffs suffered emotional distress as a result. “An important factor” in intentional infliction of emotional distress claims “is whether a defendant abused a position of authority.” [c] Plaintiffs have alleged sufficient facts to state a plausible emotional distress claim.
D. Chicago Residential Landlord and Tenant Ordinance (Count VI)
*8 The Chicago Residential Landlord and Tenant Ordinance (“RLTO”) provides in relevant part as follows:
It is unlawful for any landlord or any person acting at his direction knowingly to oust or dispossess or threaten or attempt to oust or dispossess any tenant from a dwelling unit without authority of law, by plugging, changing, adding or removing any lock or latching device; or by blocking any entrance into said unit; or by removing any door or window from said unit; or by interfering with the services to said unit; including but not limited to electricity, gas, hot or cold water, plumbing, heat or telephone service; or by removing a tenant’s personal property from said unit; or by the removal or incapacitating of appliances or fixtures, except for the purpose of making necessary repairs; or by the use or threat of force, violence or injury to a tenant’s person or property; or by any act rendering a dwelling unit or any part thereof or any personal property located therein inaccessible or uninhabitable.
Chicago, Ill., Municipal Code § 5–12–160. The complaint alleges that Defendants sought to oust Plaintiffs by removing their furnace, padlocking the Property’s front door, turning off their hot water heater, and breaking their locks. Such acts violate § 5–12–160 of the RLTO, so the viability of Count VI turns on whether the relationship between Plaintiffs and Defendants is governed by the ordinance.
Defendants argue that by not alleging the existence of a valid lease agreement, the complaint fails to adequately plead that Plaintiffs are “tenants.” The argument does not carry the day. Although the complaint does not expressly allege that Plaintiffs are “tenants,” it alleges that they are “residents” and refers to the existence of a “tenancy” during the relevant period. This is sufficient at this point to plead that Plaintiffs are tenants. [***]
E. Statute of Limitations
The battery and intentional infliction of emotional distress claims are governed by a two-year statute of limitations. See 735 ILCS 5/13–202 (2008); [cc] So, too, is the RLTO claim. See Landis v. Marc Realty, LLC, 235 Ill.2d 1, 335 Ill.Dec. 581, 919 N.E.2d 300 (Ill.2009). Defendants contend that portions of these claims are barred on limitations grounds. As noted above, however, the instances of alleged misconduct all occurred within two years of the complaint’s filing. Defendants’ contention accordingly has no merit. [***]
Defendants also contend that Smith is not liable for any torts committed by Smith Partners or Horn. As noted above, the complaint alleges that Horn undertook his tortious actions at Smith’s request and as an agent of Smith Partners. “It is well established that traditional vicarious liability rules ordinarily make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment.” [cc] This is true “even if the principal neither authorized nor ratified the acts.” [c] It follows, at least at the pleading stage, that Smith is a proper defendant.
*10 [The court denied the motion to dismiss as to Counts I, III, IV, V and VI].
Note 1. Given the ample evidence of multiple kinds of tortious conduct in this case, does it surprise you that the defendants fought it rather than settling? What was behind their litigation strategy, do you think?
Note 2. Tort law is available to remedy numerous harms the plaintiffs suffered on these facts. But should tort law be the appropriate remedy in a case like this one? Why or why not? Should tort law be necessary if the Fair Housing Act and municipal laws already proscribe the kinds of acts in which the defendant engaged? What does tort law add? What are the costs of using tort law to remedy these wrongs?
(257 F.2d 920)
This case is before us for the second time. It was brought by the plaintiffs, who are Indians of the Navajo tribe, under the provisions of the Federal Tort Claims Act (28 U.S.C.A. §§ 1346(b) and 2671 et seq.), to recover \$100,000 as damages for the loss of horses and burros which they allege were wrongfully and unlawfully seized and destroyed in the State of Utah by agents of the United States Bureau of Land Management. The trial court found for the plaintiffs and entered a lump sum judgment of \$100,000. We reversed on the grounds that the horses and burros in question had been lawfully seized and disposed of under the Utah ‘abandoned horse’ statute. *922 Utah Code Ann.1953, Title 47, Chapter 2. We did not consider the question of liability under the Federal Tort Claims Act, or the sufficiency of the findings as to damages. United States v. Hatahley, 10 Cir., 220 F.2d 666. The United States Supreme Court reversed, and held that the provisions of the Federal Range Code must be complied with before local procedures may be resorted to for the removal of trespassing livestock from the public range. It was also held that the acts of the government agents ‘were wrongful trespasses not involving discretion’, which gave rise to a claim compensable under the Federal Tort Claims Act. The case was remanded for specific findings as to damages. Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 752, 100 L.Ed. 1065.[1] The factual background is set forth in our former opinion and that of the Supreme Court, and need not be repeated here.
Upon remand, the District Court took additional evidence on the issue of consequential damages, and without an amendment of the complaint, entered a judgment against the United States for the total sum of \$186,017.50. The value of each horse or burro taken was fixed at \$395; each plaintiff was awarded \$3,500 for mental pain and suffering; and damages were given for one-half of the value of the diminution of the individual herds of sheep, goats and cattle between the date the horses and burros were taken in 1952, and the date of the last hearing in 1957. Except as to those relating to specific damages for each plaintiff, the findings of fact are generally a resume of the evidence favorable to the plaintiffs, and inferences which the court thought could be reasonably drawn therefrom. The United States contends that there were numerous errors in rejecting evidence, limiting cross-examination, and in disregarding fundamental principles of law. It vigorously insists that there has not been a fair and impartial trial as to damages, and that one cannot be obtained except before another Judge.
The parties stipulated as to the number of horses and burros which were taken from each plaintiff in the range clearance program. The damage for this wrongful taking is to be determined by the law of Utah. In Egelhoff v. Ogden City, 71 Utah 511, the Supreme Court of Utah, in discussing the rule as to damages in a case of this kind, said:
‘* * * Appellant contends that the measure of damages in this case is the difference between the market value of the property immediately before and immediately after the injury. It may be conceded that such is the proper measure of damages. It has been held by this court that the measure of damages for the destruction of a house is the ‘cost to reproduce it, and the value of its *923 use while that was being done.’ [c].[2]
Cf. Angerman Co., Inc., v. Edgermon, 76 Utah 394. (Personal property not entirely destroyed). In a recent case the Utah court applied the replacement rule where personal property (poultry) was destroyed. [cc]
The fundamental principle of damages is to restore the injured party, as nearly as possible, to the position he would have been in had it not been for the wrong of the other party. [cc][3] Applying this rule, the plaintiffs were entitled to the market value, or replacement cost, of their horses and burros as of the time of taking, plus the use value of the animals during the interim between the taking and the time they, acting prudently, could have replaced the animals.
The plaintiffs did not prove the replacement cost of the animals, but relied upon a theory that the animals taken were unique because of their peculiar nature and training, and could not be replaced. The trial court accepted this theory, and relying upon some testimony that a horse or a burro could be traded among Indians for sheep, goats or cattle worth a stated price, together with the owner’s testimony of the value, arrived at a market value of \$395 per head. No consideration was given to replacement cost. The court rejected evidence of the availability of like animals in the immediate vicinity, and their value. This, we think, was error.
It is true that animals of a particular strain and trained for a special purpose are different from animals of another strain and not so trained, but that does not mean that they cannot be replaced by animals similarly developed and trained, or which may be trained after acquisition. Ordinarily every domestic animal is developed and trained for the purpose to which the owner intends to use it. This development and training adds to its usefulness and generally increases the market value of the animal. In arriving at a fair market value of destroyed animals, the court should considered evidence of the availability of like animals, together with all other elements which go to make up market value. In proper instances, parties and witnesses may be cross-examined on the subject.
Likewise, we think the court applied an erroneous rule, wholly unsupported by the evidence, in arriving at the amount of loss of use damage. There was testimony by the plaintiffs that because of the loss of their horses and burros they were not able to maintain and look after as much livestock as they had been able to before the unlawful taking, consequently the size of their herds was reduced. If the unlawful taking of the animals was the proximate cause of the herd reductions, the measure of damages would be the loss of profits occasioned thereby. [c]
*924 Applying the same formula to all plaintiffs, the court, without giving consideration to the condition, age or sex of the animals, found the value of the sheep and goats in 1952 to be \$15 per head, the cattle to be \$150 per head. The number of sheep, goats and cattle which each plaintiff had in 1952, as well as the number which each had at the date of the last hearing was established. This difference was multiplied by \$15, in the case of sheep and goats, and by \$150, in the case of cattle, and judgment was entered for one-half of the amount of the result. No consideration was given to the disposition of the livestock by the plaintiffs in reducing the herds. For example, the plaintiff Sakezzie had 600 sheep and goats and 101 head of cattle when his horses and burros were taken in 1952. At the date of the last hearing in 1957, he had 160 head of sheep and goats and 39 head of cattle. The dollar value of the difference at \$15 per head for the sheep and goats, and \$150 per head for the cattle, amounted to \$15,900. The court found ‘that approximately fifty percent of this amount represents damages to the plaintiff proximately caused by deprivation of the use of plaintiff’s horses, and on this basis plaintiff is entitled to recover \$7,950.00 as consequential damages resulting from such deprivation’. The result, insofar as it related to use damage, was arbitrary, pure speculation, and clearly erroneous. In United States v. Huff, 5 Cir., 175 F.2d 678, a case where the method of computing damages for loss of sheep and goats was strikingly similar to that used here, the court said:
‘Moreover, there has been no sufficient showing of how much of the damage from the loss of the sheep and goats was proximately caused by the Government’s failure to maintain and repair the fences under the lease, and how much of the damage resulted from the various other causes. There is no testimony whatever as to the specific dates of loss of any of the sheep and goats, or as to their age, weight, condition and fair market value at the time of the alleged losses. It therefore becomes patent that the evidence as to the loss of these animals in each case fails to rise above mere speculation and guess.’ 175 F.2d 680.[4]
Plaintiffs’ evidence indicated that the loss of their animals made it difficult and burdensome for them to obtain and transport needed water, wood, food, and game, and curtailed their travel for medical care and to tribal council meetings and ceremonies. Plaintiffs also testified that because of the loss of their animals they were not able to grow crops and gardens as extensively as before. These were factors upon which damages for loss of use could have been based. This does not exclude the right to damages for loss of profits which may have resulted from reduction of the number of livestock, or actual loss of the animals, if the unlawful acts of the defendant agents were the proximate cause of the loss and were proved to a reasonable degree of certainty. [cc] But the right to such damages does not extend forever, and it is limited to the time in which a prudent person would replace the destroyed horses and burros. The law requires only that the United States make full reparation for the pecuniary loss which their agents inflicted.
The District Court awarded each plaintiff the sum of \$3,500 for mental pain and suffering. There is no evidence that any plaintiff was physically injured *925 when his horses and burros were taken. There was evidence that because of the seizure of their animals and the continued activity of government agents and white ranchers to rid the public range of trespassers, the plaintiffs and their families were frightened, and after the animals were taken, they were ‘sick at heart, their dignity suffered, and some of them cried’. There was considerable evidence that some of the plaintiffs mourned the loss of their animals for a long period of time. We think it quite clear that the sum given each plaintiff was wholly conjectural and picked out of thin air. The District Court seemed to think that because the horses and burros played such an important part in the Indians’ lives, the grief and hardships were the same as to each. The equal award to each plaintiff was based upon the grounds that it was not possible to separately evaluate the mental pain and suffering as to each individual, and that it was a community loss and a community sorrow.[5]
Apparently the court found a total amount which should be awarded to all plaintiffs for pain and suffering, and divided it equally among them. There was no more justification for such division than there would have been in using the total value of the seized animals and dividing it equally among the plaintiffs. Pain and suffering is a personal and individual matter, not a common injury, and must be so treated. While damages for mental pain and suffering, where there has been no physical injury, are allowed only in extreme cases, they may be awarded in some circumstances. Restatement of the Law of Torts, §§ 46, 47; [cc] Any award for mental pain and suffering in this case must result from the wrongful taking of plaintiffs’ animals by agents of the United States, and nothing else.
As the case must be remanded for a new trial as to damages, we are confronted with the contention of the United States that it cannot obtain a fair and impartial trial before the same Judge because of his personal feelings in the matter. In our former opinion we had occasion to make some observations concerning the conduct of the trial. The Supreme Court referred to these observations on the bias and prejudice of the presiding Judge, and said that the trial was not so improperly conducted as to vitiate the findings. This statement did not relate to any of the findings as to damages which are under consideration here. A casual reading of the two records leaves no room for doubt that the District Judge was incensed and embittered, perhaps understandably so, by the general treatment over a period of years of the plaintiffs and other Indians in southeastern Utah by the government agents and white ranchers in their attempt to force the Indians onto established reservations.
This was climaxed by the range clearance program, with instances of brutal handling and slaughter of their livestock, which the Court, during trial, referred to as ‘horrible’, ‘monstrous’, ‘atrocious’, ‘cruel’, ‘coldblooded depredation’, and ‘without a sense of decency’. The Court firmly believed that the Indians were being wrongfully *926 driven from their ancestral homes, and suggested Presidential and Congressional investigations to determine their aboriginal rights. He threatened to conduct such an investigation himself. A public appeal on behalf of the plaintiffs was made for funds and supplies to be cleared through the Judge’s chambers.[6] From his obvious interest in the case, illustrated by conduct and statements made throughout the trial, which need not be detailed further, we are certain that the feeling of the presiding Judge is such that, upon retrial, he cannot give the calm, impartial consideration which is necessary for a fair disposition of this unfortunate matter, and he should step aside.
Plaintiffs’ claims are asserted under the Federal Tort Claims Act. In applying this Act, everyone should be treated the same. Racial differences merit no concern. Feelings of charity or ideological sympathy for the Indians must be put to one side. The deep concern which the executive and legislative branches of the government should have for the plaintiffs does not justify the court in giving them any better or worse treatment than would be given to anyone else. As Justice Jackson said in his concurring opinion in Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 355, 65 S.Ct. 690, 700, 89 L.Ed. 985: ‘The Indian problem is essentially a sociological problem, not a legal one. We can make only a pretense of adjudication of such claims, and that only by indulging the most unrealistic and fictional assumptions.’
[***]
Reversed, and remanded for a new trial as to damages only.
Note 1. What did plaintiffs seek in terms of the value of their losses? How did the various adjudicators calculate the monetary amounts of the losses suffered? How did the theories of valuation differ, comparing the judges’ and the plaintiffs’ views?
Note 2. What does the court appear to be concerned about when it writes: “Any award for mental pain and suffering in this case must result from the wrongful taking of plaintiffs’ animals by agents of the United States, and nothing else”? What does it suggest was improper or erroneous about the awards made to the plaintiffs?
Note 3. This dispute took over a decade to resolve and is reported to have been the first time Native Americans successfully sued the U.S. government for intentional wrongdoing. Yet in its bitter-fought victory, there were many reversals and losses. The original District Judge, William Ritter, was deemed too sympathetic to the Indian cause and formally ousted over his own objections. The opinion you read describes Ritter, in a manner that is internally contradictory, or at a minimum, ambivalent. On the one hand, Ritter was “incensed and embittered,” but on the other hand the treatment of Native Americans was, in the court’s own words, replete with “brutal handling and slaughter of their livestock.” The court takes Ritter to task for the use of emotional language (“‘horrible’, ‘monstrous’, ‘atrocious’, ‘cruel’, ‘coldblooded depredation’, and ‘without a sense of decency”’) and suggests that he may be incapable of being “impartial” because of his belief that “Indians were being wrongfully driven from their ancestral homes.”
Considered through a contemporary lens, the opposite appears true. Indeed, Ritter fought to try to remain on the case:
The Tenth Circuit also suggested that the case be assigned to a new judge because the original judge was biased in favor of the Navajos. Judge Ritter ignored this suggestion. His answer to the government’s application for a special master to determine damages was that he did not intend to follow the Tenth Circuit’s suggestion that he step down, “so you can lay that to one side.” The government then applied to the Tenth Circuit for the entry of a judgment on the mandate prohibiting Ritter from retrying the case a third time. The Tenth Circuit ordered that Ritter “take no further action” in the case. Because at that time the U.S. District Court for the District of Utah had only a single sitting judge (Ritter), the Chief Judge for the Tenth Circuit, Alfred P. Murrah, assigned the case to Judge Ewing T. Kerr, U.S. District Judge for the District of Wyoming. A little over a year later, the case settled. The Navajo plaintiffs received \$45,000 before deduction of attorneys fees, less than half the amount awarded them at the first trial (\$100,000) and less than a quarter of what they had been awarded at the second trial (\$186,017.50). Debora L. Threedy, United States v. Hatahley: A Legal Archaeology Case Study in Law and Racial Conflict, 34 Am. Indian. L. Rev. 1, 7-8 (2009) (internal citations omitted).
The opinion is clear in its unstinting critique of Ritter. It is thus striking to see the opinion wrestling with the issue of the court’s positionality itself. In the final paragraph of the opinion, the court writes somewhat harshly that “[r]acial differences merit no concern”. The phrase seems intended to evoke neutrality by flattening racial differences. Yet its characterization of support for the Native American position is hardly neutral; the court minimizes critique of mass territorial dispossession as “[f]eelings of charity or ideological sympathy for the Indians.” In so doing, it frames the issue in a way that effaces the United States’ role in disrupting the sociopolitical status of Native Americans.
What exactly is the nature of the court’s arguments, as it refers to “the deep concern” that “should” exist in other branches of the government but that “does not justify” its own particular action? What is intended by the phrase “[t]he Indian problem is essentially a sociological problem, not a legal one”? Note that the premise that there is an “Indian problem” disclaims judicial responsibility for creating or maintaining the “problem,” and it reinforces the existing legal hierarchy. Describing it in this way situates the problem as somehow belonging to the population the U.S. government seeks to control; it becomes a problem “about” the Native Americans instead of being acknowledged as a problem produced by violence and dominion and the mobilization of vastly disparate power and resources to entrench the status quo.
Does the court have authority, descriptively, to do more than it seems to acknowledge? Normatively, should it? What questions would you need answered to think further about these issues? Is there a point to rhetoric that acknowledges judicial powerlessness, in cases where judges truly believe they cannot act as they may wish they could?
1. In referring to damages, the Supreme Court said: ‘The District Court awarded damages in the lump sum of \$100,000, the amount sought by petitioners jointly. Apparently this award was based on the value of the horses, consequential damages for deprivation for use and for ‘mental pain and suffering.’ Under the Federal Tort Claims Act, damages are determined by the law of the State where the tortious act was committed, 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b), subject to the limitations that the United States shall not be liable for ‘interest prior to judgment or for punitive damages.’ 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. But it is necessary in any case that the findings of damages be made with sufficient particularity so that they may be reviewed. Here the District Court merely awarded the amount prayed for in the complaint. There was no attempt to allot any particular sum to any of the 30 plaintiffs, who owned varying numbers of horses and burros. There can be no apportionment of the award among the petitioners unless it be assumed that the horses were valued equally, the burros equally, and some assumption is made as to the consequential damages and pain and suffering of each petitioner. These assumptions cannot be made in the absence of pertinent findings, and the findings here are totally inadequate for review. The case must be remanded to the District Court for the appropriate findings in this regard.’ 351 U.S. 182.
2. As a general rule, market value is the highest price a purchaser is willing to pay for property, not being under compulsion to buy, and the lowest price a seller is willing to accept, not being under compulsion to sell. [cc]
3. Restatement of the Law of Torts, Section 912, states the rule as follows: ‘A person to whom another has tortiously caused harm is entitled to compensatory damages therefor if, but only if, he established by proof the extent of such harm and the amount of money representing adequate compensation with such certainty as the nature of the tort and the circumstances permit.’
4. In Graham v. Street, 2 Utah 2d 144, 270 P.2d 456, the Supreme Court of Utah said: ‘The rule is stated in 4 Sutherland, Damages, 4th Ed., Sec. 1175, as follows: ‘Only such damages are recoverable as are shown with reasonable certainty to have been sustained. Remote, contingent and conjectural losses will not be considered.’ [c]
5. The court’s finding on this subject is as follows: ‘28. It is not possible for the extent of the mental pain and suffering to be separately evaluated as to each individual plaintiff. It is evident that each and all of the plaintiffs sustained mental pain and suffering. Nor is it possible to say that the plaintiffs who lost one or two horses sustained less mental pain and suffering than plaintiffs who lost a dozen horses. The mental pain and suffering sustained was a thing common to all the plaintiffs. It was a community loss and a community sorrow shared by all. On this basis, the Court finds and awards the sum of \$3,500.00 to each of the plaintiffs as a fair and reasonable approximation of the mental pain and suffering sustained by each, as a proximate result of the taking of the horses by the defendant.’
6. The allowance of \$395 per head for the Indian horses and burros, and \$3,500 for mental pain and suffering for their loss, is of itself an indication of the desire of the presiding Judge to assist the plaintiffs for the different wrongs which they had suffered. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/02%3A_Intentional_Torts/2.06%3A_Trespass_to_Chattels_and_Conversion.txt |
Zahr K. Said
The most common defenses against the intentional torts are consent and self-defense. Additional defenses, defense of others and defense of property are also sometimes available, as are the defenses of public and private necessity. Consent is a defense for the defendant to plead but it may also be an element for the plaintiff to overcome in pleading if the facts tend to suggest that a plaintiff gave consent to physical contact (which would defeat battery) or to entry onto land (which would defeat trespass). If a person consents to something and the contact or entry on land exceeds the scope of the consent, liability may arise. Often the difficult questions concern the scope of consent given and whether it was given at all. Assuming consent was manifested, its validity will be the final issue to consider. Any consent given through fraud, mistake, duress or incapacity will cause the consent to be invalid.
O’Brien v. Cunard S.S. Co., Ltd, Supreme Judicial Court of Massachusetts (1891) (154 Mass. 272)
This case presents two questions: First, whether there was any evidence to warrant the jury in finding that the defendant, by any of its servants or agents, committed an assault [a battery][1] on the plaintiff; secondly, whether there was evidence on which the jury could have found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on ship-board, while she was on her passage from Queenstown to Boston.
On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon’s conduct must be considered in connection with the surrounding circumstances. If the plaintiff’s behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 578; McCarthy v. Railroad Corp., 148 Mass. 550, 552.
It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of emigrants, to see that they are protected from small-pox by vaccination, and that only those *274 persons who hold a certificate from the medical officer of the steam-ship, stating that they are so protected, are permitted to land without detention in quarantine, or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all emigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship’s medical officer to vaccinate such as needed vaccination, were posted about the ship in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected.
By the plaintiff’s testimony, which, in this particular, is undisputed, it appears that about 200 women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about 15 feet from the surgeon, and saw them form in a line, and pass in turn before him; that he “examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark;” that she did not hear him say anything to any of them; that upon being passed by they each received a card, and went on deck; that when her turn came she showed him her arm; he looked at it, and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before, and it left no mark; “that he then said nothing; that he should vaccinate her again;” that she held up her arm to be vaccinated; that no one touched her; that she did not tell him she did not want to be vaccinated; and that she took the ticket which he gave her, certifying that he had vaccinated her, and used it at quarantine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that *275 purpose. Viewing his conduct in the light of the surrounding circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct.
The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination was negligently performed. “There was no evidence of want of care or precaution by the defendant in the selection of the surgeon, or in the procuring of the virus or vaccine matter.” Unless there was evidence that the surgeon was negligent in performing the operation, and unless the defendant is liable for this negligence, the plaintiff must fail on the second count.
Whether there was any evidence of negligence of the surgeon we need not inquire, for we are of opinion that the defendant is not liable for his want of care in performing surgical operations. The only ground on which it is argued that the defendant is liable for his negligence is that he is a servant engaged in the defendant’s business, and subject to its control. We think this argument is founded on a mistaken construction of the duty imposed on the defendant by law. By the fifth section of the act of congress of August 2, 1882, (22 U.S.St. at Large, 188,) it is provided that “every steam-ship or other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers, exceeding fifty in number, shall carry a duly competent and qualified surgeon or medical practitioner, who shall be rated as such in the ship’s articles, and who shall be provided with surgical instruments, medical comforts, and medicines proper and necessary for diseases and accidents incident to sea voyages, and for the proper medical treatment of such passengers during the voyage, and with such articles of food and nourishment as may be proper and necessary for preserving the health of infants and young children; and the services of such surgeon or medical practitioner shall be promptly given in any case of sickness or disease to any of the passengers or to any infant or young child of any such passengers, who may need his services. For a violation of either of the provisions of this section the master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars.”
Under this statute it is the duty of the ship-owners to provide a competent surgeon, whom the passengers may employ, if they *276 choose, in the business of healing their wounds, and curing their diseases. The law does not put the business of treating sick passengers into the charge of common carriers, and make them responsible for the proper management of it. The work which the physician or surgeon does in such cases is under the control of the passengers themselves. It is their business, not the business of the carrier. They may employ the ship’s surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves if they are sick, or may go without treatment if they prefer; and, if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business, and subject to their control as to his mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner, and supply him with all necessary and proper instruments, medicines, and medical comforts, and have him in readiness for such passengers as choose to employ him.
This is the whole requirement of the statute of the United States applicable to such cases; and if, by the nature of their undertaking to transport passengers by sea, they are under a liability at the common law to make provision for their passengers in this respect, that liability is no greater. It is quite reasonable that the owners of a steam-ship used in the transportation of passengers should be required by law to provide a competent person to whom sick passengers can apply for medical treatment, and when they have supplied such a person it would be unreasonable to hold them responsible for all the particulars of his treatment when he is engaged in the business of other persons, in regard to which they are powerless to interfere. The reasons on which it is held in the courts of the United States and of Massachusetts that the owners are liable for the negligence of a pilot in navigating the ship, even though he is appointed by public agencies, and the master has no voice in the selection of him, do not apply to this case. The China, 7 Wall. 53-67; Yates v. Brown, 8 Pick. 23. The pilot is engaged *277 in the navigation of the ship, for which, on grounds of public policy, the owners should be held responsible. The business is theirs, and they have certain rights of control in regard to it. They may determine when and how it shall be undertaken, and the master may displace the pilot for certain causes. But in England it has been held that even in such case the owners are not liable. [cc] The view which we have taken of this branch of the case is fully sustained by a unanimous judgment of the court of appeals of New York in Laubheim v. De Koninglyke N.S. Co., 107 N.Y. 228, 13 N.E.Rep. 781. [cc] We are of opinion that on both parts of the case the rulings at the trial were correct. The evidence excepted to was rightly admitted. Exceptions overruled.
Note 1. Manifestations of consent can be verbal, in writing, or made orally. But as this case shows, they may also be made through physical actions. Can you think of instances—like the facts reported in this case—in which one’s actions and words may be at odds?
Note 2. Considering the range of choices Ms. O’Brien faced—remain on the ship and sail home or disembark only after being vaccinated—does her consent seem freely given or under pressures that tort law should acknowledge? Why did O’Brien initially attempt to refuse vaccination? Why do you think she sued? Was her societal status relevant in her experience on the ship?
Multiple scholars who have delved into the trial record have offered a more thorough account of Ms. O’Brien’s actions. Read the two accounts below. They are somewhat similar even if they have some differences. If these accounts are accurate, does your view of the ruling change?
From the trial record we learn that Mary O’Brien was a seventeen year-old Irish emigrant traveling with her father and younger brother to Boston in steerage, the cheapest possible accommodations on a passenger ship. Ms. O’Brien was poor, unsophisticated, and not very educated (she did not understand the meaning of the terms “quarantine” and “vaccinate” when she read them on the signs posted around the ship). The steerage steward told the 200 Irish women steerage passengers who were on deck that they had to go below into steerage, without telling them why. (At another point, the male Irish steerage passengers were told to go down into steerage and were “hosed down before they knew what was to be done.”) There was only one way out of the steerage area, a door at the top of a staircase. At the middle of the staircase was a landing occupied by the doctor and two steerage stewards. There was no other exit. The women were lined up in such a way that they could not leave until they had been examined. One of the steerage stewards stood in front of the door leading to the deck so that no one could leave without the surgeon’s order. Mary O’Brien, separated from her father for the first time, nervously avoided getting in line until all the other women had been examined by the doctor and passed through the door leading to the deck. She was left standing alone …in a dim narrow passageway, surrounded by three insistent men clothed in authority. She told the doctor that she had been vaccinated before. He retorted that she “must” be vaccinated. (Although the court’s opinion states that the doctor said that she “should” be vaccinated, Ms. O’Brien testified that he said she “must” be vaccinated.)
Jody Armour, Just Deserts: Narrative, Perspective, Choice, and Blame, 57 U. Pitt. L. Rev. 525, 532–33 (1996).
The steerage steward told the 200 women steerage passengers who were on deck that they had to go below into steerage, without telling them the reason. From the steerage area, there was only one door, which was at the top of a staircase. At the middle of the staircase was a landing where the doctor and two steerage stewards positioned themselves. There was no other way to leave steerage. The 200 women were lined up and told that they would not be allowed to leave until they had been examined. One of the steerage stewards stood at the door leading to the deck and let no one leave without the doctor’s order. … The women were lined up, and one by one, passed by the doctor. They were not asked if they wished to be examined. They were not told the purpose of the examination. Dr. Giffen examined each woman’s arm to see if there was a vaccination mark. Those with a mark were allowed to pass. Those without were vaccinated. As they left, the doctor instructed the steward to give each a card. Once the threatening and coercive nature of the situation is acknowledged, the doctor’s actions can be understood as part of the exercise of superior force to compel acquiescence. … She did not get in line, but stood to the side. When she was the only one left, except the two stewards, she went up to the doctor and told him that she had been vaccinated before. He did not inquire about the previous vaccination. How did she know she had received one? What did she know about it? On what part of her body was it administered? He did not examine her to see if there was a mark anyplace else on her body. He did not explain her choices if she had no mark. He did not discuss how a prior vaccination that left no mark would be treated by the public health authorities in Boston. He simply told her she had to be vaccinated.
Ann C. Shalleck, Feminist Legal Theory and the Reading of OBrien v. Cunard, 57 Mo. L. Rev. 371-372, 383 (1992).
Shalleck concludes from this additional set of facts that “[i]t was reasonable for her to voice no further objection. It was not reasonable for the doctor to conclude that she had given freely her consent.” We might wonder why the court would withhold such facts given that they were present in the record; we might reasonably wonder why the case continues to be used as an example of manifesting consent, based on a set of facts that offer a distorted, inaccurate reality. In Shalleck’s view, the silencing of Ms. O’Brien is consistent with social patterns: “Women’s experiences of vulnerability and danger have been an important part of their subordination. The law has been slow to acknowledge the circumstances that create threats to women.” Id.
O’Brien v. Cunard offers an object lesson in law’s power to set certain narratives that become all but impossible to disrupt and reframe. On facts similar to those the court depicts, the rule of the case would still be “good law” and can be cited as such. This is true even though the coercive nature of the vaccination can be discerned in the court’s telling: as an immigrant seeking entry, O’Brien would need to comply with the regulations in place in the United States. She didn’t have all that much freedom to choose otherwise unless she wanted to choose to return to Ireland. Perhaps our recent pandemic makes it clear that there may be times when the governmental mandate to act overcomes individual autonomy to a certain extent in certain contexts. In light of the more accurate facts offered in the accounts above, however, the case reminds us of the power courts possess to fix one version of a story and fit it to the legal rules their opinions clarify and justify. That judicial authority can disempower and silence, or it can empower and bear witness. As readers of these cases, we can learn to read them on many levels.
Note 3. Revisit the purposes of tort law. Is vaccination a special kind of activity that requires different rules or protections, either to fulfill tort law’s purposes or for social, epidemiological or political reasons?
Note 4.Distinguish implied license from consent: recall the kicking classmate hypothetical, above, which was drawn from Vosburg v. Putney. Vosburg (not assigned) provided dicta emphasizing that the conduct was wrongful in part because of the context in which the kick occurred: in class, not recess. Vosburg v. Putney, 50 N.W. 403 (Wisc.1891).
Had the parties been upon the play–grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play–grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful.
Had this same kick taken place out on the playground, in the rough-and-tumble of recess, for instance, the outcome might have been different. Participation in playground games and other activities in which contact with others is likely may give rise to an implied license. If someone throws a ball at you after you’ve said, “I don’t want to play,” you clearly haven’t agreed to participate, and throwing the ball at you might constitute a battery by the thrower. But if you agree to a game and begin to play it, you’ve agreed to at least some contact, within the expected bounds of the game. How should tort law define the outer limits of that contact? When are those limits exceeded? Anger or insolence made along with the contact? Cheating at the game? Are certain kinds of cheating worse than others, from the perspective of tort law’s aims? Does it matter if the context is amateur versus professional?
Note 5. Restatement (Second) of Torts § 892 A. Effect of Consent; Comment
(1) One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.
(2) To be effective, consent must be
(a) by one who has the capacity to consent or by a person empowered to consent for him, and
(b) to the particular conduct, or to substantially the same conduct.
(3) Conditional consent or consent restricted as to time, area or in other respects is effective only within the limits of the condition or restriction.
(4) If the actor exceeds the consent, it is not effective for the excess.
(5) Upon termination of consent its effectiveness is terminated, except as it may have become irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a privilege to continue to act.
(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.
(2) if words or conduct are reasonably understood by another to be intended as consent, they constitute “apparent consent” and are as effective as consent in fact.
Even when the person concerned does not in fact agree to the conduct of the other, his words or acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them. This is true when the words or acts or silence and inaction, would be understood by a reasonable person as intended to indicate consent and they are in fact so understood by the other. This conduct is not merely evidence that consent in fact exists, to be weighed against a denial. It is a manifestation of apparent consent, which justifies the other in acting on the assumption that consent is given and is as effective to prevent liability in tort as if there were consent in fact. On the other hand, if a reasonable person would not understand from the words or conduct that consent is given, the other is not justified in acting upon the assumption that consent is given even though he honestly so believes; and there is then no apparent consent.
Reading the Restatement (Second) of Torts § 892 A, above, can you identify the uses of both objective and subjective standards?
Check Your Understanding (2-6)
Question 1. Which of the following plaintiffs is most likely to meet the elements of battery?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Hypothetical: Pro-Football / Miami Dolphins v. Denver Broncos: The incident that gave rise to this lawsuit occurred near the end of the first half of the football game between the Miami Dolphins and the Denver Broncos at a time when the Denver team was leading by a score of 21 to 3. John Haden was playing a free safety position on the Broncos’ defensive team and Dan Park was playing fullback on the Dolphins’ offensive team. The Miami team attempted a forward pass play during which Dan Park ran into a corner of the north end zone as a prospective receiver. That took him into an area which was the defensive responsibility of Mr. Haden. The thrown pass was intercepted near the goal line by a Denver linebacker who then began to run the ball upfield. The interception reversed the offensive and defensive roles of the two teams. As a result of an attempt to block Dan Park in the end zone, John Haden fell to the ground. He then turned and, with one knee on the ground and the other leg extended, watched the play continue upfield. Acting out of anger and frustration, but without a specific intent to injure, Dan Park stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff’s head with sufficient force to cause both players to fall forward to the ground. Both players arose and, without comment, went to their respective teams along the sidelines. They both returned to play during the second half of the game. Because no official observed it, no foul was called on the disputed play and John Haden made no report of this incident to his coaches or to anyone else during the game. Mr. Haden experienced pain and soreness to the extent that he was unable to play golf as he had planned on the day after the game, he did not seek any medical attention and, although he continued to feel pain, he played on specialty team assignments for the Denver Broncos in games against the Chicago Bears and the San Francisco Forty-Niners on successive Sundays. The Denver Broncos then released Mr. Haden on waivers and he was not claimed by any other team. After losing his employment, Mr. Haden sought medical assistance, at which time it was discovered that he had a neck injury.
Has Park committed any torts for which Mr. Haden can recover? Why or why not?
Self-Defense
Different jurisdictions have developed diverse boundaries for the privileges associated with defending oneself against the threat of bodily injury, but all have some version of a defense that allows the defendant to use force for their own protection. Some may permit the use of deadly force, some permit only “proportional” or “reasonable” efforts, and others have rules that vary depending on whether one can retreat to one’s car or home, for instance. This is an area of tort law which intersects with criminal law; a self-defense claim may be brought either in response to a civil claim or in response to criminal prosecution or both.
Almost all jurisdictions have some means of distinguishing a responsive and necessary use of force from an antagonizing or escalating response. If the original aggressor has retreated, for instance, the person who wishes to benefit from self-defense cannot attack the person by stabbing them in the back or throwing a weapon in their direction; their perceived need for protection has been eliminated with the aggressor’s retreat. Similarly, plotting an elaborate later response in consequence of ongoing bullying does not count as self-defense; the law expects a victim of regular bullying to use other means of protection such as reporting to relevant authorities. Self-defense is thus a highly structured defense limited to imminent and reasonably perceived threats and actions that would cause the claimant physical harm. Once the existence of those can be proven, the person seeking to exercise the defense will be protected within the bounds of the rules in their jurisdiction.
McMurrey Corp. v. Yawn, Court of Civil Appeals of Texas, Texarkana (1940) (143 S.W.2d 664)
Addie Yawn, surviving wife, and the minor children of Girardus H. Yawn, appellees, instituted this suit against the McMurrey Corporation, the McMurrey Petroleum Corporation, the McMurrey Interests, the McMurrey Pipe Line Company, the McMurrey Refining Company, Marvin H. McMurrey, Jim McMurrey, and Lucille McMurrey, for damages occasioned by the alleged wrongful death of Girardus H. Yawn, hereinafter referred to as deceased. It was alleged that the McMurreys were partners, joint adventurers, or joint associates in the ownership and operation of certain oil properties located in Rusk County, among which was the oil lease known as the Pinkston lease, and that one Rudolph Loesewitz was employed by them to guard, supervise and manage said lease; that said Loesewitz as their agent and while acting within the scope or apparent scope of his authority as watchman, manager and operator of said lease, and not in his own self-defense, negligently and carelessly shot and killed deceased. In the alternative it was alleged that the killing of deceased was intentionally brought about by the conspiracy of the McMurreys acting by and through their agent, Loesewitz. All the McMurreys including the several companies answered denying partnership, and all except Jim McMurrey denied that Loesewitz was their employee or agent in any capacity. Jim McMurrey answered that after he purchased the Pinkston lease he employed Loesewitz to look after said lease “generally” and to flow the oil wells located thereon; that at the time Loesewitz killed deceased, he, Loesewitz, “was outside of his employment or the scope of his employment by this defendant; that said Rudolph Loesewitz, at the time of such killing, and immediately prior thereto, was acting in his own self-defense, for all of which this defendant is in no way liable for damages or any part of the damages sued for herein.”
The record reflects that deceased operated and managed the Pinkston lease before it was purchased by Jim McMurrey. Shortly after its purchase he was discharged, and Loesewitz was employed in his stead. While deceased was working on the Pinkston lease he lived in a house located thereon. This house was purchased either by Jim McMurrey or some one for him, and was being moved on the day deceased was killed. Deceased had removed from the lease before his death. Loesewitz also lived in a house located on the lease about 200 or 300 feet from the house formerly occupied by deceased. After deceased had been discharged by appellant and before his death, some of the oil wells located on this lease had on two occasions been turned on at night, causing the tanks to overflow. Loesewitz thought that deceased was the party who turned on the wells and he so informed Jim McMurrey. On the day of the killing Loesewitz was informed that deceased was on the lease near the house where he had formerly lived. On receiving this information Loesewitz took his shotgun, went to where deceased was, and after speaking a few words to him shot and killed him. Loesewitz testified that threats by deceased to take his life had been, on two occasions, communicated to him; one on the night before, and the other a few minutes before the killing. Loesewitz also testified that, at the time of the killing, deceased by acts committed evidenced an intention to carry said threats into execution and that he shot him in self-defense. It later developed, however, that deceased was unarmed. The jury verdict upon special issues and the judgment rendered thereon were for appellees and against defendants Jim McMurrey, M. H. McMurrey, and the McMurrey Corporation, jointly and severally, who prosecute this appeal. The other defendants were dismissed from the case.
This action was brought under Article 4671, Sec. 1, R.C.S., by the dependents of deceased for damages for his alleged wrongful killing by Loesewitz. The evidence is undisputed that the killing of deceased was intentional and not the result of negligence. Self-defense was relied on as a justification for said killing. The court below charged the jury as follows:
“You are charged that by the term ‘wrongful’ as used in Special Issue No. 1, means the use of a greater degree of force than was reasonable and necessary under the circumstances then existing.
“Now bearing in mind the foregoing definitions and instructions, you will answer *666 the following special issues, to-wit: Special Issue No. 1:
“Do you find from a preponderance of the evidence that the action of Rudolph Loesewitz in shooting and killing the deceased, Girardus H. Yawn, was wrongful? Answer Yes or No.”
Jury answer: “Yes.”
By proposition No. 9 appellants challenge the correctness of this definition when applied to the facts and circumstances surrounding the defense of self-defense as shown by the testimony in the record.
Appellants’ proposition is: “In a civil suit to recover damages for the alleged wrongful death of the deceased, where the defendant’s pleadings and evidence raise the issue that the deceased had made threats against the life of the defendant, which were communicated to the defendant, and that, by the demonstration made by the deceased, the defendant believed the deceased intended to carry out such threat, and, in defense of himself, he killed the deceased, it is error for the court to submit to the jury the bald question whether the action of the defendant in killing the deceased was wrongful, without instructing the jury upon the law of threats and self-defense and justifiable homicide. An instruction that the term ‘wrongful’, as used in the question, means the use of a greater degree of force than is reasonable and necessary under the circumstances then existing, is entirely inadequate, misleading, and gives to the jury the impression that the killing of the deceased was the exercise of a greater degree of force than was necessary, and was, therefore, wrongful.”
If Loesewitz was acting in his own self-defense at the time he shot and killed deceased, the killing in law would not be wrongful but justifiable. This is true in a civil action as well as in a criminal action. It was said in the early case of March v. Walker, 48 Tex. 372: “The law of self-defense is the same as in a criminal prosecution, with the exception of the rule of evidence which, in a criminal cause, gives the defendant the benefit of a reasonable doubt. That doubt, however, is as to the facts,—not as to the extent of the right. The stage of the difficulty at which self-defense ceases is just the same, whether the question be investigated civilly or criminally.”
[***] Loesewitz testified that he thought deceased on two occasions at night had turned on the oil wells located on said lease, causing the oil tanks to overflow; that he had deceased make tracks for comparison with “boot tracks” found near the oil wells; that he reported to the sheriff’s office of Rusk County and to the officers of the Railroad Commission that said oil wells had been turned on. Loesewitz testified further that he went to see the district attorney of Rusk County for the purpose of having deceased placed under a peace bond to avoid having trouble with him. On the night before deceased was killed Loesewitz testified that his (Loesewitz’s) wife told him that deceased “was coming on the lease and get me”; that about fifteen minutes before the killing “T.M. Hill came up and told me that Buck Yawn (deceased) was down on the lease and had a gun and was going to—he said, ‘going to kill you the first time he saw you.’”
Loesewitz testified further:
“Q. When Hill told you that, what did you do?
A. I got me a gun and went down there to get him to carry him to town.
“Q. Well, how near did you get to him before you saw him?
A. I judge between 20 and 30 steps.
“Q. Did you say steps?
A. I said steps but I mean feet, between 20 and 30 feet.
“Q. What did you say to him, if anything?
A. I said, ‘All right, Buck come and go with me, you are going to town.’
“Q. What did he do, if anything?
A. He made about two steps and went left hand to his waist–
“Q. What did you say or do, if anything?
A. I did not say anything or do anything, I just raised my gun and shot.
“Q. Then what did you do?
A. I turned around and went to the Lispen Gasoline plant and called the sheriff’s department and told them to call Jim McMurrey, told them about what had happened.
*667 “Q. Who was the first person you saw after you had shot Buck Yawn?
A. My wife—I believe it was my wife.
“Q. Do you know Mr. Larner?
A. Yes, I know him.
“Q. Did you see him first or your wife?
A. I can not say for sure whether it was him or my wife.
“Q. What statement, if any, did you make to Mr. Larner about Buck?
A. The same statement I made to everyone, the only statement I made was to go and watch him and don’t let them take that gun off of him.
“Q. How long was that after you had fired the shot that had killed Buck Yawn?
A. About as long as it would take you to walk around—say 100 feet.
“Q. What was Buck Yawn doing, just prior to the time that you fired the shot that killed him?
A. He was walking toward me.
“Q. Was he doing anything else?
A. Well, when I first seen him he had his back towards me and was walking off.
“Q. When he started towards you what movement did he make with his hands?
A. He went left-handed for his shirt, like he was going in his shirt after something.
“Q. What did you think he was going to do?
A. I thought my time had come; I thought he would probably kill me.
“Q. What did you think he was going to kill you with?
A. I thought he had a gun in his belt.
“Q. Did you know the reputation that Buck Yawn bore in that neighborhood, and in that vicinity, for being a law-abiding man?
A. I had heard about him toting a pistol and shooting out lights out of those honkey-tonks up and down the highway.
“Q. When you put the Ford pick-up in the Rushing garage and walked home, who was it that you were afraid of that night, who was it you were afraid would come, or might?
A. Well my wife told me it was Buck Yawn.
“Q. From what your wife had told you about what was going on up at the store, they were going to get you that night, you left it there because you were afraid that Buck Yawn and whoever might be with him would come?
A. Yes.
“Q. That was Friday night before the killing on Saturday?
A. Yes, sir. ”
This testimony, in our opinion, clearly raises the issue of communicated threats and self-defense, and the court’s definition of the term “wrongful” as applied to the facts in this case is incorrect. If at the time of the killing the deceased by his acts and conduct reasonably induced Loesewitz to believe that deceased was about to attack him with a deadly weapon which would probably cause Loesewitz’ death or some serious bodily injury; or if by the acts of the deceased it reasonably appeared to Loesewitz at the time, viewed from his standpoint alone, that deceased was then about to attack him with a deadly weapon which would probably cause Loesewitz’ death or some serious bodily injury, and if same was reasonably calculated to create in the mind of Loesewitz, and did create in his mind, a reasonable expectation of fear of death or some serious bodily injury, and that Loesewitz then and there moved and actuated by such reasonable expectation of fear of death or serious bodily injury, shot and killed deceased, then under such circumstances the killing would be in his lawful self-defense and would not be “wrongful.”
Where a person accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threats so made. If deceased did make threats against the life of Loesewitz and at the time of the killing deceased made such an act or demonstration as reasonably to produce in the mind of Loesewitz, viewed from his standpoint at the time, a belief that deceased then and there intended to execute such threats and to take the life of Loesewitz, or to do him some serious bodily harm, then the killing would not be “wrongful.” It is not essential to the right of self-defense that real danger should exist. If from Loesewitz’ standpoint, taking into consideration all the facts and circumstances surrounding the parties, it reasonably appeared to him that he was in danger of death or serious bodily injury, under the law he had the right to defend against such apparent danger to the same extent as if the danger were real, and if he shot and killed the deceased under such circumstances the killing would not be “wrongful.” *668 [c]. This omission from the definition of the term “wrongful” in the court’s charge preceding Special Issue No. 1 is vital, and calls for a reversal of this case. [cc] The converse of the above is also true; that is to say, if Loesewitz used a greater degree of force than was reasonable and necessary under the circumstances existing at the time of the killing and was not acting in his own necessary self-defense as explained above, the killing would be “wrongful.”
[***] The judgment is reversed, and the cause remanded.
Note 1. In what way is the jury instruction the lower court gives in McMurrey Corp. v. Yawn erroneous? Do you think that the omission of a single word is likely to make a difference in a jury verdict concerning the lawfulness of a killing? Why or why not?
Note 2. How does the court define wrongfulness? Is it through use of a rule or standard? Whose perspective of the circumstances does the court adopt, or through what standard does the court consider self-defense?
Note 3. Defense of Others. A similar privilege to defend others from harmful or offensive contact exists so long as the intervention is necessary for the protection of the third person. Usually the circumstances must be the same as those necessary to justify self-defense; the idea is that the defender steps into the shoes of the person they are defending and thus the same inquiries will be asked, only they will apply to the defender, not the victim. The proportionality principle is usually the same (although in some jurisdictions the scope of the privilege to defend others is narrower than the scope of self-defense).
Defense of Property
R estatement (Second) of Torts § 77 Defense of Possession by Force Not Threatening Death or Serious Bodily Harm
An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land or chattels, if
(a) the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and
(b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
(c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.
Katko v. Briney, Supreme Court of Iowa (1971) (183 N.W.2d 657)
The primary issue presented here is whether an owner may protect personal property in an unoccupied boarded-up farmhouse against trespassers and thieves by a spring gun capable of inflicting death or serious injury.
We are not here concerned with a man’s right to protect his home and members of his family. Defendants’ home was several miles from the scene of the incident to which we refer infra. *658 Plaintiff’s action is for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farmhouse which had been uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had broken and entered the house to find and steal old bottles and dated fruit jars which they considered antiques.
At defendants’ request plaintiff’s action was tried to a jury consisting of residents of the community where defendants’ property was located. The jury returned a verdict for plaintiff and against defendants for \$20,000 actual and \$10,000 punitive damages. After careful consideration of defendants’ motions for judgment notwithstanding the verdict and for new trial, the experienced and capable trial judge overruled them and entered judgment on the verdict. Thus we have this appeal by defendants. [***]
Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents’ farm land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where her grandparents and parents had lived. No one occupied the house thereafter. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated. For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and ‘messing up of the property in general’. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved.
Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions. They had posted ‘no trespass’ signs on the land several years before 1967. The nearest one was 35 feet from the house. On June 11, 1967 defendants set ‘a shotgun trap’ in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs. Briney’s suggestion it was lowered to hit the legs. He admitted he did so ‘because I was mad and tired of being tormented’ but ‘he did not intend to injure anyone’. He gave to explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the bedroom window. The spring gun could not be seen from the outside. No warning of its presence was posted.
Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven miles from the old house. He had observed it for several years while hunting in the area and considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date about 9:30 p.m. they made a second trip to the Briney property. They entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough’s *659 assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.
Plaintiff’s doctor testified he seriously considered amputation but eventually the healing process was successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He was required to keep the injured leg in a cast for approximately a year and wear a special brace for another year. He continued to suffer pain during this period. There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.
The record discloses plaintiff to trial time had incurred \$710 medical expense, \$2056.85 for hospital service, \$61.80 for orthopedic service and \$750 as loss of earnings. In addition thereto the trial court submitted to the jury the question of damages for pain and suffering and for future disability.
Plaintiff testified he knew he had no right to break and enter the house with intent to steal bottles and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime of property of less than \$20 value from a private building. He stated he had been fined \$50 and costs and paroled during good behavior from a 60-day jail sentence. Other than minor traffic charges this was plaintiff’s first brush with the law. On this civil case appeal it is not our prerogative to review the disposition made of the criminal charge against him.
The main thrust of defendants’ defense in the trial court and on this appeal is that ‘the law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief’. [***]
In the statement of issues the trial court stated plaintiff and his companion committed a felony when they broke and entered defendants’ house.
• In instruction 2 the court referred to the early case history of the use of spring guns and stated under the law their use was prohibited except to prevent the commission of felonies of violence and where human life is in danger. The instruction included a statement breaking and entering is not a felony of violence.
• Instruction 5 stated: ‘You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.’
• Instruction 6 stated: ‘An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices which will likely take life or inflict great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.’
• Instruction 7, to which defendants made no objection or exception, stated: ‘To entitle the plaintiff to recover for compensatory damages, the burden of proof is upon him to establish by a preponderance of the evidence each and all of the following propositions:
‘1. That defendants erected a shotgun trap in a vacant house on land owned by defendant, *660 Bertha L. Briney, on or about June 11, 1967, which fact was known only by them, to protect household goods from trespassers and thieves.
‘2. That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property.
‘3. That plaintiff was injured and damaged and the amount thereof.
‘4. That plaintiff’s injuries and damages resulted directly from the discharge of the shotgun trap which was set and used by defendants.’
The overwhelming weight of authority, both textbook and case law, supports the trial court’s statement of the applicable principles of law. [***]
Restatement of Torts, section 85, page 180, states: ‘The value of human life and limb, not only to the individual concerned but also to society, so outweights [sic] the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in s 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. * * * A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present.’
In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: ‘The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, buy only that amount which is reasonably necessary to effect the repulse. Moreover if the trespass threatens harm to property only—even a theft of property—the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means. If he does, he will be liable even to a thief who is injured by such device.’
[Omitting review of additional cases holding property owners liable for harms committed to entrants on land through use of excessive force omitted]
In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made unlawful by statute. [c]
*662 The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and supported by the authorities cited and quoted supra. There is no merit in defendants’ objections and exceptions thereto. Defendants’ various motions based on the same reasons stated in exceptions to instructions were properly overruled.
Plaintiff’s claim and the jury’s allowance of punitive damages, under the trial court’s instructions relating thereto, were not at any time or in any manner challenged by defendants in the trial court as not allowable. We therefore are not presented with the problem of whether the \$10,000 award should be allowed to stand. [***] Study and careful consideration of defendants’ contentions on appeal reveal no reversible error. Affirmed.
LARSON, Justice.
I respectfully dissent, first, because the majority wrongfully assumes that by installing a spring gun in the bedroom of their unoccupied house the defendants intended to shoot any intruder who attempted to enter the room. Under the record presented here, that was a fact question. Unless it is held that there property owners are liable for any injury to an intruder from such a device regardless of the intent with which it is installed, liability under these pleadings must rest upon two definite issues of fact, i.e., did the defendants intend to shoot the invader, and if so, did they employ unnecessary and unreasonable force against him?
It is my feeling that the majority oversimplifies the impact of this case on the law, not only in this but other jurisdictions, *663 and that it has not thought through all the ramifications of this holding. There being no statutory provisions governing the right of an owner to defend his property by the use of a spring gun or other like device, or of a criminal invader to recover punitive damages when injured by such an instrumentality while breaking into the building of another, our interest and attention are directed to what should be the court determination of public policy in these matters. On both issues we are faced with a case of first impression. We should accept the task and clearly establish the law in this jurisdiction hereafter. I would hold there is no absolute liability for injury to a criminal intruder by setting up such a device on his property, and unless done with an intent to kill or seriously injure the intruder, I would absolve the owner from liability other than for negligence. I would also hold the court had no jurisdiction to allow punitive damages when the intruder was engaged in a serious criminal offense such as breaking and entering with intent to steal.
It appears to me that the learned trial court was and the majority is now confused as to the basis of liability under the circumstances revealed. Certainly, the trial court’s instructions did nothing to clarify the law in this jurisdiction for the jury. Timely objections to Instructions Nos. 2, 5 and 6 were made by the defendants, and thereafter the court should have been aware of the questions of liability left unresolved, i.e., whether in this jurisdiction we by judicial declaration bar the use in an unoccupied building of spring guns or other devices capable of inflicting serious injury or death on an intruder regardless of the intent with which they are installed, or whether such an intent is a vital element which must be proven in order to establish liability for an injury inflicted upon a criminal invader.
Although the court told the jury the plaintiff had the burden to prove ‘That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property’, it utterly failed to tell the jury it could find the installation was not made with the intent or purpose of striking or injuring the plaintiff. There was considerable evidence to that effect. As I shall point out, both defendants stated the installation was made for the purpose of scaring or frightening away any intruder, not to seriously injure him. It may be that the evidence would support a finding of an intent to injure the intruder, but obviously that important issue was never adequately or clearly submitted to the jury.
Unless, then, we hold for the first time that liability for death or injury in such cases is absolute, the matter should be remanded for a jury determination of defendant’s intent in installing the device under instructions usually given to a jury on the issue of intent. In the case at bar the plaintiff was guilty of serious criminal conduct, which event gave rise to his claim against defendants. Even so, he may be eligible for an award of compensatory damages which so far as the law is concerned redresses him and places him in the position he was prior to sustaining the injury. The windfall he would receive in the form of punitive damages is bothersome to the principle of damages, because it is a response to the conduct of the defendants rather than any reaction to the loss suffered by plaintiff or any measurement of his worthiness for the award.
When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct, the result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the criminal would be permitted by operation of law to profit from his own crime. [***] We cannot in good conscience ignore the conduct of the plaintiff. He does not come into court with clean hands, and attempts to make a claim to punitive damages in part on his own criminal conduct. In such circumstances, to enrich him would be unjust, and compensatory damages in such a case itself would be a sufficient deterrent to the defendant or others who might intend to set such a device. [***]
The admonitory function of the tort law is adequately served where the compensatory damages claimed are high and the granted award itself may act as a severe punishment and a deterrence. In such a case as we have here there is no need to hold out the prospect of punitive damages as an incentive to sue and rectify a minor physical damage such as a redress for lost dignity. Certainly this is not a case where defendants might profit in excess of the amount of reparation they may have to pay. In a case of this kind there is no overwhelming social purpose to be achieved by punishing defendants beyond the compensatory sum claimed for damages.
Note 1. How does what you have learned about the rules of defense stack up against the use of mechanized instruments of harm such as spring guns? Does it matter if the spring guns are likely to be lethal or merely to cause danger? Can you think of any conditions in which traps or mechanisms that intentionally cause physical harm might be lawful under tort law’s various defense principles?
Note 2. Review the jury instructions cited in Katko. If you were a juror with only lay experience and no legal knowledge, do you think they would be straightforward to apply? What if anything do you think would help improve them?
Note 3. The dissent takes a strongly critical view of Katko’s status on the property: he was a trespasser (not doing so for the first time), and a burglar. To what extent should the interaction of the criminal and civil systems’ purposes be weighed against each other in determinations of both liability and damages in tort law? Does the majority get this right or are you more persuaded by the dissent? Note that this edited version mostly omits discussion of the punitive damages Katko had been granted and which were not properly appealed, and thus were not reversed. These “extra” damages were part of what drove the dissenting opinion. The Brineys did not have the resources to pay the court-ordered damages and had to sell 80 of their 120 acres to pay the judgment. The decision generated public rebuke and various states introduced laws strengthening self-defense provisions. These “Briney Bills” were not always passed and in at least one case, one was passed but struck down as unconstitutional.
Surocco v. Geary, Supreme Court of California (1853) (3 Cal. 69)
This was an action, commenced in the court below, to recover damages for blowing up and destroying the plaintiffs’ house and property, during the fire of the 24th of December, 1849.
Geary, at that time Alcalde of San Francisco, justified, on the ground that he had the authority, by virtue of his office, to destroy said building, and also that it had been blown up by him to stop the progress of the conflagration then raging.
It was in proof, that the fire passed over and burned beyond the building of the plaintiffs’, and that at the time said building was destroyed, they were engaged in removing their property, and could, had they not been prevented, have succeeded in removing more, if not all of their goods. The cause was tried by the court sitting as a jury, and a verdict rendered for the plaintiffs, from which the defendant prosecutes this appeal under the Practice Act of 1850.
The only question for our consideration is, whether the person who tears down or destroys the house of another, in good faith, and under apparent necessity, during the time of a conflagration, for the purpose of saving the buildings adjacent, and stopping its progress, can be held personally liable in an action by the owner of the property destroyed.
*73 This point has been so well settled in the courts of New York and New Jersey, that a reference to those authorities is all that is necessary to determine the present case. The right to destroy property, to prevent the spread of a conflagration, has been traced to the highest law of necessity, and the natural rights of man, independent of society or civil government. “It is referred by moralists and jurists to the same great principle which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard goods in a tempest, for the safety of a vessel; with the trespassing upon the lands of another, to escape death by an enemy. It rests upon the maxim, Necessitas inducit privilegium quod jura privata.”
The common law adopts the principles of the natural law, and places the justification of an act otherwise tortious precisely on the same ground of necessity. [c] This principle has been familiarly recognized by the books from the time of the saltpetre case, and the instances of tearing down houses to prevent a conflagration, or to raise bulwarks for the defence of a city, are made use of as illustrations, rather than as abstract cases, in which its exercise is permitted. At such times, the individual rights of property give way to the higher laws of impending necessity.
A house on fire, or those in its immediate vicinity, which serve to communicate the flames, becomes a nuisance, which it is lawful to abate, and the private rights of the individual yield to the considerations of general convenience, and the interests of society. Were it otherwise, one stubborn person might involve a whole city in ruin, by refusing to allow the destruction of a building which would cut off the flames and check the progress of the fire, and that, too, when it was perfectly evident that his building must be consumed.
The respondent has invoked the aid of the constitutional provision which prohibits the taking of private property for public use, without just compensation being made therefor. This is not “a taking of private property for public use,” within the meaning of the Constitution. The right of taking individual property for public purposes *74 belongs to the State, by virtue of her right of eminent domain, and is said to be justified on the ground of state necessity; but this is not a taking or a destruction for a public purpose, but a destruction for the benefit of the individual or the city, but not properly of the State. The counsel for the respondent has asked, who is to judge of the necessity of the destruction of property? This must, in some instances, be a difficult matter to determine.
The necessity of blowing up a house may not exist, or be as apparent to the owner, whose judgment is clouded by interest, and the hope of saving his property, as to others. In all such cases the conduct of the individual must be regulated by his own judgment as to the exigencies of the case. If a building should be torn down without apparent or actual necessity, the parties concerned would undoubtedly be liable in an action of trespass. But in every case the necessity must be clearly shown. It is true, many cases of hardship may grow out of this rule, and property may often in such cases be destroyed, without necessity, by irresponsible persons, but this difficulty would not be obviated by making the parties responsible in every case, whether the necessity existed or not.
The legislature of the State possess[es] the power to regulate this subject by providing the manner in which buildings may be destroyed, and the mode in which compensation shall be made; and it is to be hoped that something will be done to obviate the difficulty, and prevent the happening of such events as those supposed by the respondent’s counsel. In the absence of any legislation on the subject, we are compelled to fall back upon the rules of the common law.
The evidence in this case clearly establishes the fact, that the blowing up of the house was necessary, as it would have been consumed had it been left standing. The plaintiffs cannot recover for the value of the goods which they might have saved; they were as much subject to the necessities of the occasion as the house in which they were situate; and if in such cases a party was held liable, it would too frequently happen, that the delay caused by the removal of the goods would render the destruction of the house useless.
*75 The court below clearly erred as to the law applicable to the facts of this case. The testimony will not warrant a verdict against the defendant. Judgment reversed.
Note 1. Can you think of other doctrines you have learned that might be relevant here, or other areas in which you have encountered limitations on tort liability that are traceable to concerns like those in Surocco? What justifications, and what sorts of tradeoffs, do situations like this one involve, for tort law? That is, in circumstances in which dangers are present, hazards are developing rapidly or changing, and the parties possess only imperfect information, the risks of any decision are high yet proceeding with the regular amounts of caution may impose unacceptable delays and costs. How should tort law balance these competing concerns?
Note 2. Note that this case predates The California Tort Claims Act (1963) in which the state government waived some sovereign immunity, though not all; municipal entities would likely have been unreachable at this time other than by suing the individuals involved, as in this case. Nonetheless, in the way that the Surocco court applies the substantive law, it effectively carves a sphere of discretionary decisionmaking for the Alcalde that shares common ground with the discretionary function exception you have learned about above.
Note 3. Constitutional questions. What concerns might you have regarding the seizure of private property by government officials? What sort of proof should be required of governments asserting this defense? The “Takings Clause” under the Fifth Amendment of the United States Constitution prevents the federal government from taking “private property” even “for public use, without just compensation.” The Fourteenth Amendment extends the Fifth Amendment to state governments. Ordinarily, then if the government uses or destroys private property, even for public use, it must pay “just compensation.” How well do you think tort law’s “public necessity” defense squares with this constitutional protection?
Vincent v. Lake Erie Transp. Co., Supreme Court of Minnesota. (1910) (109 Minn. 456)
The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiff’s dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about 10 o’clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at 50 miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the 29th, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly *458 being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of \$500.
We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift a way from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.
It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.
The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages *459 which the plaintiffs were entitled to recover, and no complaint is made upon that score.
The situation was one in which the ordinary rules regulating properly rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs’ dock, the plaintiffs could not have recovered. Again, if which attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted.
In Depue v. Flatau, 100 Minn. 299, this court held that where the plaintiff, while lawfully in the defendants’ house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?
In Ploof v. Putnam, 71 Atl. 188, the Supreme Court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.
*460 Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.
Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.
This is not a case where life or property was menaced by any object or thing belonging to the plaintiff, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.
Order affirmed.
LEWIS, J.
I dissent. It was assumed on the trial before the lower court that appellant’s liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondent’s dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.
*461 In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?
I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor at the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.
Note 1. Does the private necessity doctrine, expounded upon here in Vincent, seem to you to be consistent with, or to diverge from, the principle that there is no duty to rescue at common law? What principles does it reflect, and what concerns does it seem to try to balance?
Note 2. Does private necessity create a categorical defense (like an immunity?) or a fact-based defense (like a privilege or other form of circumstance-specific defense)? Why might this matter?
Note 3.Ideological Underpinnings of the Necessity Doctrines. Consider the moral and philosophical values expressed in the public and private necessity doctrines as defenses to trespass. These defenses take a position on the value and objective defensibility of various actions that may seem subjectively necessary to the actor at the time of the unauthorized use of land or property. In a thoughtful article exploring different conceptions of property against a backdrop of cultures, political institutions and intellectual theories, Professor Monica E. Eppinger notes the constructedness of the law’s understanding of private and public uses of space. She provides a hypothetical as a means of exploring the law’s unstated commitments to certain values over others:
Four adults, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers them and brings legal action against them. Monica E. Eppinger, The Challenge of the Commons: Beyond Trespass and Necessity, 66 Am. J. Comp. L. 1, 17 (2018) (citations omitted)
Eppinger surveys relevant doctrines in tort and property law and explores the “necessity” defenses:
If the use were in pursuit of a public good, for example using vacant premises to provide volunteer healthcare to irregular migrants, … the defense the defendant would assert is public rather than private necessity. …If the defendant trespassed out of public necessity, unlike private necessity, she owes no compensation even if the property was harmed. The public necessity defense would only apply if the defendant could demonstrate she commandeered the building to avert an imminent threat to the public—for example, preventing or alleviating a deadly epidemic. … A situation that gives rise to necessity is imagined as an “emergency” and the privilege must be exercised “in a reasonable time and in a reasonable manner.” A court during the Great Depression affirmed convictions of several in a crowd convicted of stealing groceries, over defendants’ objections that they were denied the right to present the defense of “economic necessity.” Moreover, entry into a dwelling without permission is treated with a higher degree of disfavor than entry into fields, yards, or other forms of real property. Even if a privilege of private necessity is recognized, the trespasser is liable for damage to the property. Id. at 18.
Eppinger concludes that the legal manager would be successful in ousting the families on the basis of trespass. She observes:
Until homelessness is considered a matter in which parties hold a “common interest,” it is likely that the law will excuse trespass to tear down a home to save other buildings from fire as a matter of public necessity, but not excuse entry into unused dwelling spaces to save individuals from homelessness…. Such is the strength of the ideology of private property, and the dominance of the right to exclude, that in the United States, people priced out of housing markets and into homelessness do not routinely shelter in vacant buildings (as envisioned in the hypothetical), as they presume title holders to be armed with legal doctrines to facilitate evictions. Id. at 23.
Is homelessness exacerbated by entrenched default positions in the private law of tort and property? Are Professor Eppinger’s concerns something tort law should consider as its common law continues to develop? If so, are courts the appropriate source of change on the issue, or should changes occur at the legislative or administrative levels? If no changes are called for, what are the strongest justifications for retaining the status quo?
Check Your Understanding (2-7)
Question 1. True or False: Private necessity requires a higher standard of proof by the defendant than public necessity, because the private reputational and property interests of the plaintiff mandate higher protections.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. Editor’s note: Confusingly, the court here makes an older use of the term “assault” to describe the action of battery as we now understand it. The strike-through and the addition of “a battery” are edits to clarify the case; continue to substitute “battery” where the case refers to “assault.” | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/02%3A_Intentional_Torts/2.07%3A_Defenses_Against_the_Intentional_Torts.txt |
Overview of Duty
Duty, the first of the four elements required in a negligence action, has a special character.
First, it is the only element of negligence decided by the court as a question of law, and thus operates as a gate-keeping mechanism to help define the contours of tort law and limit the scope of potential liability. To the extent that the system defines what tort law protects and against what, the duty inquiry has developed such that defendants do–or do not—owe a duty of care with respect to particular classes of potential plaintiffs, for particular types of losses, or on particular classes of fact patterns (since accidents occur and do fall, generally, into recognizable types). Judges decide the question of duty partly because they are thought to be better at deciding categorical kinds of questions. Judges can see recurring patterns because over the course of a career on the bench, a judge will decide and read many cases. Most jurors are likely to serve as factfinders only a few times in their lives, if ever. Jury expertise is thought to consist of everyday experience applicable to the particular facts of the single case before them. Yet judges have the capacity to “see the big picture” and categorize similar fact patterns together in light of prior similar scenarios on which the court (or other courts) have ruled. Judges also have legal training that helps them to align the policy goals of tort law with the kinds of cases that ought to be decided at this earliest point in the negligence analysis.
Second, there has been a major evolution in how duty has been conceived, and it’s relevant to your understanding of the cases courts are deciding in the present era. The standard for duty in most cases today is whether it was foreseeable that the defendant’sactions would harm the plaintiff. Under this modern view, if the injury was foreseeable, then the defendant owed a plaintiff a duty unless some special exception or limitation exists. However, “foreseeable” is a term just about as unhelpful as “reasonable” in the sense that its meaning is malleable. Nonetheless, that’s the general contemporary approach. Sometimes it is attributed to a late 19th century case, Heaven v. Pender (1883) 11 Q.B.D. 503, 509, which stated:
[W]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.
The Restatement now reflects this view: “Ordinarily, a person engaging in conduct that creates risks to others has a duty to exercise reasonable care to avoid causing them physical harm.” Restatement (Third) of Torts § 6, cmt. b (2010)
However, historically at common law, it was virtually the opposite of this generalized view of duty. There was rarely an independent duty for a person (P1) to act or to compensate someone (P2) for the losses P2 had suffered, unless P1 stood in a particular relationship with P2. P1 was generally not liable for “nonfeasance,” which is a formal term often meaning that a person chose to do nothing or somehow failed to act. If P1 had contracted to help or provide services for P2 and P1 didn’t perform on that contract, P2’s remedy was in contract law. If in providing services, P1 committed misconduct through unreasonable behavior (“misfeasance”) and caused harm to P2, P1 had breached their duty of care and P2 could recover in tort law. Under that last scenario, there wasn’t a breach of contract since P1 had technically carried out their promise to P2 under the contract even if in doing so their misconduct created new problems. Accordingly, tort law provided an alternate means of redress for a problem that wasn’t breach of contract but rather some other sort of loss or injury. The duty in tort law arose because of the contract but the corresponding legal obligation to compensate for the injury caused by the careless fulfillment of the contract sounded in tort law. Consequently, this may have reinforced the early view that without a contract, recovery in tort was nearly impossible without some alternative source of legal obligation flowing between the parties. Indeed, that was one way courts kept the early scope of negligence law narrow.
The concept of “privity,” a contract-like relationship, arose to define a legal relationship broader than a contract, and courts allowed tort recovery for those who “stood in privity” with one another. For instance, a customer who bought goods or chattels from a merchant stood in privity with them (despite the lack of a formal contract) but their non-purchasing spouse did not. This caused some case outcomes that seemed puzzling and unfair; why shouldn’t the non-purchasing spouse be able to recover in tort law when the product caused them injury and they were very much a foreseeable user of the product? Over time, the concept of privity continued to expand in piecemeal and the restrictions on recovery relaxed until the requirement of privity, too, yielded, as you will most likely explore further if your course covers product liability law (Module 5).
In cases where there was no contract or privity, courts increasingly looked for a “special relationship” between parties. Under this approach, while strangers did not owe each other a duty to assist each other, those who stood in a special relationship even without a contract or privity—such as family members, close friends or members of a group engaged in an activity together—were commonly found to have a duty arising out of that special relationship. In addition, when a person voluntarily undertook a rescue of some kind (or simply stepped in to help), their actions created a duty to follow through with what they had offered, behaving reasonably under the circumstances. These means of creating a duty—through special relationships or voluntary undertakings—remain important in the legal system today.
The early 20th century witnessed the expansion of duty to a sphere of foreseeable people who might suffer harms from one’s tortious conduct and who thus deserved compensation regardless of contract, privity or relationship. Courts routinely articulated the scope of the duty to behave reasonably in language that left no room for doubt: “[E]very person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and … such duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.” Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 86 (1964) These changes in the law largely originated in the domain of product liability law where the expansion of duty paved the way for the broader default rule that has come to be the majority rule: everybody owes a duty of care to refrain from conduct that foreseeably harms others.
In the contemporary era, however, stubborn exceptions to the traditional rule of no duty remain, creating a diversity of rules with regard to duty. In a subset of cases there remains no duty while in other areas (such as premises liability and the duty to compensate for purely emotional losses) that old rule has been eroded over time to a patchwork of rules that create duties to take certain steps under certain circumstances. These have sometimes been classified as “general” versus “affirmative” duties, intended to track the categories of “misfeasance” (which there was a general duty to avoid) and “nonfeasance” (which gave rise to no duty except in cases where a so-called affirmative duty arose because of a special relationship or voluntary undertaking as noted above, or under other exceptions).
An Updated Way to Categorize Types of Duty
Although this has been the way law students were traditionally instructed on the law of duty, these terms (misfeasance/nonfeasance; general/affirmative duty) are not that useful. Students and professors alike have long found them very difficult to define and apply. Consider that “misfeasance” could include both negligently fixing your car’s brakes by going to an unlicensed irresponsible mechanic or failing to take action with respect to your service light’s warning that your brakes might fail soon. Yet failing to take action sounds more like “nonfeasance” which in theory gives rise to no duty. There are formalistic ways to arrive at the conclusion that in fact there is a duty to get your brakes fixed—cars are dangerous vehicles and some states find there is a “non-delegable duty” to make sure your vehicle is safe for driving, for instance. But that general problem of action versus inaction remains a thorny one and this division has puzzled theorists.
Beyond that, the terms are outdated and hearken back to an era when landlords owed their tenants no duty and even landowners’ duties to entrants were more tightly circumscribed. Recently, two preeminent torts scholars have called for a recognition that the “exceptions” formerly understood in terms of “affirmative duties” can be understood either as articulations of the general duty or as subsets of now well-settled law in which the default is no longer “no duty.”
These distinctions are problematic in both descriptive and normative respects. On a descriptive level, many cases of what tort law calls nonfeasance are difficult, if not impossible, to distinguish from misfeasance. Similarly, sometimes even misfeasance does not look like misfeasance; there are instances of what tort law calls misfeasance that are hard to distinguish from nonfeasance. On a normative level, meanwhile, the distinctions’ significance can be difficult to discern. Even in paradigm cases where the descriptive distinction between misfeasance and nonfeasance is clear—such as the case of the driver who hits the pedestrian versus the bystander who fails to rescue—the normative distinction can be elusive. Kenneth S. Abraham and Leslie Kendrick, There’sNo Such Thing As Affirmative Duty, 104 Iowa L. Rev. 1649 (2019).
The challenge in offering an updated, revisionist approach to duty lies in the fact that the other resources students may consult (hornbooks, commercial outlines, bar preparation materials) and the older cases they read will likely contain some references to these outdated terms. The virtue in revisionism, however, lies in offering the opportunity for greater conceptual clarity and what is now a more accurate view of the case law. To that end, this textbook will refer to the older categories that have been used to define classes of duties and their “exceptions” (such as voluntary undertakings and special relationships; those are still “good law”). However, I dispense with the language of “affirmative duty” and, following Abraham and Kendrick, try to situate the duty cases in the legal contexts in which these contemporary rules have developed. I will not emphasize the “misfeasance” versus “nonfeasance” distinction any further as I do not believe it is productive and years of conversations with students have persuaded me that they do not find it helpful either.
Duties By Type of Actor and Type of Harm
Special duties historically have applied to certain classes of actors, including common carriers (as you learned in Module 1 in the discussion preceding Gulf v. Luther), innkeepers and landowners. It was expedient for courts to determine the legal obligations of whole classes of entities in this way since the rules affected so many people. Creating predictable patterns of potential liability allowed businesses to plan for or prevent it and to conduct their operations with some amount of awareness of their likely legal risk.
In my view, there is also a hybrid nature to the way duty is determined in casesassociated with property. Ordinarily, the question of duty is distinct from the conduct that the duty requires. For instance, to say that a common carrier has a duty (or even a heightened duty in some jurisdictions) does not specify what that requires them to do. So-called “premises liability,” which flows from the duties one has in association with maintaining property for those who enter it is unusual in that the duty may be accompanied by particular actions the duty requires (such as a duty to warn of a hidden danger or a duty to fence off a dangerous feature). That premises liability diverges from the general framework makes determining the duty of landowners unusually complex at times. Students (and courts!) find the distinctions between duty and breach of duty understandably confusing so anticipating the complexity and confusion somewhat can be helpful. With respect to landowners (as well as possessors and occupiers of land), there is a significant jurisdictional divergence you will want to keep straight so you learn and differentiate both the majority and minority approaches.
A final way that courts have modulated the scope of tort law and used duty as a gatekeeping measure is through the kinds of losses for which tort law permits recovery. Courts have consistently held that parties may not recover for purely economic losses and this has been framed in terms of duty: there is no duty to prevent purely economic losses to another. For most of the history of U.S. tort law, courts were reluctant to allow parties to recover for purely emotional losses, as well. That bright-line restriction has been eroded over time with the rise of actions for intentional infliction of emotional distress as well as negligent infliction of emotional distress. In practice, both torts are rarely viable alone, without other accompanying actions. In almost all jurisdictions that recognize the negligent version of the tort, the action is limited by requirements that reflect the longstanding judicial reluctance to open the floodgates to emotional distress claims more broadly. This means that there is effectively only a limited duty to prevent purely emotional losses; the duty will depend on a number of factors set out in a given jurisdiction.
Expand On Your Understanding – Choking Victim Duty Hypotheticals
Review the following hypotheticals. Turn each card to reveal the answer.
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Questions or Areas of Focus for the Readings
• Do you agree with where courts do and don’t find that a duty exists? Descriptively? Normatively?
• Look for references to the purposes of tort law, even if you find them by “reading between the lines”; what role can you see duty playing as a factor in shaping tort policy?
• When are courts choosing to diverge from older rules versus pronouncing themselves constrained by prior precedents or rules? What do you notice about fact patterns in which courts do or don’t announce a change?
• In what ways do you see duty analysis reflecting sociological issues or context? If you changed the gender of the parties in the cases that follow, or made race or class explicit with respect to one or the other of the parties, for instance, might the analysis change? | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/03%3A_Negligence/3.01%3A_Negligence-_Duty.txt |
The general rule of duty depends on foreseeability. Where harms are foreseeable, both moral and legal notions suggest that it is proper to prevent them unless the costs or risks of doing so outweigh the costs or risks of not doing so. Efficiency, fairness, deterrence and compensation are all powerful rationales for pinning duty to foreseeability—in theory. In practice, determining what is foreseeable has commonly been an exercise in judicial policymaking with lines drawn that sometimes seem principled and coherent and other times seem outcome-driven, poorly reasoned or even incoherent.
Foreseeability has often played a role in constricting the scope of liability but it expanded the scope of duty with respect to landlord liability. Were landlords liable to their tenants and their guests, when third parties committed crimes for which the landlords were not directly responsible? The common law answer was no, reflecting the default to “no duty.” However, fifty years ago a landmark case Kline v. 1500 Massachusetts Ave., 439 F.2d 477 (1970), signaled the start of courts’ willingness to find a duty in some cases of landlord responsibilities to prevent third-party crimes. The following case also provides a helpful overview of the changing notions of duty over time.
Note: The case mentions a sexual assault in the background of the fact pattern but does not dwell on or recount it beyond that.
(137 N.H. 653)
[The legal question is: Does New Hampshire law impose a duty on landlords to provide security to protect tenants from the criminal attacks of third persons?]
On December 13, 1988, the plaintiff, Deanna Walls, was sexually assaulted in her vehicle, which was parked on the premises of the Bay Ridge Apartment Complex in Nashua. The plaintiff lived with her mother, who leased an apartment at Bay Ridge. Gerard Buckley was arrested and subsequently convicted of sexually assaulting the plaintiff. Bay Ridge is owned by defendant Nashua–Oxford Bay Associates Limited Partnership (Nashua–Oxford), and managed by defendant Oxford Management Company, Inc. (Oxford). It consists of 412 apartments located in fourteen buildings. During the two years prior to the assault, the Bay Ridge complex had been the site of a number of crimes directed against property, including eleven automobile thefts, three attempted automobile thefts, and thirty-one incidents involving criminal mischief/theft. No sexual assaults or similar attacks against persons had been reported.
The plaintiff brought this action in federal court, charging that the defendants “had a duty to hire and contract with a competent management company, had a duty to provide reasonable security measures for the protection of residents of Bay Ridge, a duty to warn residents of its lack of security, as well as a duty to warn residents of the numerous criminal activities which had taken place on the premises of Bay Ridge and in the vicinity of Bay Ridge.”
The plaintiff alleges that the defendants breached these duties, and that the breach was a proximate cause of the sexual assault. *656
1. Landlor d’s Duty to Secure Tenants Against Criminal Attack
The issues raised by the first question [before] the court at the confluence of two seemingly contradictory principles of law. On one hand lies the accepted maxim that all persons, including landlords, have a duty to exercise reasonable care not to subject others to an unreasonable risk of harm. See Sargent v. Ross, 113 N.H. 388, 391 (1973). On the other hand, a competing rule holds that private persons have no general duty to protect others from the criminal acts of third persons. See Restatement (Second) Of Torts § 314 (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 33, at 201 (5th ed. 1984).
Claims for negligence “rest primarily upon a violation of some duty owed by the offender to the injured party.” [c] Absent a duty, there is no negligence. Whether a duty exists in a particular case is a question of law. [cc] Only after a court has determined that a defendant owed a plaintiff a duty, and identified the standard of care imposed by that duty, may a jury consider the separate question of whether the defendant breached that duty. [c]
While of paramount importance to the analysis of a claim for negligence, duty “is an exceedingly artificial concept.” Libbey v. Hampton Water Works Co., 118 N.H. 500, 502, (1978). In some cases, a party’s actions give rise to a duty. [c] A party who does not otherwise have a duty, but who voluntarily renders services for another, has been held to a duty of reasonable care in acting. [c] Restatement (Second) Of Torts, supra §§ 323, 324. In other cases, a duty to act exists based on a special relationship between two parties. [c] In either case, the scope of the duty imposed is limited by what risks, if any, are reasonably foreseeable. [c] As a general rule, “a defendant will not be held liable for negligence if he could not reasonably foresee that his conduct would result in an injury or if his conduct was reasonable in light of what he could anticipate.”
*657 When charged with determining whether a duty exists in a particular case, we necessarily encounter the broader, more fundamental question of “whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” Libbey, 118 N.H. at 502 (quotation omitted). The decision to impose liability ultimately rests on “a judicial determination that the social importance of protecting the plaintiff’s interest outweighs the importance of immunizing the defendant from extended liability.” Libbey, 118 N.H. at 502. See generally Keeton, supra § 54, at 358 (duty not sacrosanct in itself, but only expression of sum total of policy considerations).
At one time, landlords enjoyed considerable immunity from “simple rules of reasonable conduct which govern other persons in their daily activities.” Sargent, 113 N.H. at 391. A landlord owed no general duty to his tenants, and could be found liable for injuries caused by a defective or dangerous condition on leased property only if the injuries were “attributable to (1) a hidden danger in the premises of which the landlord but not the tenant [was] aware, (2) premises leased for public use, (3) premises retained under the landlord’s control, such as common stairways, or (4) premises negligently repaired by the landlord.” Id. at 392. In Sargent, however, this court abolished landlord immunity, and held that a landlord has a duty to act as a reasonable person under all the circumstances. Id. at 397. We acknowledged that “[c]onsiderations of human safety within an urban community dictate that the landowner’s relative immunity, which is primarily supported by values of the agrarian past, be modified in favor of negligence principles of landowner liability.” Id. at 396 (quotation omitted).
While we can state without reservation that landlords owe a general duty of reasonable care to their tenants, our efforts at resolving the first question presented are complicated by the competing common law rule that private citizens ordinarily have no duty to protect others from criminal attacks. See generally Restatement (Second) of Torts, supra § 314; Keeton, supra § 33, at 201; Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 481 (D.C.Cir.1970). This rule is grounded in the fundamental unfairness of holding private citizens responsible for the unanticipated criminal acts of third parties. “Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the *658 law…. Although [crimes] do occur … they are still so unlikely that the burden of taking continual precautions against them almost always exceeds the apparent risk.” Keeton, supra § 33, at 201. In keeping with this rule, courts have largely refused to hold landlords to a general duty to protect tenants from criminal attack. [c]
We agree that as a general principle, landlords have no duty to protect tenants from criminal attack. Without question, there is much to be gained from efforts at curtailing criminal activity. Yet, we will not place on landlords the burden of insuring their tenants against harm from criminal attacks.
Our inquiry is not concluded, however, as we must further consider whether exceptions to the general rule against holding individuals liable for the criminal attacks of others apply to the landlord-tenant relationship. A review of the law in this area suggests four such exceptions. The first arises when a special relationship, such as that of innkeeper-guest, or common carrier-passenger, exists between the parties. See Restatement (Second) of Torts, supra § 314A. Courts have repeatedly held, however, that a landlord-tenant relationship is not a special relationship engendering a duty on the part of the landlord to protect tenants from criminal attack. [cc] But see Kline v. 1500 Massachusetts Avenue, 439 F.2d at 485 (finding landlord-tenant relationship analogous to that of innkeeper-guest).
A second exception arises where “an especial temptation and opportunity for criminal misconduct brought about by the defendant, will call upon him to take precautions against it.” Keeton, supra § 33, at 201 (emphasis added). This exception follows from the rule that a party who realizes or should realize that his conduct has created a condition which involves an unreasonable risk of harm to another has a duty to exercise reasonable care to prevent the risk from taking effect. Restatement (Second) of Torts, supra § 321; see also Restatement (Second) of Torts, supra § 448 (criminal act of third person is superseding cause of harm to another unless defendant could have foreseen that his negligent conduct increased risk of crime). Accordingly, in the majority of cases in which a landlord has *659 been held liable for a criminal attack upon a tenant, a known physical defect on the premises foreseeably enhanced the risk of that attack. See, e.g., Braitman v. Overlook Terrace Corp., 68 N.J. 368, 377, 381 (1975) (defective deadbolt on apartment door); Aaron, 758 S.W.2d at 446 (broken window latch); Duncavage v. Allen, 147 Ill.App.3d 88 (1986) (inoperable lighting; ladder left unattended near unlocked window).
A third exception is the existence of overriding foreseeability. Some courts have held landlords to a duty to protect tenants from criminal attacks that were clearly foreseeable, even if not causally related to physical defects on the premises. See, e.g., Trentacost v. Brussel, 82 N.J. 214, 218 (1980) (criminal activity apparent in plaintiff’s neighborhood); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98, 100 (Fla.App.1980) (apartment complex plagued by high incidence of serious crime); Kline v. 1500 Massachusetts Avenue, 439 F.2d at 483 (crimes perpetrated against tenants in common area of apartment complex); Johnston v. Harris, 387 Mich. 569, 573–74 (1972); Faheen By Hebron v. City Parking Corp., 734 S.W.2d 270, 273 (Mo.App.1987).
The fourth exception derives from the general tort principle that one who voluntarily assumes a duty thereafter has a duty to act with reasonable care. See Restatement (Second) of Torts, supra §§ 323, 324. Thus, landlords who gratuitously or contractually provide security have been found liable for removing the security in the face of a foreseeable criminal threat. [cc]
We hold that while landlords have no general duty to protect tenants from criminal attack, such a duty may arise when a landlord has created, or is responsible for, a known defective condition on a premises that foreseeably enhanced the risk of criminal attack. Moreover, a landlord who undertakes, either gratuitously or by contract, to provide security will thereafter have a duty to act with reasonable care. Where, however, a landlord has made no affirmative attempt to provide security, and is not responsible for a physical defect that enhances the risk of crime, we will not find such a duty. We reject liability based solely on the landlord-tenant relationship or on a doctrine of overriding foreseeability.
A finding that an approved exception applies is not dispositive of the landlord’s liability for a tenant’s injury. Where a landlord’s duty is premised on a defective condition that has foreseeably enhanced the risk of criminal attack, the question whether the defect *660 was a proximate or legal cause of the tenant’s injury remains one of fact. Moreover, where a landlord has voluntarily assumed a duty to provide some degree of security, this duty is limited by the extent of the undertaking. [c] Rowe, 125 Ill.2d at 218–19, 126 Ill. Dec. at 526. For example, a landlord who provides lighting for the exterior of an apartment building might be held liable for failing to insure that the lighting functioned properly, but not for failing to provide additional security measures such as patrol services or protective fencing.
The answer to the [***] question is no, subject to the pleading or proof, as appropriate, of facts supporting the approved exceptions.
Remanded.
Note 1. Revisiting the purposes of tort law—fairness, compensation, deterrence, efficiency and social justice—which of these are served (and disserved) by attaching tort liability to landlords for third-party criminal attacks suffered by their tenants?
Note 2. Whom does a blanket rule on this issue serve best? If tort liability does not attach to landlords for third-party criminal activity, what other incentives do landlords have to make their property safer for the benefit of their tenants? Do you think they are as effective as those that tort law ordinarily attempts to create? What are the effects, for tenants, of expanding the liability of landlords?
Expand On Your Understanding – Socratic Script: Walls v. Oxford Management
Question 1. What is the holding of the case?
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Question 2. Why is a jury not involved in resolving the case?
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Question 3. What tension in common law rules does the court identify in its reasoning? Another way of putting this question is that the court identifies a set of competing default rules; how does it frame those and how does it tailor its holding in light of them?
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Question 4. What does the court mean when it states that it “will not place on landlords the burden of insuring their tenants against harm from criminal attacks”?
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Question 5. What consequences might follow if courts routinely did find that landlords owed their tenants a general duty of care to prevent criminal attacks?
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Tarasoff v. Regents of the University of California is that rare case that many non-lawyers recognize (and may fear). In the fields of medicine, psychology and social work, the case is routinely taught because of its impact on the duties of those who become aware of credible risks to specific third parties. The case surprised many by finding there was a duty on the part of a therapist to warn a specific third party who was not his client, even though that would have meant violating client confidentiality and even though he had no other relationship with that third party. His client, Prosenjit Poddar, had threatened harm to a young woman, Tatiana Tarasoff, and Poddar ultimately killed her. There is a troubling dynamic present in the case, of a mentally unstable young man who, in response to rejection by a female student, acts out his feelings in deadly violence. As you read, keep in mind what sorts of expectations the parties involved in such a scenario may have and try to imagine the impact of any alternative ruling the court could have handed down.
(551 P.2d 334)
On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Plaintiffs, Tatiana’s parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. They allege that on Moore’s request, the campus police briefly detained Poddar, but released him when he appeared rational. They further claim that Dr. Harvey Powelson, Moore’s superior, then directed that no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana’s peril.
Concluding that these facts set forth causes of action against neither therapists and policemen involved, nor against the Regents of the University of California as their employer, the superior court sustained defendants’ demurrers to plaintiffs’ second amended complaints without leave to amend. This appeal ensued.
Plaintiffs’ complaints predicate liability on… defendants’ failure to warn plaintiffs of the impending danger…. Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana. The most important …consideration … in establishing duty is foreseeability. As a general principle, a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ …
Although … under the common law, as a general rule, one person owed no duty to control the conduct of another nor to warn those endangered by such conduct, the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either ‘(a) a special relation … between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation … between the actor and the other which gives to the other a right of protection.’
Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist. Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons. A doctor must also warn a patient if the patient’s condition or medication renders certain conduct, such as driving a car, dangerous to others. …
Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence. [***]
We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise’ that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances.’ …In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn. …Weighing the uncertain and conjectural character of the alleged damage done the patient by such a warning against the peril to the victim’s life, we conclude that professional inaccuracy in predicting violence cannot negate the therapist’s duty to protect the threatened victim.
The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. We would hesitate to hold that the therapist who is aware that his patient expects to attempt to assassinate the President of the United States would not be obligated to warn the authorities because the therapist cannot predict with accuracy that his patient will commit the crime. …
The revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: “A physician may not reveal the confidence entrusted to him in the course of medical attendance … [u]nless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.” We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins. [***]
The judgment of the superior court in favor of defendants … is reversed, and the cause remanded for further proceedings consistent with the views expressed herein.
Note 1.Tarasoff provides the rule that “[t]he protective privilege ends where the public peril begins.” Do you think it is clear to therapists when that public peril begins? What sorts of methods, or evidence, do you imagine being helpful to that determination?
Note 2. What are the risks of placing the determination of “public peril” with a therapist? If a therapist did warn the third party and it caused worse harm, perhaps because the patient learned about it, or for other reasons, would the Tarasoff duty have been satisfied or breached? If a therapist were sufficiently concerned to warn a third party, should the duty also extend to warning the police? What about to family members of the therapist’s clients? Are there implications for the no-duty doctrine of receiving Tarasoff warnings from therapists?
Note 3. The Tarasoff rule has been limited in some cases (to specific or “identifiable” victims) and in some states, it has expressly been rejected (with such states reaffirming on the grounds of the no duty/special relationship rules that therapists have no duty to third-party victims). Before this case, the general rule was clear: there was no duty to warn arising out of the therapeutic relationship. On the contrary, there were professional norms and legal obligations of confidentiality to the patient. As discussed in the introduction to this section, the court uses the term “affirmative” to refer to duties against the backdrop of that “no-duty” common law default: “Such a relationship may support affirmative duties for the benefit of third persons.” It does so partly to announce a change in the law. Indeed, despite finding that there was no special relationship here that would ordinarily “ground” (or give rise to) a duty, the court finds one on the basis of foreseeability. “The most important …consideration … in establishing duty is foreseeability”; “a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’”
Tarasoff presents the unusual case in which a court makes a sharp change on the basis of particular facts and policy rationales, and then subsequent courts, legislators, and the professional or other entities affected by the ruling must make decisions to adopt, reject, respond in some other fashion or ignore the case. It is rare that a major ruling and a sudden significant change will be completely ignored, however. What changes would you recommend in a jurisdiction that had not yet adopted Tarasoff, and why?
One of the most famous cases you will read in law school, Palsgraf v. Long Island Railroad, concerns the scope of duty owed to an injured person whose injury the defendant might not anticipate or be able to foresee. It is often taught as a case about proximate cause—which is how the dissent frames the issue—but in fact the opinion concerns the scope of responsibility to an unforeseeable victim and the holding is framed in terms of duty.
(248 N.Y. 339) Justice Cardozo
Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help *341 him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.
The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ‘Proof of negligence in the air, so to speak, will not do.’ Pollock, Torts (11th Ed.) p. 455; Martin v. Herzog, 228 N. Y. 164, 170, Cf. Salmond, Torts (6th Ed.) p. 24. ‘Negligence is the absence of care, according to the circumstances.’ [c]
The plaintiff, as she stood upon the platform of the station, might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor. *342 If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. ‘In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.’ [cc] The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.
A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise *343 which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed.
In this case, the rights that are said to have been violated, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. It there was a wrong to him at all, which may very well be doubted it was a wrong to a property interest only, the safety of his package.
Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to someone else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.
The argument for the plaintiff is built upon the shifting meanings of such words as ‘wrong’ and ‘wrongful,’ and shares their instability. What the plaintiff must *344 show is ‘a wrong’ to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to anyone. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and therefore of a wrongful one, irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. [cc]
This does not mean, of course, that one who launches a destructive force is always relieved of liability, if the force, though known to be destructive, pursues an unexpected path. ‘It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.’ [Citations omitted] Some acts, such as shooting are so imminently dangerous to any one who may come within reach of the missile however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even to-day, and much oftener in earlier stages of the law, one acts sometimes at one’s peril. [cc] Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B. Talmage v. Smith, 101 Mich. 370, 374 *345 These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional. Parrot v. Wells-Fargo Co. (The Nitro-Glycerine Case) 15 Wall. 524, 21 L. Ed. 206. The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury.
Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.
Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. [c] Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. [***] Confirmation of this view will be found in the history and development of the action on the case.
Negligence as a basis of civil liability was unknown to mediaeval law. 8 Holdsworth, History of English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, *346 pp. 189, 190. For damage to the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct and personal. [***] Liability for other damage, as where a servant without orders from the master does or omits something to the damage of another, is a plant of later growth. [cc] When it emerged out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears in the form of action, which was known as trespass on the case. [cc] The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime. Holland, Jurisprudence (12th Ed.) p. 328. He sues for breach of a duty owing to himself.
The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary [cc] There is room for *347 argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforeseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.
ANDREWS, J. (dissenting).
Assisting a passenger to board a train, the defendant’s servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling, they injured the plaintiff, an intending passenger.
Upon these facts, may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept—the breach of some duty owing to a particular person or to particular persons? Or, where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis, *348 we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.
Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect one’s self from the dangers resulting from such acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word ‘unreasonable.’ For present purposes it sufficiently describes that average of conduct that society requires of its members.
There must be both the act or the omission, and the right. It is the act itself, not the intent of the actor, that is important. [c] In criminal law both the intent and the result are to be considered. Intent again is material in tort actions, where punitive damages are sought, dependent on actual malice—not one merely reckless conduct. But here neither insanity nor infancy lessens responsibility. [c] As has been said, except in cases of contributory negligence, there must be rights which are or may be affected. Often though injury has occurred, no rights of him who suffers have been touched. A licensee or trespasser upon my land has no claim to affirmative care on my part that the land be made safe. [c] Where a railroad is required to fence its tracks against cattle, no man’s rights are injured should he wander upon the road because such fence is absent. [c] An unborn child may not demand immunity from personal harm. [c]
But we are told that ‘there is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff *349 himself and not merely to others.’ Salmond Torts (6th Ed.) 24. This I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger, but to all who might have been there—a wrong to the public at large. Such is the language of the street. Such the language of the courts when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. [c] As was said by Mr. Justice Holmes many years ago:
‘The measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another,’ Spade v. Lynn & B. R. Co., 172 Mass. 488, 491, (43 L. R. A. 832, 70 Am. St. Rep. 298).
Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B, or C alone. It may well be that there is no such thing as negligence in the abstract. ‘Proof of negligence in the air, so to speak, will not do.’ In an empty world negligence would not exist. It does involve a relationship between man and his fellows, but not merely a relationship between man and those whom he might reasonably expect his act would injure; rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm someone, it harms him a mile away as surely as it does those on the scene.
We now permit children to recover for the negligent killing of the father. It was never prevented on the theory that no duty was owing to them. A husband may be compensated for *350 the loss of his wife’s services. To say that the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation—of suing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the company. Even if it be true that the fault of father, wife, or insured will prevent recovery, it is because we consider the original negligence, not the proximate cause of the injury. Pollock, Torts (12th Ed.) 463.
In the well-known Polemis Case, [1921] 3 K. B. 560, Scrutton, L. J., said that the dropping of a plank was negligent, for it might injure ‘workman or cargo or ship.’ Because of either possibility, the owner of the vessel was to be made good for his loss. The act being wrongful, the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is. [***]
The proposition is this: Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm, might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining, but this is not a duty to a particular individual because as to him harm might be expected. Harm to someone being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio Case we said that a breach of a *351 general ordinance defining the degree of care to be exercised in one’s calling is evidence of negligence as to everyone. We did not limit this statement to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.
If this be so, we do not have a plaintiff suing by ‘derivation or succession.’ Her action is original and primary. Her claim is for a breach of duty to herself—not that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion.
The right to recover damages rests on additional considerations. The plaintiff’s rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property downstream. We are not liable if all this happened because of some reason other than the insecure foundation. But, when injuries do result from out unlawful act, we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen, and unforeseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former. These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain, or, if you please, a net. An analogy is of little aid. *352 Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.
Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last inevitably no trace of separation remains. They are so commingled that all distinction is lost. As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Sarajevo may be the necessary antecedent to an assassination in London twenty years hence. An overturned lantern may burn all Chicago. We may follow the fire from the shed to the last building. We rightly say the fire started by the lantern caused its destruction.
A cause, but not the proximate cause. What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor’s. I may recover from a negligent railroad He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor’s fire. Cause it surely was. The words we used were *353 simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.
Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration: A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may. As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or the baby. As to them he was not negligent. But the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it. C’s injury and that of the baby were directly traceable to the collision. Without that, the injury would not have happened. C had the right to sit in his office, secure from such dangers. The baby was entitled to use the sidewalk with reasonable safety.
The true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and the injury to the baby, is that their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe would be the result of his conduct, but what the prudent would foresee, may have a bearing—may have some bearing, for the problem *354 of proximate cause is not to be solved by any one consideration. It is all a question of expediency. There are no fixed rules to govern our judgment. There are simply matters of which we may take account. We have in a somewhat different connection spoken of ‘the stream of events.’ We have asked whether that stream was deflected—whether it was forced into new and unexpected channels. [***] This is rather rhetoric than law. There is in truth little to guide us other than common sense.
There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or, by the exercise of prudent foresight, could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. [c] Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned, the firing of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagration—the force of the wind, the direction and width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can. Once again, it is all a question of fair judgment, always *355 keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.
Here another question must be answered. In the case supposed, it is said, and said correctly, that the chauffeur is liable for the direct effect of the explosion, although he had no reason to suppose it would follow a collision. ‘The fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur’s negligence from being in law the cause of the injury.’ But the natural results of a negligent act—the results which a prudent man would or should foresee—do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the direct connection, the foresight of which the courts speak, assumes prevision of the explosion, for the immediate results of which, at least, the chauffeur is responsible.
It may be said this is unjust. Why? In fairness he should make good every injury flowing from his negligence. Not because of tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace the consequences, not indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.
This last suggestion is the factor which must determine the case before us. The act upon which defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the owner; if it fell upon and crushed a passenger’s foot, then to him; if it exploded *356 and injured one in the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance away. How far cannot be told from the record—apparently 25 or 30 feet, perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief, ‘It cannot be denied that the explosion was the direct cause of the plaintiff’s injuries.’ So it was a substantial factor in producing the result—there was here a natural and continuous sequence—direct connection. The only intervening cause was that, instead of blowing her to the ground, the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here, it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable.
Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so charge. No request was made to submit the matter to the jury as a question of fact, even would that have been proper upon the record before us.
The judgment appealed from should be affirmed, with costs.
Note 1. You know it’s a famous case when there’s a Lego dramatization. You might appreciate this 5:24 minute Lego-figure parody and recreation of the facts and trial of Palsgraf (but beware that it takes liberties such as including an anachronistic TSA interview and televisual exhibit in the courtroom). It’s available here (full link: https://www.youtube.com/watch?v=mDEbTudkjhc)
Note 2. Palsgraf may be famous because of the oddly vivid facts, the socioeconomic context, and the elevated language and reasoning of the majority and dissenting opinions by Justice Cardozo and Justice Andrews, respectively. These two justices remain extremely well-respected for their analytic craft, especially Justice Cardozo, who would go on to become one of the most influential justices of the century (and a renowned expert on tort law). But it was also an important opinion because it featured a dispute over where in the negligence action the scope of the tort was to be defined—at the duty stage, as a matter of law for the judge, or at the later proximate cause stage, as a question of fact for the jury. The two justices are both trying to answer the same normative question: Should the court hold the defendant liable to this plaintiff? Given that, why might it matter whether a case like Palsgraf is decided by a judge versus a jury?
Note 3. If “foreseeability” is the driving consideration behind duty (and plays a role in many analyses of proximate cause), it ought to be a principle that can be conceptualized in terms of tort law’s purposes. How well does it serve compensation, deterrence, efficiency, fairness and social justice? What sorts of consequences do you imagine an emphasis on foreseeability could produce in the real world in terms of parties’ behavior and choices?
Check Your Understanding (3-1)
Question 1. Complete the sentence with the most descriptively accurate answer: In Palsgraf, Justice Cardozo overturned the jury verdict below, reversed and rejected Mrs. Palsgraf’s appeal because ____:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. Doctrinal Synthesis. Learning in law school is cumulative and reviewing earlier doctrines regularly helps you both to recall and refine them. The following questions ask you to synthesize learning from earlier cases you’ve covered. For each one, answer whether the doctrine might be relevant on the facts of Palsgraf.
Common carriers face heightened duties towards their passengers
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Causa causans
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Strict liability
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Apparent consent
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Transferred intent
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Vicarious liability
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(499 N.W.2d 472)
This case arises upon a reversal by the court of appeals of summary judgment in favor of the defendant. The court of appeals held that defendant, the owner and operator of a private boat on Lake Minnetonka, had a duty to warn plaintiff, a guest on the boat, that water surrounding the boat was too shallow for diving. We reverse and reinstate judgment in favor of defendant.
The facts are undisputed for the purpose of this appeal. On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26–foot boat, sailing on Lake Minnetonka. Harper was invited on the boat outing by Cindy Alberg Palmer, another guest on Herman’s boat. Herman and Harper did not know each other prior to this boat outing. At the time Herman was 64 years old, and Harper was 20 years old. Herman was an experienced boat owner having spent hundreds of hours operating boats on Lake Minnetonka similar to the one involved in this action. As owner of the boat, Herman considered himself to be in charge of the boat and his passengers. Harper had some experience swimming in lakes and rivers, but had no formal training in diving.
After a few hours of boating, the group decided to go swimming and, at Herman’s suggestion, went to Big Island, a popular recreation spot. Herman was familiar with Big Island, and he was aware that the water remains shallow for a good distance away from its shore. Harper had been to Big Island on one previous occasion. Herman positioned the boat somewhere between 100 to 200 yards from the island with the bow facing away from the island in an area shallow enough for his guests to use the boat ladder to enter the water, but still deep enough so they could swim.[1] The bottom of the lake was not visible from the *474 boat. After positioning the boat Herman proceeded to set the anchor and lower the boat’s ladder which was at its stern.
While Herman was lowering the ladder, Harper asked him if he was “going in.” When Herman responded yes, Harper, without warning, stepped onto the side of the middle of the boat and dove into approximately two or three feet of water. As a result of the dive, Harper struck the bottom of the lake, severed his spinal cord, and was rendered a C6 quadriplegic.
Harper then brought suit, alleging that Herman owed him a duty of care to warn him that the water was too shallow for diving. On October 23, 1991, the trial court granted Herman’s motion for summary judgment, ruling that the law does not impose such a duty. In reversing the trial court, the court of appeals concluded that Herman voluntarily assumed a duty to exercise reasonable care when he allowed Harper onto his boat, and that the duty of care included warning Harper not to dive because he knew that the water was “dangerously shallow.” Harper v. Herman, 487 N.W.2d 908, 910 (Minn.App.1992). [***]
Harper alleges that Herman owed him a duty to warn of the shallowness of the water because he was an inexperienced swimmer and diver, whereas Herman was a veteran boater. Under those circumstances, Harper argues, Herman should have realized that Harper needed his protection.
We have previously stated that an affirmative duty to act only arises when a special relationship exists between the parties. “The fact that an actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action * * * unless a special relationship exists * * * between the actor and the other which gives the other the right to protection.” [c] Accepting, arguendo, that Herman should have realized that Harper needed protection, Harper must still prove that a special relationship existed between them that placed an affirmative duty to act on the part of Herman.
Harper argues that a special relationship requiring Herman to act for his protection was created when Herman, as a social host, allowed an inexperienced diver on his boat. Generally, a special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. Restatement (Second) of Torts § 314A (1965). Under this rule, a special relationship could be found to exist between the parties only if Herman had custody of Harper under circumstances in which Harper was deprived of normal opportunities to protect himself.[2] These elements are not present here.
The record before this court does not establish that Harper was either particularly vulnerable or that he lacked the ability to protect himself. Further, the record does not establish that Herman held considerable power over Harper’s welfare, or that Herman was receiving a financial gain by hosting Harper on his boat. Finally, there is nothing in the record which would suggest that Harper expected any protection *475 from Herman; indeed, no such allegation has been made.
The court of appeals found that Herman owed Harper a duty to warn him of the shallowness of the water because Herman knew that it was “dangerously shallow.” We have previously stated that “[a]ctual knowledge of a dangerous condition tends to impose a special duty to do something about that condition.” [***] However, superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence. Thus, Herman’s knowledge that the water was “dangerously shallow” without more does not create liability. [***] Harper was not deprived of opportunities to protect himself, and Herman was not expected to provide protection.
“There are many dangers, such as those of fire and water, * * * which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child * * *.” Restatement (Second) of Torts § 339 cmt. j (1965). If a child is expected to understand the inherent dangers of water, so should a 20–year–old adult. Harper had no reasonable expectation to look to Herman for protection, and we hold that Herman had no duty to warn Harper that the water was shallow.
Reversed and judgment in favor of defendant reinstated.
Note 1. Does the court’s ruling rest primarily on the plaintiff’s expectations and capacity or the defendant’s obligations? To what extent can those be uncoupled? Should it matter whether the boat’s owner invited the guest directly (as he did not, in this case)?
Note 2. What facts would you add if you were seeking to convert this fact pattern into one in which Herman did owe Harper a duty on the basis of a special relationship?
(282 P.2d 756)
Tony Wayne Sidwell, a sixteen year old boy, as plaintiff brought this action by and through his mother and next friend, Ava Jane Sidwell, against W. F. Peterson III and Mickey McVay, two other boys about the same age, and against Ralph H. McVay and Myra E. McVay, the parents of the latter, all as defendants to recover damages for personal injuries resulting from a fireworks explosion. The parties will be referred to as they appeared in the trial court.
The question here presented is whether or not the trial court was correct in sustaining demurrers to plaintiff’s evidence and dismissing the action. On the morning of July 4, 1952 at about 9:00 o’clock, the *758 defendant Mickey McVay drove by the home of plaintiff in the McVay family automobile. The two boys then drove to the McVay home where they got with the Peterson boy. For several years the three had been close school chums. They then drove to a fireworks retail sales stand where they pooled their money and bought a gross of firecrackers known as ‘cherry bombs.’ They returned to the McVay home where, in the breakfast room thereof and with kitchen knives, they opened about sixty or seventy of the firecrackers and removed the gunpowder totaling about one half teacupful. From the garage or shed, they got a short piece of metal pipe with a cap screwed on one end. They used a hammer and punch to make a small hole in the middle of the pipe, in which to insert the fuse. They poured the powder into the pipe and stuffed pieces of paper in the open end. Unable to locate another cap for the pipe, the plaintiff laid the pipe on the concrete floor or driveway of the garage and began trying to beat the open end of the pipe together with a hammer. The other two boys were frightened and moved back to a safe distance. After plaintiff had hammered on the pipe for several minutes, the contraption exploded blowing off his left hand.
During the time the boys were removing the powder from the ‘cherry bombs,’ both Mr. and Mrs. McVay came through the kitchen several times, the latter admonishing them about making a mess in the breakfast room. While the plaintiff was hammering on the pipe, Mr. McVay came out of the house and got into his car. He noticed what the boys were doing and told them to get back away from the shed or they would burn it up. About a year previously the boys had made two similar bombs from aluminum pipe and Mr. McVay had driven them to a lake near the city limits to shoot them. At about that same previous time, the plaintiff and his younger brother and possibly the McVay boy had constructed a similar bomb and had exploded it outside the city limits.
[***] [On appeal, plaintiff’s] position is:
‘It was the duty of the defendants as the owners and operators of the premises to either take the dangerous ingredients away from the plaintiff, or to require him to get off of the premises before going ahead with the assembly of their various materials into the dangerous product, or, to warn plaintiff of the danger connected with what he was doing.’
With this contention, we do not agree. [***] Here the plaintiff was not attracted to the McVay home nor was he injured by any condition thereon. He was injured as a result of his own acts upon the dangerous instrumentality, the gunpowder, which the plaintiff himself had assisted in bringing onto the premises. The plaintiff was a sixteen year old boy with an alert mind and a past experience with the dangerous substance. The attractive nuisance doctrine had no application. The following statement in the case of Keck v. Woodring, 201 Okl. 665 is particularly applicable here:
‘Whether the child was of an age and capacity to understand and avoid danger is usually a question for the jury, but it may be stated as a settled rule in this state that after the age of fourteen all minors are prima facie presumed to be capable of the exercise of judgment and discretion. Plaintiff being over the age of fourteen, and there being no evidence of lack of capacity, but, on the contrary, there being evidence that plaintiff was of advanced intelligence, the trial court should have held as a matter of law that the rule of attractive nuisance could not be invoked.’
Citation of authority is unnecessary to support the rule that in order for *759 plaintiff to recover in an action founded upon negligence, proof must be made of the essential elements; that defendant had duty to protect injured person from injury; that defendant failed to perform that duty, and that such failure was proximate cause of injury. The lack of proof of any one of these elements is fatal to the action. In the case before us there is a complete absence of proof of any duty to plaintiff owed by any of the defendants. Even though the means had been at hand to stop plaintiff from hammering the pipe, none of the defendants was obligated to do so.
‘As a general rule, the law imposes no duty on one person actively to assist in the preservation of the person or property of another from injury, even though the means by which harm can be averted are in his possession. The law does not undertake to make men render active service to their neighbors at all times when a good or brave man would do so.
‘Those duties which are dictated merely by good morals, or by humane considerations, are not within the domain of the law.’ 38 Am.Jur. 658, Negligence sec. 16.
The last quoted rule is also applicable to the minor defendants, McVay and Peterson. None of the evidence tended to establish a duty due from them to plaintiff nor any breach of duty. There was testimony that these latter defendants, as they were seeking a place of safety, tried to get plaintiff to stop hammering on the bomb. Since, however, the plaintiff denied it and the matter was presented on demurrer, there was no proof that they sanctioned or encouraged the dangerous acts.
Plaintiff’s evidence wholly failed to establish any of the essentials above enumerated entitling him to recover. [***] Therefore, the trial court committed no error in sustaining the several demurrers to the evidence of plaintiff.
The judgment is affirmed.
Note 1. How important do you think the boys’ age and gender were to this case? Do you think contemporary parenting models might prompt different analysis from a court today?
Note 2. No Duty to Rescue.Sidwell reinforces the general proposition that there is no duty to rescue in American tort law. That is, there is no duty to take affirmative steps to help or “rescue” another who faces a risk or harms you did not create through your negligence or contribute to increasing. “Rescue” does not mean only traditional rescues such as helping someone out of a difficult spot in the moment when it is happening, but more broadly, the undertaking of steps to assist or warn the injured or vulnerable. Tort law does not require taking action to help someone unless you have a special relationship or contract or fall into one of the exceptions or categories in which specific duties are articulated. Even then, expect to see rulings of “no duty” in many cases where some duty might be owed to some people, at some times. Consider that in Harper the victim was a guest on the defendant’s boat but that social relationship alone and the boat’s ownership did not give rise to a duty to warn; in Sidwell, although the boys were friends and all involved in experimenting with the explosives to some extent, their joint efforts were not enough to give rise to a duty to interfere with or impede the plaintiff from his own decisions to hammer the pipe bomb.
Note 3. Policy Considerations Underpinning the No Duty to Rescue Rule. Some scholars have called out the uniquely American nature of the no duty rule.
With a few exceptions, the general rule in American tort law is that bystanders will not be liable to a victim for their failure to affirmatively aid. There is, in other words, no general duty to reasonably rescue in American law. This feature of American tort law differs markedly from the legal treatment of the same issue in other parts of the world where legal obligations to affirmatively aid another in peril are common. It stands also in striking contrast to most conventional views of common decency and morality. [But] a full understanding of the no-duty-to-rescue doctrine begins with an appreciation that it is less an affirmative assertion of preferred behavior and outcomes than a tenet of tort law not to extend the usual regulatory pressures of negligence into this particular nook of human judgment.
Marin Roger Scordato, Understanding the Absence of A Duty to Reasonably Rescue in American Tort Law, 82 Tul. L. Rev. 1447, 1452 (2008)
Emphasizing its difference from other jurisdictions denaturalizes the no duty rule and illuminates the fact that philosophical and economic values underpin our system’s continued adherence to it. Scordato has argued that it would impose considerable costs on society to impose a general duty to rescue, and contrasted such a general duty to rescue with a more limited duty that could be imposed on those with expertise in related areas. Other scholars have explored the philosophical implications of retaining the no-duty rule or abandoning it, and there have been spirited defenses of it as a mechanism that reflects tort law’s concern with efficiency. See William M. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Legal Stud. 83, 119-27 (1978) (arguing in part that would-be rescuers will avoid morally worthy attempts to rescue if liability for doing or not doing so exists). Still others have argued the opposite, advocating in favor of a liability rule. See Richard L. Hasen, The Efficient Duty to Rescue, 15 Int’l Rev. L. & Econ. 141, 147 (1995).
Is this an area of law in which making a choice based on efficiency seems advisable to you? Why or why not? What philosophical perspective do you think the law should adopt?
(396 Mich. 281)
There is ample evidence to support the jury determination that David Siegrist failed to exercise reasonable care after voluntarily coming to the aid of Richard Farwell and that his negligence was the proximate cause of Farwell’s death. We are also of the opinion that Siegrist, who was with Farwell the evening he was fatally injured and, as the jury found, knew or should have known of his peril, had an affirmative duty to come to Farwell’s aid.[3]
On the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to return an automobile which Siegrist had borrowed from a friend who worked there. While waiting for the friend to finish work, Siegrist and Farwell consumed some beer. Two girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage them in conversation; they left Farwell’s car and followed the girls to a drive-in restaurant down the street. The girls complained to their friends in the restaurant that they were being followed. Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but Farwell was severely beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied to Farwell’s head. Siegrist then drove Farwell around for approximately two hours, stopping at a number of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around midnight Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway, unsuccessfully attempted to rouse Farwell, and left. Farwell’s grandparents discovered him in the car the next morning and took him to the hospital. He died three days later of an epidural hematoma.
At trial, plaintiff contended that had Siegrist taken Farwell to the hospital, or had he notified someone of Farwell’s condition and whereabouts, Farwell would not have died. A neurosurgeon testified that if a person in Farwell’s condition is taken to a doctor before, or within half an hour after, consciousness is lost, there is an 85 to 88 per cent chance of survival. Plaintiff testified that Siegrist told him that he knew Farwell was badly injured and that he should have done something.
The jury returned a verdict for plaintiff and awarded \$15,000 in damages. The Court of Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and that he neither knew nor should have known of the need for medical treatment.
Two separate, but interrelated questions are presented:
A. Whether the existence of a duty in a particular case is always a matter of law to be determined solely by the Court?
B. Whether, on the facts of this case, the trial judge should have ruled, as a matter of law, that Siegrist owed no duty to Farwell?
‘A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.’ Prosser, Torts (4th ed.), s 53, p. 324. The existence of a duty is ordinarily a question of law. However, there are factual circumstances which give rise to a duty. The existence of those facts must be determined by a jury.[4] In Bonin v. Gralewicz, 378 Mich. 521, 526—527 (1966), this Court reversed a directed verdict of no cause of action where the trial court had determined as a matter of law that the proofs were insufficient to establish a duty of care:
‘Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise. When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate resolution, and they must be accompanied by an appropriate conditional instruction regarding defendant’s duty, conditioned upon the jury’s resolution of the fact dispute.’
This same rule was stated more recently in Davis v. Thornton, 384 Mich. 138, 142, (1970). ‘The trial judge in this case determined the defendant owed the plaintiff no duty. We believe this conclusion could properly be made only by a jury.’
Without regard to whether there is a general duty to aid a person in distress, there is a clearly recognized legal duty of every person to avoid any affirmative acts which may make a situation worse. ‘(I)f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff’s interests.’ [***] In a case such as the one at bar, the jury must determine, after considering all the evidence, whether the defendant attempted to aid the victim. If he did, a duty arose which required defendant to act as a reasonable person.
‘Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it,’ Prosser, Supra, s 37, p. 205. Whether those facts have been proved is a question for the jury. [***] There was ample evidence to show that Siegrist breached a legal duty owed Farwell. Siegrist knew that Farwell had been in a fight, and he attempted to believe Farwell’s pain by applying an ice pack to his head. While Farwell and Siegrist were riding around, Farwell crawled into the back seat and laid down. The testimony showed that Siegrist attempted to rouse Farwell after driving him home but was unable to do so.
In addition, Farwell’s father testified to admissions made to him by Siegrist:
‘Q. Witness, just before the jury was excused, I asked whether you had any conversation with Mr. Siegrist after this event occurred. You answered, ‘Yes, the day *289 after in the living room of Mrs. Grenier’s (the deceased’s mother) home.’ Then, the jury was excused, and we made a special record, and now I would like to ask you some questions that I asked and that you answered out of the presence of the jury.
‘A. Yes.
‘Q. What did Mr. Siegrist say, how did the conversation go?
‘A. I asked him why he left Ricky (the deceased) in the driveway of his grandfather’s home.
‘Q. What did he say?
‘A. He said ‘Ricky was hurt bad, I was scared.’ I said, ‘Why didn’t you tell somebody, tell his grandparents’? He said, ‘Iknow I should have, I don’tknow.” (Emphasis added).
The question at trial came down to whether Siegrist acted reasonably under all the circumstances. [***] The jury in this case found that Siegrist did not act reasonably, and that his negligence was the proximate cause of Farwell’s death.
[***] Siegrist contends that he is not liable for failure to obtain medical assistance for Farwell because he had no duty to do so. Courts have been slow to recognize a duty to render aid to a person in peril.[5] Where such a duty has been found, it has been predicated upon the existence of a special relationship between the parties;[6] in such a case, if defendant knew or should have known of the other person’s peril, [fn] he *291 is required to render reasonable care under all the circumstances. [fn]
[***] The Sixth Circuit Court of Appeals, in Hutchinson v. Dickie, 162 F.2d 103, 106 (C.A. 6, 1947), said that a host had an affirmative duty to attempt to rescue a guest who had fallen off his yacht. The host controlled the only instrumentality of rescue. The Court declared that to ask of the host anything less than that he attempt to rescue his guest would be ‘so shocking to humanitarian considerations and the commonly accepted code of social conduct that the courts in similar situations have had no difficulty in pronouncing it to be a legal obligation.’
Farwell and Siegrist were companions on a social venture. Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself. Siegrist knew or should have known when he left Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find him before morning. Under these circumstances, to say that Siegrist had no duty to obtain medical assistance or at least to notify someone of Farwell’s condition and whereabouts would be ‘shocking to humanitarian considerations’ and fly in the face *292 of ‘the commonly accepted code of social conduct.’ [fn] (C)ourts will find a duty where, in general, reasonable men would recognize it and agree that it exists. [fn]
Farwell and Siegrist were companions engaged in a common undertaking; there was a special relationship between the parties. Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself he had an affirmative duty to come to Farwell’s aid.
The Court of Appeals is reversed and the verdict of the jury reinstated.
FITZGERALD, Justice (dissenting).
The unfortunate death of Richard Farwell prompted this wrongful death action brought by his father against defendant, David Siegrist, a friend who had accompanied Farwell during the evening in which the decedent received injuries which ultimately cause his death three days later. The question before us is whether the defendant, considering his relationship with the decedent and the activity they jointly experienced on the evening of August 26—27, 1966, by his conduct voluntarily or otherwise assumed, or should have assumed, the duty of rendering medical or other assistance to the deceased. We find that defendant had no obligation to assume, nor did he assume, such a duty.
The facts of the case are accurately set forth in the Court of Appeals opinion.
‘Factually, it appears that, on August 26, 1966, Richard Murray Farwell, deceased eighteen-year-old son of the plaintiff, visited the home of his friend, David Siegrist, a sixteen-year-old; that evening they drove to a trailer rental lot, where Siegrist was returning an automobile he had borrowed from a friend who was employed by the rental agency.
‘Siegrist and Farwell planned to wait in the car until the friend had finished work and then ‘drive around, ‘stopping at various restaurants and drive-ins. While they were waiting, Seigrist estimated that they consumed ‘four or five’ beers each. Shortly before nine o’clock p.m., two teenage girls walked past the car. After an unsuccessful attempt to engage them in conversation, Farwell left the car and followed the girls; Siegrist got out of the car and followed Farwell.
‘When the girls reached a restaurant a short distance down the street, they apparently complained to those present that they were being followed. Defendants Ingland, Brock, Donald Keaton, Daniel Keaton, and at least two others in the restaurant began to chase Farwell and Siegrist, both of whom ran back to the trailer lot. Siegrist escaped by ducking into the trailer rental office, where he requested those inside to assist Farwell. They stepped out of the office and were confronted by the group which had been chasing Siegrist and Farwell. The two groups faced each other, but no violence ensued, and the two groups scattered.
‘It was then discovered for the first time that Farwell had been caught and beaten by those who had been pursuing him and Siegrist; Farwell was found underneath his automobile in the lot.
‘Farwell was taken to the trailer rental office, where Siegrist gave him a plastic bag full of ice for his injuries. Shortly thereafter, Farwell and Siegrist left the rental office and, between ten o’clock p.m. and midnight, they visited four different drive-in restaurants. While en route from the third to the fourth restaurant, Farwell stated that he wanted to lie down, climbed into the back seat, and went to sleep. Around midnight, Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway, and attempted to rouse Farwell. When the latter merely made a sound as ‘if in a deep sleep’, Siegrist left with a friend who had followed him to the grandparents’ house. The next morning, Farwell was found by his grandparents, apparently taken to a hospital, and died of an epidural hematoma.
‘At the close of plaintiff’s proofs, defendant Siegrist moved for a directed verdict on the grounds that he had no duty to obtain medical assistance for Farwell as a matter of law. In the alternative, the motion was based upon the proposition that plaintiff failed to establish that any conduct on the part of Siegrist proximately caused Farwell’s death. The motion was denied.’[c]
Following the jury verdict of \$15,000 in favor of the plaintiff, defendant, arguing that the verdict was inconsistent with the weight of the evidence, moved for and was denied a judgment notwithstanding the verdict. The decision of the trial court was reversed by the Court of Appeals which found that the defendant never assumed, voluntarily or otherwise, the duty of obtaining medical assistance for the deceased. The Court stated that the facts in no way indicated that defendant knew, or should have known, that immediate medical attention was required. Consequently, as a matter of law the Court determined that defendant was under no duty to obtain medical treatment for the decedent.
Plaintiff argues that once having voluntarily undertaken the duty of caring for decedent, defendant could not discontinue such assistance if, in so doing, he left the decedent in a worse position than when such duty was assumed. Defendant’s knowledge of the seriousness of decedent’s injury and the failure to advise decedent’s grandparents, the close personal relationship that existed between defendant and the decedent, and the supposition that the decedent relied upon defendant for assistance leads plaintiff to conclude that defendant did not act ‘with the reasonable prudence and care of a reasonable man in the same or like circumstances’. Defendant’s position is that there was no volunteered assumption of duty to care for the safety of the decedent. He argues that the facts within his knowledge on the evening of August 26, 1966, and the evidence introduced at trial failed to establish that defendant should have seen that Richard Farwell had suffered a potentially fatal injury requiring immediate attention.
Defendant did not voluntarily assume the duty of caring for the decedent’s safety. Nor did the circumstances which existed on the evening of August 26, 1966, impose such a duty. Testimony revealed that only a qualified physician would have reason to suspect that Farwell had suffered an injury which required immediate medical attention. The decedent never complained of pain and, in fact, had expressed a desire to retaliate against his attackers. Defendant’s inability to arouse the decedent upon arriving at his grandparents’ home does not permit us to infer, as does plaintiff, that defendant knew or should have known that the deceased was seriously injured.[7] While it might have been more prudent for the defendant to insure that the decedent was safely in the house prior to leaving, we cannot say that defendant acted unreasonably in permitting Farwell to spend the night asleep[8] in the back seat of his car.
The close relationship between defendant and the decedent is said to establish a legal duty upon defendant to obtain assistance for the decedent. No authority is cited for this proposition other than the public policy observation that the interest of society would be benefited if its members were required to assist one another. This is not the appropriate case to establish a standard of conduct requiring one to legally assume the duty of insuring [sic] the safety of another. Recognizing that legal commentaries have expressed moral outrage at those decisions[9] which permit one to refuse aid to another whose life may be in peril, we cannot say that, considering the relationship between these two parties and the existing circumstances, defendant acted in an unreasonable manner.[10]
Plaintiff believes that a legal duty to aid others should exist where such assistance greatly benefits society and only a reasonable burden is imposed upon those in a position to help. He contends further that the determination of the existence of a duty must rest with the jury where questions of foreseeability and the relationship of the parties are primary considerations.
It is clear that defendant’s nonfeasance, or the ‘passive inaction or a failure to take steps to protect (the decedent) from harm’[11] is urged as being the proximate cause of Farwell’s death. We must reject plaintiff’s proposition which elevates a moral obligation to the level of a legal duty where, as here, the facts within defendant’s knowledge in no way indicated that immediate medical attention was necessary and the relationship between the parties imposes no affirmative duty to render assistance. See Steckman v. Silver Moon, Inc., 77 S.D. 206, 90 N.W.2d 170, 64 A.L.R.2d 1171 (1958). The posture of this case does not permit us to create a legal duty upon one to render assistance to another injured or imperiled party where the initial injury was not caused by the person upon whom the duty is sought to be imposed.
The relationship of the parties and the question of foreseeability does not require that the jury, rather than the court, determine whether a legal duty exists. We are in agreement with the general principle advanced by plaintiff that the question of negligence is one of law for the court only when the facts are such that all reasonable men must draw the same conclusion.[12] However, this principle becomes operative only after the court establishes *298 that a legal duty is owed by one party to another. Prosser’s analysis of the role of the court and jury on questions of legal duty, recently quoted in Moning v. Alfono, Mich. (1975), bears repeating:
‘The existence of a duty [***] is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. * * * A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant,’ Prosser, Torts (4th ed.), s 37, p. 206.
Michigan recognizes that the question of duty is to be resolved by the court rather than the jury. [c] The Court of Appeals properly decided as a matter of law that defendant owed no duty to the deceased.
We would affirm.
Note 1. Why do you think the dissent goes to the trouble of revisiting and re-narrating the facts?
Note 2. Wingman Liability. This case has come to be cited for the creation of something called “wingman liability”—one owes a duty to one’s co-adventurer or “wingman” for the evening, even when one generally does not owe a duty of care to one’s fellow travelers in the world. It goes beyond simply owing a duty of care for one’s friends, very generally; instead, it seems to impose liability for harms that befall one’s companion for that evening, if one were in a position to curb or prevent those harms. What does that rule do to life on many residential college campuses? Put another way, what would the rule do to life on such campuses if legal rules were things that meaningfully shaped the conduct of actors in that age group (whether rules do or don’t is an open question, but assume for the moment that students knew about this rule and its consequences) … would anything change, in your view?
Note 3.Duty as Relational versus Duty as Act-Centered. Duty is often considered categorically, in terms of classes of actors or entities who owe duties to other classes of actors or entities. But in some cases, courts find particularized duties to given individuals. Should a therapist aware of a specific deadly threat by their client to a third party outside their care be found to owe a duty to that threatened individual? (See supra, Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 340 (Cal. 1976) (yes). Should an adulterer aware of a sexually transmitted disease be found liable to the spouse of his lover to refrain from transmitting it to him? (Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989) (yes).
If foreseeability is the rationale behind both of these instances, should it matter how the court crafts its decision and how broad a duty it defines? In Tarasoff, the court created a broad duty on any psychologists or relevant social workers to all foreseeable nonpatients at risk of credible attack by a patient. In Mussivand by contrast, the court found a specific duty ran between the parties but did not articulate a broader class. How far should foreseeability go in establishing duty and how granular should courts get? Decision by a judge can enable a broadly defined scope of foreseeability whereas determination by a jury at the proximate cause stage requires case-sensitive decisionmaking that will necessarily be narrower. While the study of proximate cause is still ahead of you, it is important to begin to see the significance of defining the scope of tort law and allocating decisional authority to the judge (to decide the case as a function of duty) or the jury (to decide it as a function of proximate cause).
One critique of the notion of duty as relational (associated with Cardozo’s opinion in Palsgraf) argues that the relational theory does not align with how people act, which is better captured in an act-centered view (associated with Andrews’ dissent). Prominent torts scholars elaborate on this difference as follows:
In most circumstances, one does not act toward others at all. If one considers doing an act–driving a motorcycle, going for a jog, shooting a gun, or even having sex–one typically considers only whether the act might create a risk generally. If so, then one feels an obligation to take care in doing the act. Of course, once one is motivated by a sense of obligation, one might then consider the number, proximity, and vulnerability of others in determining what constraints on an activity might be required. This second step in one’s thinking, however, is an analysis of reasonableness–a matter for breach, not duty. Obligation-based duty reasoning seeks the internal—albeit objective—perspective of a person in the defendant’s position at the time of acting. …[W]e think that obligations to act reasonably are most accurately described as act centered and nonrelational. … Returning to the facts of Mussivand, it would seem callous and strange to say that one owes an obligation to avoid infecting one’s sexual partner [under a relational view of duty narrowed as under Mussivand], but no obligation to avoid spurring the infection of an entire community [under an act-centered nonrelational approach to duty].
W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. Cal. L. Rev. 671, 720 (2008) (citations omitted and emphasis added).
Which seems to you the better approach, at this point? Does your answer depend on who makes the determination, judge or jury? To what extent does duty inevitably begin to entail discussions of breach of that duty and inquiries into the defendant’s conduct? How does this inquiry change—and how should it change—over time?
Exceptions to the No Duty to Rescue Rule
The Restatement sets out clear exceptions under which a duty to rescue arises. The Restatement (Second) of Torts § 314 makes clear that “The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”
Section 314A of the Restatement (Second) of Torts provides the following exceptions to the general rule that one person need not assist another:
§ 314A. Special Relations Giving Rise to Duty to Aid or Protect
(1) A common carrier is under a duty to its passengers to take reasonable action:
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.
The duty that arises under Section 314A exists because of the special relationship between the parties. Restatement § 314A, cmt. b. The relationships listed in the rule are not intended to be exclusive, id. Nevertheless, some courts have restricted the application of § 314A to business invitees.
The Restatement illustrates contexts in which arise both common law and statutory exceptions to that general “no duty to rescue” rule. For instance, an entity may have a duty to give first aid or assist someone with whom it stands in a special relationship. Other examples provided by the Restatement include a common carrier exception (recall the doctrine imposing a higher duty on common carriers first seen in Gulf v. Luther); an innkeeper (on similar grounds as common carriers); a possessor of land; and someone who undertakes custody of another. In addition, courts tend to find such duties when a special relationship exists (think parent/child, employer/employee, caregiver/dependent, close friends, perhaps even teacher/student). Special duties can also arise by contract (employment contracts, or contracts to provide services) as well as through certain other relationships governed by legal principles, such as those shaping property ownership and imposing premises liability in certain instances.
Duties of Common Carriers and Innkeepers
The next case revisits the common carrier doctrine (which you saw in Gulf v.Luther). Historically, common carries and innkeepers were subject to a heightened duty of care as reflected in the Restatement’s § 314(A). Bullock v. Tamiami explores that duty and the standard of reasonable care implied by such a duty in the context of the segregated South. The Civil Rights Movement would ultimately force an end to legally permitted segregation. However, in Bullock, you will find outright racism (and outdated language) as well as facts involving violent assault for which the law provides a remedy on the basis of a heightened duty.
(266 F.2d 326)
The appellants are Negroes, British subjects, natives of Jamaica, married to each other, and in their early fifties. For more than twenty years the husband has been a minister of the Church of England. The wife is a musician and teacher. Racial segregation is not practiced in the island of Jamaica.
Prior to 1956, the appellants had left that island on only one trip and that was to European countries and South American countries which did not segregate the races. They were not familiar with the racial segregation practiced in the Southern part of the United States.
In August 1956, they decided to make an extended visit to the United States, landing in Miami and going by bus first to Kansas City and then to New York. They made arrangements for the trip through the Mountain Travel Service before leaving Jamaica and bought tickets over the appellee’s bus line. When the bus arrived in Perry, Florida, they were sitting together in the forward part of the bus usually occupied by white passengers. The husband was dark or black, while the wife, though a Negress, appeared to be a white woman.
At Perry, Florida, one Milton Poppell entered the bus and violently assaulted and beat the husband and slapped the wife. The circumstances are well described in the testimony of Poppell, quoted in the margin.[13] Other evidentiary *329 facts are stated in some detail in the opinion of the district court reported in 162 F. Supp. at page 203 et seq.
After reaching New York, the appellants brought suit against the appellee in a New York State Court, claiming that the appellee had breached the duties owed to them as passengers by omitting to warn them of a foreseeable danger, by failing to protect them from that danger, and by willfully, or at least negligently, aggravating the danger. The appellee, incorporated under the laws of Florida, being sued by citizens and subjects of *330 Great Britain, had the case removed to the United States District Court for the Eastern District of New York [Under 1332]. That Court transferred the action to the United States District Court for the Northern District of Florida [Under 28 U.S.C.A. § 1404].
There the case was tried to the court without a jury. After fairly finding the evidentiary facts in a manner to which the appellants take only minor exceptions, the district court entered judgment for the defendant, feeling that the law of the State of Florida required it to do so, and said in part:
‘In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, the Florida Supreme Court held that a carrier was not liable to a passenger for an unprovoked and illegal assault in cases such as this case. Without regard to the views of this Court as to what the law should be in such a case as this the decision of this Court is completely controlled by the decision of the Supreme Court of Florida in the case cited above. ‘Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,’ Bullock v. Tamiami Trail Tours, D.C.N.D. Fla.1958.
We are not in agreement with the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier. In so far as those ultimate facts are simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, they are subject to review by this Court free from the restraining influence of the ‘clearly erroneous’ rule, Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; [c]. To the extent that the inference of negligence is controlled by Rule 52(a), supra, this Court, on the entire evidence, ‘is left with the definite and firm conviction that a mistake has been committed.’ [c].
In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the case relied upon by the district court as dispositive of the case at bar, a female passenger was assaulted by a male passenger in a Pullman berth, they being the only two occupants of the car. Holding that the plaintiff’s proof failed to support her allegations that a porter and conductor heard her calls and bells in time to have prevented the assault, the court stated:
‘The liability of the carrier in such case rests, not upon the tort of the passenger, but upon the negligent omission of the carrier through its servants to prevent the tort being committed. A failure to do anything which could have been done by the servant to prevent the injury renders the carrier liable. But to do something to prevent an injury resulting from an assault by a fellow passenger implies knowledge on the part of the servant that the act is contemplated by the stranger, or by due diligence the servant could have obtained such knowledge, or had the opportunity to acquire it sufficiently long in advance of its infliction to have prevented it with the force at his command. [c]
‘In guarding a passenger from a danger which is not usual or not incident to ordinary travel the carrier is held to the use of ordinary and reasonable care and diligence. It is the failure of the carrier through its agents to afford the required protection, after they had reasonable grounds for believing that violence or the insult was imminent, upon which the liability of the carrier rests. It is not the fact of injury to the passenger that fixes the carrier’s liability. The injury must have been of such character and inflicted under such circumstances as that it might *331 have been reasonably anticipated or naturally expected to occur.’ [c]
In Kenan v. Houstoun, 1952, 150 Fla. 357, where, after alighting from the Florida East Coast train, plaintiff was struck on the legs by an ejection of steam from a nearby L&N train causing her to move about rapidly and fall over baggage, the court, in quashing a judgment against the Florida East Coast Railway, stated:
‘* * * When it appears that the agency which caused the injury was other than defendant or its agents the plaintiff must prove that defendant knew or by the exercise of ordinary care could have known of it in time to remove the cause of the injury. [c]
‘It is settled law that under the facts stated the Florida East Coast was bound to furnish Mrs. Houstoun reasonably safe facilities for leaving the train and to remain in the station but unless said company or its agents were in some way responsible or could have foreseen and prevented the accident, it cannot be held responsible for injury caused by the negligent act of a third person. In this case, the L. and N. Railway was the third person and we think was responsible for the accident. It was in no way attributable to the negligence of petitioner nor do we know of any criterion by which it could have been put on notice of it. It had not happened before and the character of it was of such a nature that it could not have been reasonably foreseen.’ [c]
Therefore, in Hall v. Seaboard Air Line Ry. Co. and Kenan v. Houstoun, supra, the rule may be generally stated that a carrier is liable for injury to its passenger caused by a fellow passenger or a third party if such injury by its nature could have been ‘reasonably anticipated’ or ‘naturally expected to occur’ or ‘reasonably foreseen’ in time to have prevented the injury. (84 Fla. 9, 93 So. 157.) If the injury could have been reasonably anticipated in time to have prevented its occurrence, the carrier is subjected to the highest degree of care to its passenger either to protect him from or to warn him of the danger.[14]
It was impossible for the driver to have protected the Bullocks from Poppell’s assault after his intent became evident, but we think that the district court was clearly erroneous in holding that Tamiami could not have reasonably anticipated or foreseen the danger to the Bullocks in time to have at least warned them of its imminence. We can visualize no stronger case than this to show a situation where two bus drivers and the bus company officials should have reasonably anticipated that mischief was hovering about and that the Bullocks were in some danger.
The first driver testified that many people in West Florida would not approve of the Bullocks’ being seated together toward the front of the bus. Driver Cunningham stated that there would have been less chance of trouble if the Bullocks had been sitting in the back. The first driver, after explaining to a complaining passenger that he could not move the Bullocks, heard another passenger say something like ‘they probably will move on down the line.’ Both drivers had actual notice of the two Company bulletins dated January 31, 1953, and January 23, 1956, the latter plainly warning the drivers of possible racial disturbances.[15] Certainly, the first driver *332 and, no doubt, Cunningham knew the Bullocks were Jamaicans and British Nationals, and it is logical to infer that the drivers knew the Bullocks were not experienced with ‘southern tradition.’ All of the appellee’s witnesses testified that this was the first instance they knew of in that part of the country where a Negro man and a seemingly white woman were seated together on a public carrier.
Furthermore, this Court will take judicial notice (as the district court should have done) of the commonly and generally known fact that the folkways prevalent in Taylor County, Florida, the county seat being Perry, would cause a reasonable man, familiar with local customs, to anticipate that violence might result if a Negro man and a seemingly white woman should ride into the county seated together toward the front of an interurban bus.[16]
The next question is whether or not Tamiami, so charged with a duty of foreseeing danger to its passengers, took proper precautions to avoid such danger by the ‘utmost care and diligence of very cautious persons.’ We think that Tamiami failed to exercise this care in several ways. It should have instructed its agency in Jamaica to advise Negroes applying for passage through the southern part of the United States of the South’s tradition of segregation. It should[17] have instructed its driver to advise Negroes who were obviously foreigners, here known to be such, of segregation customs. The driver should have explained to the Bullocks his reasons for wanting them to move. Above all, the driver should not, either willfully or negligently, have informed the assailant of the Bullocks’ position on the bus and of their apparent color and lack of color.
The district court found, at least impliedly, that Tamiami was not guilty of any willful or aggravated misconduct justifying the imposition of punitive damages, and to that extent its finding is not clearly erroneous. Upon the present record, however, we conclude that the danger should reasonably have been foreseen by Tamiami in time to act with the utmost care to avoid injury to its passengers, particularly by warning them and by not doing foolish things to increase their danger, and that Tamiami breached the duty owed to its passengers, the appellants. The judgment is therefore reversed and the cause remanded with directions[18] to enter judgment for each of the plaintiffs, appellants, and upon the evidence contained in this record, to award each of them reasonable compensatory damages, including damages for physical injury and mental suffering and humiliation.[19]
Reversed and remanded with directions.
Note 1. Reading the assailant’s testimony included in the court’s footnote makes his culpability unmistakable. He boarded the bus—despite having his car with him—only after learning from the bus driver that a supposedly interracial couple was on the bus and not following the rules regarding where on the bus they were allowed to sit. He didn’t give the Bullocks notice or a chance to move. He bought a ticket expressly in order to pick a fight that had been as much as invited by the bus driver. The court treats the assailant’s actions as intentionally tortious and the bus driver’s conduct as negligent (“not guilty of any willful or aggravated misconduct justifying the imposition of punitive damages”). Do you agree? Based on your study of the intentional torts and requisite intent levels, at what point should the bus driver, too, be deemed to have participated or spurred on Poppell? What facts, if any, convert the driver’s conduct from unreasonable to intentional?
Note 2. Judicial Method, Rhetoric and Tone. On certain fact patterns in which an obvious wrong has been committed, it can be easy to feel intuitively frustrated by the law’s slow analytic process of following particular steps in formal analysis. To what extent is “formalist” analysis appropriate when actions are so plainly discriminatory? Should the law be permitted to focus on function over form in cases in which significant dignitary rights are at stake? If so, what contexts seem to you to be appropriate? What responsibilities does a court have to identify when conduct goes well beyond the acceptable? If we assumed the substance of the outcome were the same in 2021 as it was back in 1959, how would the rhetoric of this court sound, do you think? Often, contemporary courts use a tone that seems to aspire to “colorblindness” rather than expressly calling out dynamics of race. Why might this be the case? Should this change? Why or why not, and how so?
Note 3. One of the leading scholars on questions of race and gender in tort law has written that the doctrinal reasoning in Bullock reflects the race politics of its era:
The duty of the carrier, then, was specific to that time and place, and was specifically based on anticipating racist attacks. All of the bus company’s witnesses stated that this was the first time they knew of a black man and a white woman sitting together on a bus or train in that region. The attacks should have been anticipated, not simply because a black person was sitting in the front of the bus, but because the combination of “a Negro man and a seemingly white woman” sitting together in the front was obviously incendiary. The Fifth Circuit recognized this as a risk-creating combination of people, space, and circumstances. By contrast, the trial court ignored the volatile gender-race confluence and saw this assault as a fluke, as unforeseeable, and therefore something for which the bus company should not be liable. … To the trial court, the harm was unforeseeable, and thus the company had no duty to prevent it. [***] Both views about duty and foreseeability of risk are dependent on opposing empirical conclusions drawn by courts. Jennifer B. Wriggins, Toward A Feminist Revision of Torts, 13 Am. U. J. Gender Soc. Pol’y & L. 139, 150-151 (2005) (internal citations omitted).
It is somewhat difficult to reconcile these different perceptions of foreseeability without reference to the historical context and the particular social context of each court. Relatedly, what do you make of the lower court’s statement that it is bound, descriptively, by the law it must follow: “Without regard to the views of this Court as to what the law should be in such a case as this the decision of this Court is completely controlled by the decision of the Supreme Court of Florida in the case cited above.”
How does it square with the appellate court’s response: “We are not in agreement with the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier”?
Throughout this book, we have distinguished descriptive and normative accounts of law. Are there instances in which we ought to expect these two categories may blur? Does this blurring suggest that entrenched structural racism is a symptom of our legal system or a byproduct, or are there other possibilities for how the courts interpret the law here?
Note 4. The context of the case may seem to make its facts exceptional. However, plaintiffs continue to bring lawsuits charging common carriers with breach of duty to provide safe passage. In an era in which racial tensions have been heightened nationally for several years and many people rely on public transportation to get to their schools and jobs, what scope of duty do you think is appropriate for common carriers? Not all jurisdictions retain a heightened duty; for instance, New Jersey does so though New York imposes only a reasonable a duty of care. How far should common carriers be expected to go when unruly or dangerous passengers begin to make trouble for other passengers? Recall the foreseeability analysis of Walls v. Oxford Management.
Could the reasoning from Walls be applied in this context? A recent case suggests judicial willingness to hold such defendants to account even for conduct by third parties. The attacks on the passenger are violent and ugly in nature, and the court considered the policy issues explicitly and with laudable nuance. Consider as you read this excerpt of the case whether gender, race, class and age are likely to have played any role in the facts or in judicial analysis of the facts.
(245 N.J. 270)
[***] Every day, throughout this state, thousands of people take buses and trains to commute to work, visit family and friends, and travel to vacation spots. Those modes of transportation are known as common carriers. Passengers pay fares to common carriers to safely transport them to their destinations. Under the common law, privately owned carriers owe their passengers a heightened duty of care to act with the utmost caution to protect them, even from the wrongful acts of co-passengers – a duty to act as would a very careful and prudent person in light of the circumstances. [***] In this case, plaintiff Anasia Maison on her commute home from work took an NJ Transit bus. During the ride, a group of four to five teenagers verbally and physically harassed her as the bus driver silently watched and drove on. Despite the escalating threats and unruly behavior toward Maison, the bus driver did nothing – did not call out the teenagers, stop the bus, or contact *275 NJ Transit or the police. As one of the teenagers disembarked, he threw a bottle striking Maison in the forehead, causing a permanent and serious injury.
On July 21, 2013, Anasia Maison, a twenty-year-old college student, was working at a New York City pharmacy until her shift ended at 12:00 a.m. on July 22. On her way back home to Newark, she first took an NJ Transit train to Penn Station in Newark, arriving there at around 1:00 a.m. At Broad and Market Streets, she boarded an NJ Transit bus operated by defendant [bus driver] Coats. She paid her fare and took a seat towards the rear of the bus. Two rows behind her were four to five male teenagers. *277 Maison testified that as soon as the bus pulled away, she was struck on the side of her face by an unknown object “thrown very hard” by one of the teenagers. She turned to them and asked, “why are [you] bothering me?” One of the young men said to his friends that Maison “should ‘f’ one of them up.” A few seconds later, another object was thrown at her, but it hit only the chair. She turned again and asked the young men to stop harassing her. They told her “to shut the f**k up” and loudly hurled insults at her. In response, Maison admittedly used foul language, but the stream of profanities from the young men continued. Maison could see the bus driver, Coats, watching the commotion in his rearview mirror, but Coats kept driving.
When one of the teenagers brandished a knife, Maison said “out loud,” [sic] “I need help.”
Although she could not tell whether Coats heard her, she saw that he was peering at her through his rearview mirror. Frightened, Maison got up and moved toward the front of the bus, but when a passenger told her, “[you] better not come up here,” she returned to her seat where the insults continued to rain down on her. She tried to make a call from her cell phone, but the signal failed – and the attempted call caught the attention of the youths. A minute or two later, one of the teenagers rang the bell for the bus to stop. As they were leaving through the rear side door of the bus, Maison heard a passenger tell one of them, “don’t do it” – and then, all of a sudden, a bottle struck her in the face. As she bled from the forehead, the youths continued to taunt and threaten her through the open door of the bus.
Maison called out for help, yelling: “I need ambulance. I need police.” Coats remained in his seat. A passenger gave her a cell phone, which she used to call the police and an ambulance. After the ambulance arrived, Maison was transported to Beth Israel Hospital, where she received twenty-two stitches to treat the wound to her forehead – the site now of a permanent scar that has left her self-conscious about her appearance. In the aftermath *278 of the attack, she suffered from very bad headaches and delayed her college graduation.
In his testimony, Coats recalled that Maison boarded the bus at about 1:14 a.m. and, immediately afterwards, four to five young men entered and took seats behind her. As he drove, he observed through his rearview mirror the young men and Maison “cursing back and forth” –“a lot of b’s and f’s.” [fn] A passenger interceded and said to the young men, words to the effect of, “don’t disrespect her, don’t call her the b word.” According to Coats, Maison “was handling herself very well.” He monitored the situation and knew that there was a threat to Maison. He acknowledged that his job was to get his passengers “from point A to B safely” but also stated in his deposition testimony read to the jury that “it’s not my job to get involved. First of all, my safety comes first.”
Seven to eight minutes into the drive from Broad and Market Streets, where the verbal conflict began, someone pressed the bell for the Hayes Circle stop. Arriving there, Coats opened the front and rear doors, and then he heard “a smack,” “glass breaking,” and “Maison screaming.” He looked back and saw that Maison had been hit and was bleeding profusely and that a passenger was consoling her. Coats got up, observed the shattered pieces of a liquor bottle on the ground and seats, and asked if she wanted an ambulance or the police. She “screamed,” “yes.”
Coats, however, did not call directly for an ambulance or the police. He followed NJ Transit’s procedure and pushed a button to call NJ Transit’s control center. Coats waited for about fifteen minutes before the control center returned his call. The control center then contacted the police and emergency medical services. Coats did not believe that NJ Transit policy permitted him to use his cell phone to contact first responders.
*279 Coats stated that he never observed the young men throw objects at Maison or flash a knife, never heard Maison call out to him, and never saw her get out of her seat. He admitted that he monitored the situation in the rear of the bus during the seven- to eight-minute ride to Hayes Circle and that he did not stop the bus, tell the young men to “knock it off,” call the police, or contact NJ Transit’s control center until after Maison was hit with the bottle.
The police never apprehended the young men who tormented and assaulted Maison. [***]
[The bus driver attempted at trial to state that he had merely been enforcing the law. A footnote calls that into question] “The court asked defendants’ counsel what law the bus driver was “executing or enforcing.” He responded, “[c]andidly I’m at a loss to articulate one.””
[***] The jury was charged on the law applicable to common carriers, as set forth in Model Jury Charges (Civil), 5.73(A)(2), “Carriers for Hire” (approved June 1988). The court instructed the jury that
[a] common carrier must exercise a high degree of care to protect its passengers from dangers that are known or reasonably foreseeable. Carriers must use the u[t]most caution to protect their passengers. The kind of caution that is characteristic of a very careful and prudent person. A carrier must act with the highest possible care consistent with the nature of the undertaking involved. This includes the duty to protect passengers from wrongful acts of co-passengers if the u[t]most care could have prevented those acts from injuring a passenger.
If a danger was known or reasonably could have been anticipated[,] the carrier has a duty to protect its passenger from any injury that could be caused by that danger.
*280 The jury returned a verdict finding both NJ Transit and Coats liable. The jury also found that Maison sustained a permanent disfigurement from her injury and awarded her \$1,800,000 in damages. [***] The Appellate Division affirmed in part and reversed in part, remanding for a new trial only on the allocation of fault between the bottle thrower and defendants. [fn] [cc] The Appellate Division concluded that the trial court correctly held NJ Transit to “the common carrier standard of negligence” and observed that “our case law has viewed bus lines generally, and public transit systems specifically, as common carriers for many years.” [***]
Last, the Appellate Division determined that the trial court erred in not placing the bottle thrower on the verdict sheet to allow for the allocation of fault among the tortfeasors. [c] [W]e affirm the Appellate Division, including its determination that the damages award should stand and that the new jury should not be informed about the amount of the award.
Note 1. The court reasons that “If a danger was known or reasonably could have been anticipated[,] the carrier has a duty to protect its passenger from any injury that could be caused by that danger.” Is this merely following the scope and logic of Tarasoff or does it expand upon that earlier case?
Note 2. What does it mean to “plac[e] the bottle thrower on the verdict sheet,” both practically and legally?
Note 3. The court ruled that the damages award stands and the jury should not be informed of the amount. Why? What does the court presume may happen? What concerns are animating this decision to let the award stand but also to allow its potential reallocation?
Duties Related to Premises Liability
Special rules that vary by jurisdiction and circumstance define the duties of possessors of land to those who enter it, as illustrated above in the Restatement’s Section 314A. Most jurisdictions follow the traditional rule at common law and determine the duties of possessors of land based on the status of the entrant: a trespasser, a licensee, or an invitee. The distinctions among duties of care owed to these three categories of entrants arose due to the social hierarchy of the feudal system: medieval landowners held land and were thought to deserve the right to enjoy it without concern for protecting against injury to those who entered their land without permission. William Prosser, Law of Torts 359 (4th ed. 1971).
Roughly 22 jurisdictions have either abolished or modified the status-based system, by judicial decision or statute or both. Most of these follow a landmark ruling in California that paved the way for the modern approach, which mandates that a duty of reasonable care is owed to all entrants regardless of status but applies a series of factors that particularize the duty further.
Note that for our purposes, “owners,” “possessors” and “occupiers” of land are used interchangeably and courts and legislatures take varying approaches on whether they use one or more of the terms. The primary point for you to take from that is that a person need not own property to be liable for harm that occurs on it, if they are otherwise the possessor or occupier of that property. (Usually a possessor means the person presently permitted to be there, such as a renter or long-term guest; an occupier is the person who is presently inhabiting the premises whether or not they have a legal right to do so).
Traditional Status-Based Approach. Idaho, whose slip-and-fall case, McDonald v. Safeway, is assigned in Module 3 (under Circumstantial Evidence), sets out the following rules:
(1) Invitees are owed the highest duty of care in premises liability, and there are two avenues for a plaintiff to establish that he is an invitee. A plaintiff can establish that he was on the premises “for a purpose connected with the business conducted on the land,” or show that “it can reasonably be said that the visit may confer a business, commercial, monetary or other tangible benefit to the landowner.” [c] Dupuis v. E. Idaho Health Servs., Inc., No. 47917, 2021 WL 1416551, at *5 (Idaho Apr. 15, 2021)
(2) A licensee is a visitor who goes upon the premises of another with the consent of the landowner in pursuit of the visitor’s purpose.’” [c] Id.
This means that in Idaho, a landowner owes an invitee the duty to keep the premises in a reasonably safe condition and or to warn the invitee of any concealed or hidden dangers. Often, litigation centers on whether the landowner knew or should have known of a particular risk. A second issue that arises with some frequency is whether the invitee exceeded the scope of their permitted access. For instance, if a customer in a grocery store sneaks into the back room to use the employee restroom and trips over a carelessly placed mop, the customer may be treated not as an invitee but as a licensee or possibly a trespasser (both the facts and the specific jurisdiction’s case law matter to the analytical outcome).
Correspondingly, in Idaho, a property owner owes a licensee the duty to share knowledge of dangerous conditions or activities on the land, usually through warning signs or some other means of putting entrants on notice. This duty specifies a lower standard of care to a licensee than to an invitee; the land owner need not fix a dangerous condition with respect to a licensee’s presence on their premises but must merely warn of it once it is discovered (under a subjective standard called “actual knowledge”) or ought to have been discovered by the owner (under an objective standard sometimes called “constructive knowledge”). The distinction between the first two categories, then, is that invitees are people whom a business invites onto their premises as part of its provision of services or goods; invitees are analogous to customers. Licensees are those who are merely permitted to be on the premises, more like guests or visitors. The rationale for the higher standard of care towards invitees is that the owner is seeking to profit off the invitee’s presence on their premises and thus the invitee ought to be able to expect reasonable efforts to make the premises safe.
(3) If entrants on land are neither invitees nor licensees, they are typically classified as trespassers:
Any one who goes upon the private property of another without lawful authority or without permission or invitation, express or implied, is a trespasser to whom the landowner owes no legal duty until his presence is discovered. He is only required to refrain from wanton or wilfull [sic] acts which occasion injury. Bicandi v. Boise Payette Lumber Co., 55 Idaho 543, 44 P.2d 1103, 1106 (1935)
Owners of land owe trespassers the lowest duty, given the basic principle that such entrants are neither invited nor permitted to enter. Indeed, it is possible owners neither know nor have reason to know that such entrants are present. However, “once the presence of the trespasser becomes known or reasonably could have been anticipated, the land owner has a duty not to injure the trespasser by any intentional or reckless act. [***] This standard of conduct prohibits the owner from engaging in ‘intentional or reckless actions, taken under circumstances where the actor knew or should have known that the actions not only created an unreasonable risk of harm to another, but involved a high degree of probability that such harm would actually result.’” Mowers v. Union Pac. R.R. Co., No. 4:16-CV-00177-CWD, 2016 WL 6246301, at *3 (D. Idaho Oct. 25, 2016)(citations omitted)
Idaho’s rules are representative of the common law rules and the majority of jurisdictions retain the “tripartite” system of classifying duties according to the status of the entrant.
Modern Approach. In Rowland v. Christian, plaintiff James Rowland was a guest in defendant Nancy Christian’s apartment. When he used the bathroom faucet, the porcelain handle broke, causing serious injury to his hand which included severing tendons and nerves and which led to Rowland’s incurring \$100,000 in general damages. It did not appear that the crack in the handle was obvious to ordinary inspection or concealed although Rowland had used the sink before. Christian knew for two weeks that it was broken and had asked the landlord to repair it but failed to warn Rowland. Students often wonder why a guest would sue their host and whether other defendants were not available. First, duties of “possessors” of land reach more broadly than owners; as a renter, Christian had certain duties that were distinct from those of the landowner. Second, the Supreme Court’s opinion does not clarify that the two did not know each other well, a fact that was included in the appellate court’s opinion. They were introduced through a mutual friend and Christian had agreed to drive Rowland to the airport so he could board a plane. For reasons the record does not divulge, either she invited him to her apartment beforehand and he was injured using the bathroom while waiting for the defendant to get ready for the drive to the airport, or he appeared at her apartment to ask for a ride. (The facts appear contested on this point.) The time he injured his hand was not the first time using the faucet but the record does not contain many more clues beyond that. The trial court granted summary judgment and the appellate court somewhat reluctantly affirmed, noting that on the record it did not believe it could change the law but implying its desire to do so. (“We are mindful of the criticisms directed at the California rule. [c] In the present case, however, the scope of our review is defined by the rules applicable to summary judgments. Acting within a context thus limited, we have concluded that substantive law cannot be changed on the narrow evidentiary base presented by this record.” Rowland v. Christian, 63 Cal. Rptr. 98, 104 (Ct. App. 1967)).
The appellate court’s analysis focused on whether a known condition such as a broken faucet handle was analogous to a trap since the “trap exception” could give rise to a duty to warn entrants on land and in some cases a duty to remedy or “protect” them. Its analysis reflects a formalistic emphasis on remaining within the contours of existing law. The Supreme Court took a different tack, treating the case as a paradigmatic example of the fundamental principle that everyone has a duty to refrain from causing harm to others. A civil statute in California had long codified that rule, lending further support for the court’s reasoning.
It’s worth noting that one of the leading proponents of the modern view of generalized duty, William Lloyd Prosser, was the Dean of UC Berkeley’s law school from 1948-1961 and then a professor at UC Hastings Law School. He was a venerated jurist nationally as well as in California in particular. Through his treatise, textbook and massive contributions to the Restatements on Torts, he directly or indirectly shaped the views of many students, practitioners, professors and judges. It is hard to overstate his influence on tort law (then and now). Recall that at early common law, the general rule was no duty absent contract, privity or some other justification for creating an affirmative duty. From Prosser’s reformulated approach to duty—that everyone had a general duty unless some exception existed—the Rowland court could argue that the tripartite system of status-biased duties effectively created a set of immunities that reduced the general duty. Under the old view of duty, the tripartite system could be cast as adding or creating duties rather than limiting them. This new reading inverted that description of duties and immunities. This inversion is key to understanding the revolution Rowland brought about.
Rowland identified factors to consider in permitting a departure from the general duty rule and then pointed out how the status of the entrant was not dispositive in analyzing those factors. It cast the traditional system of defining limited duties as linked to historic rationales that had grown outdated:
The ordinary justification for the general rule severely restricting the occupier’s liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account. [c] An increasing regard for human safety has led to a retreat from this position, and an exception to the general rule limiting liability has been made as to active operations where an obligation to exercise reasonable care for the protection of the licensee has been imposed on the occupier of land. Id. at 114, 565.
Clearing away “the ancient concepts as to the liability of the occupier of land” and applying standard negligence analysis, it reversed the grant of summary judgment. The court held that because Christian appeared to be aware that the faucet handle was dangerous and had failed to warn or remedy, her behavior constituted negligence. The court reasoned as follows: “Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.” Id. at 120.
Even in the jurisdictions that have abandoned or modified status-based duties, subsequent courts often refer to the “Rowland factors” in analyzing the duties of possessors of land. Consequently, courts end up continuing to make some distinctions among entrants along factually nuanced, if not categorical lines. SeePerez v. S. Pac. Transportation Co., 218 Cal. App. 3d 462 (Ct. App. 1990) (“The status of a claimant at the time of his injury no longer affects the general duty of the possessor of property to exercise ordinary care with respect to reasonable foreseeable risks of personal injury to persons coming on the property. The possessor’s duty of ordinary care extends to invitees and trespassers alike, although the foreseeability of injury, and hence the degree of care required of a possessor, continues to be influenced by the likelihood that persons will be present on the property at a particular time and place, a likelihood normally considerably greater for invitees than for trespassers.”)
Given tort law’s propensities for fact-sensitive adjudication, can you see why? Cutting against that, since duty is ordinarily a question of law, not fact, is the modern view introducing unnecessary complexity in the form of these factual, rather than categorical inquiries?
A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and (7) consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (8) the availability, cost, and prevalence of insurance for the risk involved. Rowland v. Christian, supra, 69 Cal.Rptr. 98, 112–113. [enumeration added]
Which approach seems more sound, in your view, the status-based system of duties or a general duty informed by the Rowland factors? What do these factors add that is not already involved in duty analysis?
Expand On Your Understanding – Taco Bell Hypothetical
Duties Owed to Business Invitees in Traditional-Rule Jurisdictions
In these jurisdictions, business owners who profit from “invitees” coming onto their property owe those invitees a higher duty of care. But how high? A man entered a Taco Bell store to buy a soft drink. As he was paying, he suddenly fell backward, was knocked unconscious and began having a seizure. At trial, it was disputed whether or not the customer, Baker, received any help from Taco Bell after he came to. The employee claims she offered assistance and Baker stated that he did not need an ambulance. Baker then stood up and fell again, once again became unconscious, knocked out his four front teeth and cracked the seventh vertebra of his neck. When he regained consciousness, he was choking on the blood and teeth in his mouth. He stumbled out of the store and was able to get help elsewhere.
Question 1. Is a customer who has a seizure on a business’s premises owed a duty of reasonable care with respect to foreseeable harms? Descriptively? Review the language of Restatement § 314A, above.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. How about normatively? What arguments would you offer in support of your views?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Check Your Understanding (3-2)
Question 1.Rowland states that “the exceptions to those immunities, often do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of land.” Rowland v. Christian, 69 Cal. 2d 108, 116 (1968).
True or false: The word “should” here is normative, not descriptive.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Reflect On Your Understanding – Rowland v. Christian
Compare the two rationales offered below, drawn from Rowland’s majority and dissenting opinions. Which do you find more persuasive? Who is most likely to be better served by the arguments in each opinion? How does each serve or disserve the purposes of tort law?
(1) Rowland v. Christian, 69 Cal. 2d 108, 118 (1968) Majority opinion: “A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.”
(2) Rowland v. Christian, 69 Cal. 2d 108, 120 (1968) Dissent: In determining the liability of the occupier or owner of land for injuries, the distinctions between trespassers, licensees and invitees have been developed and applied by the courts over a period of many years. They supply a reasonable and workable approach to the problems involved, and one which provides the degree of stability and predictability so highly prized in the law. The unfortunate alternative, it appears to me, is the route taken by the majority in their opinion in this case; that such issues are to be decided on a case by case basis under the application of the basic law of negligence, bereft of the guiding principles and precedent which the law has heretofore attached by virtue of the relationship of the parties to one another.
Liability for negligence turns upon whether a duty of care is owed, and if so, the extent thereof. Who can doubt that the corner grocery, the large department store, or the financial institution owes a greater duty of care to one whom it has invited to enter its premises as a prospective customer of its wares or services than it owes to a trespasser seeking to enter after the close of business hours and for a nonbusiness or even an antagonistic purpose? I do not think it unreasonable or unfair that a social guest (classified by the law as a licensee, as was plaintiff here) should be obliged to take the premises in the same condition as his host finds them or permits them to be. Surely a homeowner should not be obliged to hover over his guests with warnings of possible dangers to be found in the condition of the home (e.g., waxed floors, slipping rugs, toys in unexpected places, etc., etc.). Yet today’s decision appears to open the door to potentially unlimited liability despite the purpose and circumstances motivating the plaintiff in entering the premises of another [***].
In my view, it is not a proper function of this court to overturn the learning, wisdom and experience of the past in this field. Sweeping modifications of tort liability law fall more suitably within the domain of the Legislature, before which all affected interests can be heard and which can enact statutes providing uniform standards and guidelines for the future.
Duties to Children. Landowners may owe children special duties, even when they trespass. The (best-ever-named) doctrine of Attractive Nuisance sets out specific duties to safeguard one’s land against known attractions and risks.
Restatement 2d Section 339 – Artificial Conditions Highly Dangerous to Trespassing Children – A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass,and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Under the attractive nuisance doctrine, trespassing children have the burden of proving that they did not anticipate the danger when entering the property; it is the expectation that their immaturity will make it difficult for them to understand the risk that justifies the doctrine. Otherwise, it will be assumed that they are ordinary trespassing thrillseekers who understood the risk and proceeded anyway. The plaintiff must also prove that it was feasible for the landowner to eliminate the dangerous condition. This may not mean removing something dangerous but it may require boarding it up or taking other steps to repair or limit access. The cases originally arose to protect children playing on railroads but the fact patterns have involved swimming in unbarricaded water or pools, diving from various structures, and other activities involving unsecured machinery.
Summary of Duties of Owners and Possessors of Land—Majority and Minority Approaches
Traditional “Tripartite” Approach (majority approach)
Status of Entrant
Business Invitee Duty to keep the premises in a reasonably safe condition and or to warn the invitee of any concealed or hidden dangers
Licensee Duty to warn of dangerous conditions or activities on the land
Trespasser Duty not to intentionally injure (e.g. through traps or spring guns).
No duty until trespasser’s presence is discovered or reasonably ought to have been discovered; then a duty to refrain from wanton and wilful conduct that could injure trespasser; in some jurisdictions, also a duty to warn of latent or hidden defects.
Children Duty to exercise reasonable care to eliminate dangerous conditions creating extraordinary risks of harm to children (“attractive nuisance doctrine”)
Modern Approach (CA) All Entrants Duty of reasonable care
Children Duty of reasonable care
Duties That Specify Particular Conduct
Implicit in discussions of duties owed to children and to specific classes of entrants under the traditional approach is that, in some instances, determining whether a duty exists and the standard of care it requires become interdependent questions. Put another way, in the area of limited duties, duty is sometimes articulated as a duty to doa specific thing—that is, as an act-centered kind of duty rather than a purely relational one.
Discussions of limited duty will often entail some specification of the standard of care or specific acts. Given this, you might consider whether such duty determinations should be shifted to the jury as a question of fact or retained for determination by the judge as duty questions usually are. One justification for retaining them as a question of law is that whole classes of actors may be similarly situated. Do Taco Bell and restaurants like it owe a duty to take particular steps to its business invitees? Do Carnival and other cruise ship operators owe a duty to take particular steps to keep customers on its cruises safe? In the next case, Carnival may have had a duty to do X with respect to Ms. Carroll but not a duty to do Y. Either way, it is beyond doubt that Carnival did have a duty to Ms. Carroll; the question is what that duty required of Carnival.
(955 F.3d 1260)
Elaine Carroll tripped over the leg of a lounge chair while she was walking through a narrow pathway on a Carnival cruise ship. She sued Carnival, alleging that it negligently failed to maintain a safe walkway and failed to warn her of that dangerous condition. The district court granted summary judgment in favor of Carnival on both claims, concluding that the condition was open and obvious and that Carnival lacked actual or constructive notice of the hazard. After review of the record and the parties’ briefs, and with the benefit of oral argument, we reverse. ***
In March of 2015, Mrs. Carroll and her husband Michael were passengers on board the Carnival Pride. On the first full day of the cruise, Mrs. and Mr. Carroll *1263 were walking to one of the restaurants, David’s Steakhouse, on Deck 11 of the ship. The outer glass wall of David’s Steakhouse is curved in the shape of a semi-circle. Lounge chairs are set up in a semi-circular shape along the curved glass wall of the restaurant.
To get to the restaurant, the Carrolls had to walk on a curved walkway between the foot-end of the row of lounge chairs (on their right side) and the ship’s railing (on their left side). When they initially approached the walkway, there were approximately two to three feet between the chairs and the railing, so they were able to walk side-by-side. At some point after passing the first chair, however, the distance between the chairs and the railway narrowed, so Mrs. Carroll’s husband walked in front of her and she followed behind him. While Mrs. Carroll was walking behind her husband, her right foot clipped the leg of one of the lounge chairs, causing her to fall and suffer injuries.
Mrs. Carroll sued Carnival for negligence. She asserted, among other things, that Carnival negligently maintained a dangerous condition—“lounge chairs that narrowed and protruded onto a pedestrian walkway”—and negligently failed to warn passengers of the danger associated with that condition. Carnival moved for summary judgment, arguing that the lounge chairs did not constitute a dangerous condition, and even if they did, it had no duty to warn of the condition for two reasons. First, the condition was open and obvious. Second, Carnival lacked notice of the hazard. Mrs. Carroll opposed the motion, responding that although the lounge chair that she tripped on was not hazardous in and of itself, the location of the lounge chairs and the manner in which they were arranged constituted a dangerous condition. She also argued that the condition was not open and obvious because, due to the layout of the lounge chairs and the narrowness of the path, she was forced walk behind her husband, obstructing her view. And she asserted that she did not need to prove that Carnival had notice of the hazard because it created the unsafe condition.
Both parties presented evidence in support of their positions, including the deposition testimony of Mrs. and Mr. Carroll and several Carnival employees. Mrs. Carroll also presented the affidavit of an expert, Randall Jaques, who opined that the walkway was unsafe and fell below industry standards.
[The district court granted Carnival’s motion for summary judgment, concluding that Carnival lacked notice of the danger but need not reach that issue because it found that Carnival had no duty warn Mrs. Carroll of the allegedly dangerous condition because it was open and obvious]. [***]
***Mrs. Carroll had to prove that (1) Carnival had a duty to protect her from a particular injury; (2) Carnival breached that duty; (3) the breach actually and proximately caused her injury; and (4) she suffered actual harm. [c] With respect to the duty element, a cruise line like Carnival owes its passengers “a ‘duty of reasonable care’ under the circumstances.” *** We begin by analyzing Mrs. Carroll’s claim that Carnival negligently failed to warn her of a dangerous condition, and then evaluate her claim that Carnival negligently failed to maintain a safe walkway. *** The question, therefore, is whether a reasonable person would have observed the chair leg and appreciated the risk of walking through the narrow passageway under the circumstances. [fn]
The district court concluded that Carnival had no duty to warn Mrs. Carroll of the dangers associated with the walkway because the “placement of deck chairs on an open deck, on a clear and sunny day, was an open and obvious condition.” In reaching this decision, the *1265 district court relied on Mrs. Carroll’s deposition testimony that she could have seen the chair leg had she looked down. The district court also relied on Mrs. Carroll’s testimony “that she did not walk behind her husband because the area narrowed, as her husband explained, but rather, because ‘you do that.’” But there was also evidence in the record—which the district court did not acknowledge—that Mrs. Carroll was forced to walk behind her husband after passing the first lounge chair because the walkway narrowed. Mrs. Carroll testified that, as a result, her view was blocked by her husband, who has a large profile, so she could not see the foot of the lounge chair that she tripped on nor around the curve of the walkway.
In our view, the district court erred by crediting some statements by Mrs. Carroll—which favored Carnival’s open and obvious argument—over her other statements that she was forced to follow behind her husband due the layout of the chairs and the narrowness of the walkway. Viewing the facts in the light most favorable to Mrs. Carroll, as we must, the record supports an inference that a reasonable person in Mrs. Carroll’s circumstances would not have observed the chair leg obstructing her path. There is a genuine dispute of material fact as to whether the danger associated with the walkway was open and obvious. After concluding that Carnival had no duty to warn Mrs. Carroll because the allegedly dangerous condition was open and obvious, the district court stated that it need not decide whether Carnival had actual or constructive notice of the condition. It nevertheless determined that Carnival lacked such notice. In reaching this conclusion, the district court again failed to view the evidence in the light most favorable to Mrs. Carroll and overlooked evidence in the record from which a reasonable jury could find that Carnival had notice. [fn]
Evidence that a ship owner has taken corrective action can establish notice of a dangerous or defective condition. SeeGuevara, 920 F.3d at 720–22 (holding that a warning sign alerting passengers to “watch [their] step” was sufficient to create an issue of material fact on whether the cruise ship had notice of the dangerous nature of the step down); Sorrels, 796 F.3d at 1288 (holding that a ship employee’s testimony that the ship would sometimes post a warning sign on the pool deck after it rained was enough to create an issue of material fact on whether there was notice that the deck could be slippery when wet). Here, there is evidence reflecting that Carnival took corrective measures to prevent people from tripping over the lounge chairs in the walkway on Deck 11.
*1266 For example, Mrs. Carroll presented evidence, including the testimony of one of Carnival’s employees, that if the lounge chairs were arranged in the “lay-flat position,” rather than upright, they would protrude further into the walkway—making the walkway even narrower. As a result, Carnival required them to be set up in the upright position, and employees regularly patrolled the area to fix the chairs. Specifically, one of Carnival’s pool deck supervisors, Viktor Symotiuk, testified that the lounge chairs on Deck 11 were supposed to be arranged in the upright position, and he was instructed (and trained other employees that he supervised) to make sure that the chairs were not protruding into or blocking the walkway. Although he testified that a lounge chair may be used in the lay-flat position if it is occupied, he also stated that “[y]ou never leave the chair unattended and flat in that area.” He further acknowledged that “[i]f the lounge chair is set on the passenger walkway, it would be an obstruction[ ], it’s a reason why a person can get injured.”
The district court relied on the deposition of another pool deck supervisor, Denys Stavyts’ky, who testified that that the chairs could be set up in either the upright or lay-flat position. But the conflict in the testimony of Mr. Symotiuk and Mr. Stavyts’ky demonstrates that there is a dispute of material fact, making summary judgment inappropriate.[20] [***]
As in Guevara and Sorrels, a reasonable jury could view this testimony as evidence that Carnival has taken corrective measures—i.e., adopting a policy of keeping the chairs in-line and/or in the upright position and instructing employees to ensure that they are not blocking the walkway—due to a known danger. This is enough to withstand summary judgment on the issue of Carnival’s notice.
In sum, there were disputes of fact on both the obviousness of the condition and Carnival’s notice of the danger. The district court therefore erred in granting summary judgment on Mrs. Carroll’s failure to warn claim.[21]
The district court appears to have concluded that Carnival was entitled to summary judgment on both Mrs. Carroll’s failure to warn and negligent maintenance *1267 theories because of the open and obvious nature of the condition. The district court reasoned that it need not reach notice after determining that the condition was open and obvious, suggesting that its decision on the latter was dispositive of the entire case. That initial conclusion, however, should not have ended the analysis for Mrs. Carroll’s negligent maintenance claim.
As Mrs. Carroll correctly argues, Carnival may still be liable for maintaining a dangerous condition even if the danger was obvious. The open and obvious nature of a dangerous condition negates liability for failure to warn. *** We have not squarely addressed, however, whether the open and obvious nature of a dangerous condition also bars liability for a maritime negligent maintenance claim. *** Thomas J. Schoenbaum, Admiralty & Maritime Law § 5:11 (6th ed. 2018) (“[T]here is a duty to warn passengers only of dangers that are not apparent and obvious. [The court concludes that the open and obvious nature of a dangerous condition does not bar a claim against a shipowner for negligent failure to maintain safe premises.]
Mrs. Carroll presented evidence creating a genuine dispute of material fact as to whether Carnival negligently maintained an unsafe walkway. This included an affidavit from her expert, Mr. Jaques, who opined that the width of the walkway would have been below industry standards if the chairs were in the lay flat position. This testimony is relevant in determining whether Carnival’s conduct fell below the standard of care. See, e.g., Sorrels, 796 F.3d at 1282 (“[E]vidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence … Compliance or noncompliance with such custom, though not conclusive on the issue of negligence, is one of the factors the trier of fact may consider in applying the standard of care.”) (citation and internal quotation marks omitted).
According to Mr. Jaques, the maximum amount of room possible in the walkway was 35–36 inches if the lounge chairs were in the upright position and pushed up against the glass wall of David’s Steakhouse. If the lounge chairs were in the lay-flat position, however, the width of the walkway would be 28 ½ inches if the chairs were only two inches from the glass, and between 23 and 25 inches if the chairs were approximately six inches from the glass. If some of the chairs were in the lay flat position or pulled out a few inches, Mr. Jaques opined that the walkway would violate industry standards, including but not limited to the ADA standards, which require “a clear width of not less than 36 inches[.]” D.E. 49 at 37.
The record further reflects that there are disputes of material fact regarding whether the chairs were in the upright or lay-flat position at the time of the accident, and whether the chairs were in line or out *1270 of position. For example, both Mrs. and Mr. Carroll testified in their depositions that at least some of the deck chairs were in the lay flat position. Mrs. Carroll also testified, however, that at the time of the accident the chairs “weren’t messed up.” In contrast, Mr. Carroll testified that the chairs were not “orderly,” explaining that three or four of the chairs were “out of position” and “were pulled back from the glass several feet[.]” He explained that the chairs “were in the walkway,” which he described as being “more like an obstacle course,” and estimated that the width of the walkway was about 20 inches.
A reasonable jury could find that at least some chairs were in the lay-flat position and out of order, and thus conclude—in conjunction with Mr. Jaques’ testimony—that Carnival negligently maintained an unsafe walkway that fell below industry standards. The district court therefore erred in granting summary judgment on Mrs. Carroll’s negligent maintenance claim.
We reverse the district court’s grant of summary judgment in favor of Carnival and remand for further proceedings consistent with this opinion.
Note 1. While maritime law is applicable here, it adopts the general principles of tort law with which you are gaining familiarity.
Note 2. Given that this is a case concerning Carnival’s duty to Carroll, why does the court discuss the conduct of both parties, thus impliedly addressing breach of duty?
Note 3. The “open and obvious” defense pertains to premises liability as well as any claim arising from a failure to warn. How obvious does a risk factor or danger have to be for it to be deemed “open and obvious”? Do you think age, cognitive ability, education or language should matter to whether someone understands risks to be “obvious”?
In a footnote omitted from the opinion, the court clarifies its open-and-obvious standard:
We have repeatedly acknowledged and applied this reasonable person standard in unpublished maritime decisions. See, e.g., [c] Horne v. Carnival Corp., 741 F. App’x 607, 609 (11th Cir. 2018) (“A cruise line does not need to warn passengers or make special arrangements for open-and-obvious risks…. In determining whether a risk is open and obvious, we focus on ‘what an objectively reasonable person would observe and do[ ] not take into account the plaintiff’s subjective perceptions.”) (internal quotation marks and citations omitted) [c].
However, duty is determined as a question of law and the “open and obvious” defense is often used to defeat a claim of duty. Are determinations of “open and obviousness” better suited to fact-based adjudication of the reasonable person’s understanding of the risk? Or should truly “open and obvious” hazards be dealt with as a matter of law, in keeping with the categorical, higher-level determinations of duty?
Note 4. How does the court deal with the plaintiff’s testimony relative to the reasons why she walked behind her husband? What significance might that have socioculturally and legally?
Duties Determined by Type of Harm
Pure Economic Losses (no duty) versus Pure Emotional Losses (duty in certain cases)
Purely Economic Losses. Despite the modern view that people have a general duty to refrain from conduct that will foreseeably cause physical harm to others, there is no duty to refrain from conduct that would cause purely economic losses. This is one way in which tort law has policed its scope. By refusing recovery for losses that are purely economic, tort law forces parties to find alternatives in private ordering such as contracts and home, auto, or business interruption insurance. These alternatives are deemed better suited than tort law to protect against certain kinds of harms and risks. Consider whether these private ordering alternatives serve equally well all entities potentially harmed by tortious conduct.
Purely Emotional Losses. At common law, recovery in tort law was generally unavailable or extremely limited for losses that were purely emotional. This rule has been eroded over time, as is reflected by the introduction of torts that make severe emotional distress a cognizable injury under certain circumstances, namely, IIED, NIED (Negligent Infliction of Emotional Distress) or both. You have already learned about the challenges of prevailing with IIED claims, in Module 2. While in most jurisdictions, plaintiffs can recover for purely emotional losses under negligence, the challenges for plaintiffs are usually even greater than those posed by IIED claims.
Most courts are reluctant to allow recovery for NIED, for several reasons. First, emotional distress without any accompanying physical harm is usually ephemeral and may be difficult to measure or prove. Second, the scope of liability seems potentially limitless; if an accident causes a gruesome injury, the tortfeasor could potentially be liable to a large number of people who witnessed it if all bystanders were eligible to sue for the distress they suffered. Third, there is a concern that NIED claims may reflect attempts to use private insurance policies strategically. Most insurance policies have exclusions for intentional torts but include negligence claims. Thus, by characterizing conduct causing an emotional injury as negligent rather than intentional, a plaintiff could tap into significant resources that might not otherwise be available.
The rules that shape NIED vary greatly by state, yet they consistently create hurdles or outright bars for plaintiffs. Among the many different approaches employed by the states, four common categories can be identified: (1) states that follow some version of the “physical impact rule”; (2) states that require that plaintiffs have been in the “zone of danger”; (3) states that apply the “relative bystander” rule; (4) states that apply foreseeability analysis and limit recovery to when a defendant ought to have anticipated causing emotional distress to people like the plaintiff.
The physical impact rule bars recovery for claims of NIED based on witnessing negligent injury to another unless the plaintiff has suffered a physical impact or injury in the same incident. The impact itself could be minor but it suggests that the plaintiff was close and directly affected by the tortfeasor’s injury of the other person.
The zone of dangerrule permits recovery only when the plaintiff was in the zone of physical danger created by the defendant’s tortious conduct, and this may be defined in terms of either proximity in space or time, closeness of familial connection, or both. Proximity may be used as a term of art, therefore, that means not just physically nearby, but also close in terms of relationships the law is especially intended to protect.
The relative bystander rule requires that the bystander whose claim depends on having witnessed the injury to another be related in some way, whether through marriage or other familial relation. It may also require proximity in space and or immediacy in time such that the claim depends on having been near to and aware of a loved one or family member’s suffering while that person experiences the physical injury caused by the defendant.
These limits—physical impact, proximity within the zone of danger, and foreseeability—significantly narrow the scope of the tort. They do so by using the element of duty as a gatekeeping mechanism.
(843 P.2d 589)
This case involves a claim for damages resulting from personal injury caused by a playground accident at Pershing Elementary School. Appellants James Contreras, Brenda Contreras and Odorico Contreras appeal the order granting judgment on a jury verdict for defendants-appellees, and denying their motion for a new trial. At issue is whether the trial court properly granted partial summary judgment on appellants’ negligent infliction of emotional distress claim.[***]
We affirm. [***]
January 25, 1989, was a cold, blustery day in Rawlins, Wyoming. The weather that morning did not keep about 150 to 200 children from gathering, as they often did, outside Pershing Elementary School to play in the school playground before school began. The children were supervised by two school employees, appellees Belinda Wells and Kathleen Shamion. The playground at Pershing Elementary was divided into two segments. The west end, with swings and other playground equipment, was where the little children played together. The east, or “high activity” end, was where the older children played. This segregation of the playground was established mostly by convention and the tendency of children to play with those their own age. There was no physical barrier of any sort between the high-activity area and the area to the west of it where the younger children played, although the playground supervisors did try to keep the younger children out of the high-activity area.
In the high-activity area there was a football field marked out in white lines. On the morning in question, several fifth-grade boys were playing their daily game of football on the field. They had been instructed to keep within the white lines. One of the boys, Chuck Juare, was running backwards to catch a pass when he collided with appellant James Contreras. James was then seven years old and in the first grade. James was knocked off his feet, and Chuck fell on top of him. Another fifth-grade boy, Nick Armijo, was shadowing Chuck in the game. After Chuck fell, Nick tripped over Chuck and James and fell on top of them.
Mrs. Wells, Mrs. Shamion, and the school principal, Robert Johnson, soon arrived at the spot where James Contreras lie crying and in pain. James repeatedly told Johnson that his leg hurt. After ascertaining that the child had no back, neck or head injuries, Johnson decided to take him indoors because of the cold. He carried James about 200 feet, first into the school building and then into the school office. Johnson placed James on a nurse’s cot in the office. Mr. Johnson’s secretary called James’ mother, appellant Brenda Contreras, to inform her that her son had been hurt. Mrs. Contreras drove quickly to the school. When she got out of her car in front of the school building, she could hear her son crying. She followed the sound of crying to the office, where she discovered her son lying on the cot in intense pain. His crying disturbed her so much that soon she too was crying. Mr. Johnson asked Mrs. Contreras whether she wanted an ambulance called. She said that she did.
When the paramedics arrived, they cut the leg off James’ jeans to observe his injuries. They discovered that James had an inverted right femur, which is a very painful fracture of the longest bone in the human body. The femur in James’ leg was *592 visibly twisted toward the other leg. Mrs. Contreras was told that her son’s leg was broken. James was taken to the hospital in an ambulance, where he was fitted with a body cast which he wore subsequently for two and one-half months.
James, his mother and his father all filed suit against Carbon County School District No. 1, Mrs. Wells, Mrs. Shamion, Robert Johnson, Chuck Juare and Nick Armijo. In addition to claims for medical expenses, home health care provided, and compensation for James’ pain and suffering, Brenda Contreras requested in the complaint damages for the emotional distress she incurred at seeing her son in severe pain and worrying that he might be permanently deformed by the injury. The trial court entered judgment against Mrs. Contreras on her emotional distress claim. Nick Armijo was never served with process, and the claim against Chuck Juare was dismissed after he reached a settlement with the plaintiffs. The remainder of the claims were allowed to go to the jury. After trial, the jury returned a verdict in favor of the defendants on all claims.
[***][A]ppellants challenge the trial court’s finding that an emotional distress claim is precluded by our decision in Gates v. Richardson, 719 P.2d 193 (Wyo.1986).
[***] In Gates v. Richardson, 719 P.2d 193 (Wyo.1986), we recognized the tort of negligent infliction of emotional distress. In order to avoid burdening our court system with an overbroad theory of liability, we placed limits on possible recovery under that cause of action. We held that only those plaintiffs could recover: (1) whose kinship to the accident victim would permit them to bring a wrongful death action; (2) who observed the infliction of serious bodily harm or death, or observed the serious bodily harm or death shortly after its occurrence but without material change in the condition or location of the victim; and (3) whose loved one did, in fact, sustain death or “serious bodily injury” as defined in the Wyoming Criminal Code. Gates, 719 P.2d at 198–99. The trial court granted summary judgment here on appellants’ failure to meet the second element of the Gates test, the immediacy of the observation.
Wyoming is one among a small number of states which allows recovery for the emotional distress a plaintiff experiences when she observes a loved one seriously injured or dead after the injury has actually occurred. [c] Our immediacy test allows some time to elapse between the time of injury and the time of observation. Once the victim’s condition or location has materially changed, however, the moment of crisis for which recovery is allowed is deemed to have passed, regardless of the brevity of time which has elapsed since the accident. Shock or emotional distress may occur after this point, but it is no longer compensable.
If this rule seems harsh, we must point out that Wyoming follows a more liberal course than do many jurisdictions, including California, whose landmark case of Dillon v. Legg, 68 Cal.2d 728, (1968) so heavily influenced our adoption of the modern version of the tort. Gates, 719 P.2d at 195. While the California Supreme Court’s position in Dillon was at the forefront of the law, that court, refining Dillon, recently rejected an emotional distress claim by a woman who arrived at an accident scene and found her bloody, unconscious son lying in the roadway, because she did not actually witness the accident. Thing v. La Chusa, 48 Cal.3d 644 (1989). This is a much harsher result than our rule requires. In fact, the dissent in Thing cited language from Gates as an example of the more liberal rule that California should have adopted. Thing, 257 Cal.Rptr. at 892–93 [***].
Our broader immediacy rule, which allows the plaintiff to recover if she observes the injury shortly after it occurs without material change in the attendant circumstances, was adopted from the Massachusetts case of Dziokonski v. Babineau, 375 Mass. 555 (1978). Gates, 719 P.2d at 199. Massachusetts expanded the Dziokonski rule early on to include emotional distress claims predicated on viewing the injured person at the hospital rather than at the scene. Ferriter v. Daniel O’Connell’sSons, Inc., 381 Mass. 507 (1980). On this point, we must decline to follow the Massachusetts rule. The shock received on seeing an injured loved one in a hospital setting, or lying on a cot in a principal’s office, is of a different quality than coming upon him or her at the scene of the accident. In our view, Ferriter over-emphasized the factor of whether chronological time had elapsed since the accident and under-emphasized the circumstantial factors under which the observation was made.[22]
Turning to the circumstances of this case, Mrs. Contreras did not observe the infliction of her son’s injuries. She did see him in pain shortly after the accident. However, he had been removed to the principal’s office and was lying on a cot at the time. There had, therefore, been a “material change” in his location sufficient to mitigate the shock of the accident. While it is true that seeing her son’s injuries must have been extremely distressing to Mrs. Contreras, a victim’s loved ones are not entitled to recover for the emotions created by every shocking or upsetting injury to the victim, only to those which fall within the limitations of the cause of action as we have recognized it. See Thing, 257 Cal.Rptr. at 879–80. We therefore hold that Mrs. Contreras did not, as a matter of law, state a claim for negligent infliction of emotional distress because she did not observe the accident or observe the victim in substantially the same location and condition as when the accident occurred. [***]
Note 1. Descriptively, what facts would have needed to change in order for Mrs. Contreras to recover for the shock and upset of her son’s injuries?
Note 2. Normatively, do you think the court draws the right line in denying recovery on these facts? Would it matter to your analysis if her son had died versus being injured?
Note 3. What consequences can you imagine to a rule in which the parents of children severely injured at their (public) schools can sue over their emotional distress pertaining to those injuries even when not present? Might some so-called “helicopter” parents begin attending recess? Would legislatures be forced to fund tort liability at schools (and might that lead to some legislatures’ defunding schools to a certain extent)? Might schools be optimally incentivized to maintain safe playgrounds and supervise play times? Are schools likely to achieve a balance that makes children, parents, and legislators happy? Should this balance matter for tort law’s purposes?
Note 4. Physical Impact Rule, A DeeperDive. At common law, the general rule was that claims for emotional distress could not succeed unless they were accompanied by physical harms. Thus the first hurdle to the creation of a claim for NIED was the abrogation or modification of the “physical impact rule.” In Falzone v. Busch, 45 N.J. 559, 561 (1965), Mabel Falzone, was in the car next to her husband, parked lawfully, when her husband was struck by the defendant’s car veering negligently across the highway. She perceived it and it came “so close to plaintiff as to put her in fear for her safety.” Although it had not struck her and thus her claim did not satisfy the physical impact rule, the court permitted recovery on the grounds that such impact had been possible. It was thus reasonable of Mrs. Falzone to fear the impact, which made her ensuing emotional distress credible. In Portee v. Jaffee, a mother never feared for her own physical harm or impact but suffered emotional distress when her child died tragically and slowly before her eyes. The trial court, following Falzone, ruled against the plaintiff since she had faced neither physical harm nor probable or imminent contact. The Supreme Court reversed:
Plaintiff’s seven-year-old son, Guy Portee, resided with his mother in a Newark apartment building. Defendants Edith Jaffee and Nathan Jaffee owned and operated the building. On the afternoon of May 22, 1976, the youngster became trapped in the building’s elevator between its outer door and the wall of the elevator shaft. The elevator was activated and the boy was dragged up to the third floor. [fn] Another child who was racing up a nearby stairway to beat the elevator opened it, saw the victim wedged within it, and ran to seek help. Soon afterwards, plaintiff and officers of the Newark Police Department arrived. The officers worked for four and one-half hours to free the child. While their efforts continued, the plaintiff watched as her son moaned, cried out and flailed his arms. Much of the time she was restrained from touching him, apparently to prevent interference with the attempted rescue. The child suffered multiple bone fractures and massive internal hemorrhaging. He died while still trapped, his mother a helpless observer. Portee v. Jaffee, 84 N.J. 88, 91 (1980)
As the court notes in Contreras, California and Massachusetts followed slightly different trajectories, but all courts facing such claims have sought to find a balance between permitting some without opening the floodgates to “trivial” claims. Are the factors you see in the analysis thus far persuasive?
Note 5.Critiques of NIED’s Various Tests. Many have criticized elements of the various tests for NIED. For instance, they maintain that the relative bystander rule provides no relief for bystanders who witness the suffering of non-familial loved ones even though it is often far more distressing to lose (or witness injury to) a beloved friend than it might be to experience the same with respect to an estranged family member or long-lost distant cousin. Nonetheless, courts that apply the test have tended to do so in a rigid, formalistic way.
Should courts adopt a rule that reflects the growing awareness of the social importance of friendships in society? See e.g.https://www.theatlantic.com/family/archive/2020/10/people-who-prioritize-friendship-over-romance/616779/
Other critics lament the rather technical (and sometimes trivializing) nature of the “proximity” and “immediacy” requirements applied as part of the zone of danger test (and sometimes also under the relative bystander test, which may require “contemporaneous presence”). For instance, if a person were present but sleeping through an injury, or looking away from the scene at the precise moment of injury, some courts would deny recovery (depending on the precise nature of the claim).
How much should legal technicalities matter in delineating the scope of liability for the negligent infliction of losses that are purely emotional? Do the tests’ traditional limits reflect outdated notions of what it means “to be present”? How should they be applied in our increasingly “virtual” era? Would it satisfy the proximity requirement, for instance, to be on the phone with a family member who was dying in an accident negligently caused by the defendant? (Courts have come out differently on this question.) Would being on FaceTime or Zoom satisfy the proximity or contemporaneous presence requirements? How about if the plaintiff witnessed harm to their loved one via livestream from a “nanny cam” (a device of some sort that audiovisually records activity in a child’s room or elsewhere in a home, designed to surveil childcare providers) in the plaintiff’s home? Recently, an appellate case in California answered in the affirmative.
Initially, the trial court ruled that the Ko family could not state a cause of action for NIED after witnessing their in-home caregiver, Thelma Manalastas, abusing their disabled son while the parents were out of the home. They observed the abuse from their smartphone, which captured video and audio on their nanny cam. The Kos brought suit against Manalastas for battery, assault, and negligence for their son (who died during the pendency of the litigation) and on their own behalf for NIED, suing Manalastas’ employer, Maxim Healthcare. Since the parents weren’t home during their child’s abuse, the trial court held that they failed to satisfy California’s requirement that a bystander be both present at the scene of the injury-producing event and aware that it is causing injury.
On appeal, the Kos argued that their “virtual presence” during their son’s abuse should satisfy the contemporaneous presence element required in California and the court agreed, reversing the trial court’s decision. Ko v. Maxim Healthcare Servs., Inc., 58 Cal. App. 5th 1144, 1146–47, (2020), as modified (Jan. 14, 2021), review denied (Apr. 21, 2021). The Supreme Court’s reasoning was grounded in an awareness of technological change: “In the three decades since the Supreme Court [of California] decided Thing[v. La Chusa (1989) 48 Cal.3d 644, 668, the controlling precedent], technology for virtual presence has developed dramatically, such that it is now common for families to experience events as they unfold through the livestreaming of video and audio.” Id. at 1147. The court rejected the defendant’s attempts to downplay the significance of these social and technological changes in a thoughtful opinion that is worth quoting at length:
Maxim argues that “remote surveillance is nothing new, nor is watching events happening live with video and audio,” and contends that “[i]ncreased convenience does not mean we are any more able to be present in places where our bodies are not than we were in 1989.” Maxim and Manalastas contend that technology allowed live broadcasts decades ago, pointing to the live broadcast of the fatal shooting of Lee Harvey Oswald in 1963, the 1986 televised explosion of the space shuttle Challenger, and the use of closed-circuit television in courtrooms prior to Thing. But the Supreme Court in 1989 could not have reasonably anticipated the technological advances that now allow parents (and other family members) to have a contemporaneous sensory awareness of an event causing an injury to their child while not in physical proximity to the child.
Certainly, live television and remote video surveillance existed in 1989, but numerous technological, regulatory, and commercial developments in image capture (such as an Internet-enabled nanny cam), transmission (including the streaming of audiovisual data over the Internet and mobile data networks), and reception (such as on pocket-sized smartphones with high resolution screens) were necessary to create a world where parents could contemporaneously observe their at-home child while attending a basketball game. Indeed, the ubiquity of home surveillance systems and videoconferencing applications since the advent of Internet-enabled smartphones has manifestly changed the manner in which families spend time together and monitor their children. (See e.g., Riley v. California (2014) 573 U.S. 373, 385 [“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from [the defendant] was unheard of ten years ago; a significant majority of American adults now own such phones. [c] [Such] phones are based on technology nearly inconceivable just a few decades ago ….”].)
In various areas of the law affecting traditional conceptions of physical presence, the courts have been called upon to interpret longstanding precedent in light of new technologies. [***] Where plaintiffs allege they were virtually present at the scene of an injury-producing event sufficient for them to have a contemporaneous sensory awareness of the event causing injury to their loved one, they satisfy the second Thing requirement to state a cause of action for NIED. Just as the Supreme Court has ruled a “plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative” [c] so too can the Kos pursue an NIED claim where, as alleged, they contemporaneously saw and heard Landon’s abuse, but with their senses technologically extended beyond the walls of their home.
Here, as alleged, the Kos were virtually present through modern technology that streamed the audio and video on which they watched Manalastas assaulting Landon in real time, and thus “personally and contemporaneously perceive[d] the injury-producing event and its traumatic consequences.” (Thing, supra, 48 Cal.3d at p. 666.) Based on these allegations, the Kos have stated facts sufficient to constitute a cause of action for NIED. (Thing, supra, 48 Cal.3d at pp. 666, 668.)
The judgment is reversed. The matter is remanded with directions to the trial court [***]. The Kos are to recover their costs on appeal. Id. at 1157–60.
Based on what you have learned about NIED so far, what do you think of this reasoning, descriptively and normatively?
Note 6.Culpability. Negligent infliction of emotional distress differs from IIED in having a much lower conduct standard: it requires only carelessness, not intentional or reckless conduct. Notwithstanding case law to the contrary, extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress. Taggart v. Costabile, 131 A.D.3d 243, 255 (Sup. Ct. App. Div. 2d Dept., NY, 2015).
Summary of Types of Duty:
• General Duty: the modern rule, applicable in most cases: everyone has a duty to refrain from conduct that will cause foreseeable harm
• Duty as a Function of Foreseeability: a duty arises when there is harm to a foreseeable person or a foreseeable harm that can be created or increased through one’s actions (Walls v. Oxford Management and Tarasoff; Palsgraf though there the court found no duty)
• No Duty:there is no duty to “rescue” or take action to help others relative to harms one didn’t create or risks one didn’t increase (Harper v. Herman; Sidwell v. McVay)
• DutyBased on Relationship or Undertaking:a duty arises when there is a special relationshipbetween parties (the special relationship may be contractual, familial or social (recall wingman liability as in Farwell v. Keaton); or the special nature of the therapist’s work as in Tarasoff); or when a party volunteers (a “gratuitous undertaking”) and thus creates a duty
• Duties of Common Carriers or Innkeepers: special duties attach to the activities of common carrier and innkeepers because of the control and power they exercise over the passengers or customers temporarily in their custody (Bullock, Maison)
• Duty Related to Premises Liability: owners and possessors of land usually owe a duty of care towards entrants on their land but what that requires of them depends on the jurisdiction (Carroll v. Carnival); the majority of jurisdictions refer to the status of the entrant to specify the level of care required whereas the minority approach applies “reasonableness” (Rowlandv. Christian)
• Duty Determined by Type of Harm: in limited cases involving purely emotional harms, courts will determine whether a duty exists based on a restrictive set of factors varying by jurisdiction (Contreras v. Carbon County); there is no duty to compensate for purely economic losses caused by one’s conduct
Check Your Understanding (3-3)
Question 1. True or false: While there is no duty to rescue people from harm initially caused by others, all people have a general duty to refrain from conduct that increases the risks of harm flowing from negligent conduct by others.
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Question 2. True or false: Based on what you have learned in Torts so far, Harper v. Herman would come out the same way if decided in 2021. Assume no changes of facts (so, no contractual waiver of liability involved) and no relevant ordinances at issue (such as regulations pertaining to boating).
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Question 3. Which of the following scenarios, below, is *least* likely to fall within one of the exceptions to the no duty rule that the Restatement Section 314A identifies? Put another way, which of these scenarios is likeliest to find a duty exists? You may wish to review the language of 314A.
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This was a challenging question since it asks you to read three mini fact patterns as well as the Restatement factors and then apply those factors to the fact patterns. The structure of the inquiry is also challenging: if the factors applied, then duty would exist, meaning the “no duty default rule” would be negated. There’s some challenge just in conceptualizing an exception to a default rule, all on its own. There is an additional challenge in the fact that premises liability cases often formulate liability in terms of whether a duty exists when in fact the true legal question is whether the defendant had a duty to do a particular thing on these facts which sounds a great deal like breach analysis. Recall that the limited duty cases often do present hybrid analysis of just this kind and may ultimately present a jury question, just as Farwell v. Keaton, above, demonstrated.
Question 4. Patel runs a tourism business that, among other things, gives tours of Lake Union and Lake Washington to introduce visitors to the area. It shows them landmarks such as Gasworks Park, the University of Washington, various bridges and significant buildings, as well as houseboats, which are always a source of curiosity and interest for out of towners. The way to see houseboats, in particular is to get up close, on a small vessel (or even kayaks and paddleboards). A large shipping company, the Ballard Asset Development Company (“Bad Co”), is responsible for dumping a huge volume of chemicals into the water, and as a result, both bodies of water are deemed hazard sites and off limits. Patel grows extremely sad upon hearing the news. First, he is an environmentalist, and cares deeply about the air, water, and land. Second, he is aware that this will have a significant impact on his business. Some businesses are allowed to continue to navigate the water in limited ways if they have previously applied for a special business license that is required for those who run businesses making use of the waterways. Patel intended to file for one, but never got around to it. He knew it was technically a statutory violation but he thought of it as a “victimless crime” and intended to rectify the problem at some point. Even those businesses that can access the bodies of water, however, are restricted to twice daily passage, which limits his ability to conduct his business. He loses significant revenues as a result and as the process of cleaning up the sites drags on for weeks, and then months, he is forced to take increasing measures to protect himself financially. Finally, he applies for bankruptcy. He would also like to sue Bad Co for their conduct.
Which principle(s), of those stated below, will cause Patel’s claim to fail under tort law?
(i) Bad Actor will not be liable to Patel for his emotional losses under IIED because Patel cannot make out the required elements
(ii) Bad Actor owes no duty to Patel for his economic losses
(iii) Bad Actor owes no duty to Patel under Tarasoff because he was not a specific third party
The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. Herman disputes that the boat was this far from shore, but for purposes of this appeal stipulates to Harper’s allegation.
2. Prosser describes a circumstance in which one party would be liable in negligence because another party was deprived of normal opportunities for self-protection as occurring when the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff’s welfare. In addition, such relations have often involved some existing or potential economic advantage to the defendant. Fairness in such cases thus may require the defendant to use his power to help the plaintiff, based upon the plaintiff’s expectation of protection, which itself may be based upon the defendant’s expectation of financial gain. W. Page Keeton et al., Prosser and Keeton on the Laws of Torts § 56, at 374 (5th ed. 1984).
3. The trial judge instructed the jury to determine whether Siegrist had voluntarily undertaken to render aid and, if he had, whether he acted reasonably in discharging that duty. Whether Siegrist be charged with the duty of a voluntary rescuer or the duty of a companion, the standard of care—whether he acted reasonably under all the circumstances—is the same and the instruction given was adequate.
4. Of course, merely labeling a question as one of ‘law’ or ‘fact’ does not solve the dilemma. ‘No two terms of legal science have rendered better service than ‘law’ and ‘fact’ * * *. They readily accommodate themselves to any meaning we desire to give them * * *. What judge has not found refuge in them? The man who could succeed in defining them would be a public enemy.’ Leon Green, Judge and Jury, p. 270.
5. ‘* * * The law has persistently refused to recognize the moral obligation of common decency and common humanity, to come to the aid of another human being who is in danger * * *. The remedy in such cases is left to the ‘higher law’ and the ‘voice of conscience,’ which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or to compensate the victim.’ Prosser, Torts (4th ed.), s 56, pp. 340—341. ‘At the other end of the spectrum are cases where the peril to the plaintiff has come from a source in no way connected with defendant’s conduct or enterprises or undertakings, past or present, but where the defendant has it in his power by taking some reasonable precaution to remove the peril. Here the law has traditionally found no duty, however reprehensible and unreasonable the defendant’s failure to take the precaution may be. * * * There is no legal obligation to be a Good Samaritan.’ Harper & James, The Law of Torts, s 18.6, p. 1046.
6. Carriers have a duty to aid passengers who are known to be in peril [cc] Maritime law has imposed a duty upon masters to rescue crewmen who fall overboard. [cc]
7. It is at this point—plaintiff’s unsuccessful attempt to arouse the decedent in the driveway—that counsel, during oral argument, believes that defendant volunteered to aid the decedent. Yet no affirmative act by defendant indicated that he assumed the responsibility of rendering assistance to the decedent. Consequently, there could be no Discontinuance of aid or protection which left decedent in a worse position than when the alleged ‘volunteering’ occurred. This would make operative the concession of plaintiff that where no duty is owed, the refusal to act cannot form the basis for an action in negligence.
8. Defendant had no way of knowing that it was the severity of the head injury suffered by the decedent which caused him to crawl in the back seat and apparently fall asleep. The altercation combined with the consumption of several beers could easily permit defendant to conclude that decedent was simply weary and desired to rest.
9. The most notable of which include: Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301, 56 A.L.R. 1123 (1928) [cc].
10. Were a special relationship to be the basis of imposing a legal duty upon one to insure the safety of another, it would most probably take the form of ‘co-adventurers’ who embark upon a hazardous undertaking with the understanding that each is mutually dependent upon the other for his own safety. There is no evidence to support plaintiff’s position that decedent relied upon defendant to provide any assistance whatsoever. A situation where two persons are involved in an altercation provoked by the party ultimately injured, the extent of which was unknown to the other, whose subsequent conduct included drinking beer and a desire to retaliate against his attackers would not fall within this category.
11. Prosser, Torts (4th ed.), s 56, pp. 338—339.
12. McCullough v. Ward Trucking Co., 368 Mich. 108, 117 N.W.2d 167 (1962); Barnbee v. Spence Brothers, 367 Mich. 46, 116 N.W.2d 49 (1962).
• Q. Mr. Poppell did you go on a bus in Perry and assault this man right here? A. Yes, I did.
• Q. Did you know he was on that bus before you went on there? A. Well, yes, I did.
• Q. Is that the reason you went on the bus? A. Well, not exactly.
• Q. Where were you going on that trip? A. I have got a farm out this side of Perry.
• Q. About how far is it? A. Approximately ten miles, maybe twelve.
• Q. Mr. Poppell, how did you know that the Reverend Bullock was on that bus? A. Well, the police and I were sitting down there drinking coffee and I overheard the conversation of the bus driver telling the police that they were on there. He didn’t say they were on there, he said, talking to them, ‘fellows look what I have got to contend with and nothing I can do about it.’ And the police says, ‘our hands are tied too.’
• Q. He told that to the police officers? A. The best I remember that was the words said.
• Q. You heard— how far away were you? A. Well, I was sitting down there at the table.
• Q. At the table with the police officers? A. Yes, I was.
• Q. Then what did you say? A. I didn’t say anything right then. In a few minutes I got up and asked if I could buy a ticket on the bus.
• Q. You asked the bus driver that? A. Yes.
• Q. Then what did he say? A. He said he had them for sale.
• Q. Mr. Poppell have you got anything against colored people, generally? A. Not as long as they stay in their place.
• Q. Well, why did you assault him? A. Because he was out of his place.
• Q. How did you know he was out of his place? The bus wasn’t full then, was it? A. Not at that time, it wasn’t, but when everybody got on it was full. Whenever I got on it wasn’t full.
• Q. How do you know it wasn’t full? A. Well, there was plenty of loading space in the rear of the bus, but there wasn’t any in the front.
• Q. Did anything the bus driver say lead you to believe he wasn’t in his place? A. Well, I don’t know whether you would figure it was what the bus driver said or what I felt that he was out of his place too.
• Q. Isn’t it true that you wouldn’t have known, Mr. Poppell, about the Bullocks being on the bus if it had not been for the bus driver? A. Well, I probably wouldn’t have noticed it.
• Q. Then if you hadn’t noticed it, you would not have gotten on the bus, isn’t that right? A. Well, I couldn’t say whether I would or wouldn’t, because I just really don’t know whether I would have gotten on there or not. My intention was not getting on there but then I decided to go.
• Q. At the time you heard the bus driver speaking you had no intention of getting on that bus, and you had your car didn’t you? A. Yes, I did. I reckon I did. Yes, I did.
• Q. And when you heard the bus driver say something then you decided to get on the bus, isn’t that right? A. Yes, that helped.
• Q. Mr. Poppell in your testimony in this court yesterday, you stated that you had nothing against colored people? A. that’s right.
• Q. You added that if they kept their place? A. That’s right.
• Q. Did you attack the Reverend Bullock simply from the fact he was seated on the bus? A. Well, yes. And I wanted to see and as a matter of fact he was with a white woman.
• Q. What do you mean, with a white woman? A. Well, his wife is supposed to be white, I understand.
• Q. How did you know who his wife was? Had you ever known the Bullocks before this? A. No.
• Q. How did you know who his wife was? A. Well, she was pointed out as she came in the bus station.
• Q. Was it the bus driver that pointed her out? A. I believe he made a remark to the policeman that that was his wife coming in.
• Q. How did you happen to hear this? A. Well, I was sitting with the policemen.
• Q. With the policemen? A. Yes, sir.
• Q. How far were you from the bus driver? A. Well, it is just like the table in the restaurant, I was sitting down at one end of it and one of the policemen was sitting on the opposite side and one on this side. And the bus driver walked up to the table.
• Q. And he spoke to the policemen? A. Yes.
• Q. And what did he say, Mr. Powell (sic), again? A. I believe he says, and that is his wife there.’
• Q. And he pointed out Mrs. Bullock? A. Yes.
• Q. And she appeared to you to be white at that time? A. Yes, she did.
• Q. Did he say anything about the man on the bus being married to a white woman? A. I don’t remember.
• Q. Maybe this will refresh your recollection—did he say the man on the bus was married to a white woman? A. I believe he did.
• Q. Did you hear it? A. Yes.
• Q. How far away were you from him? A. Well, he was standing at the head of the table and I was sitting down.
• Q. Now, of the two things, which do you think is the worse, in your opinion—A. Well, that’s about fifty-fifty proposition.
• Q. You mean you don’t like either one? A. Either one. Otherwise he was out of his place in my opinion in the front of the bus and he was certainly out of his place being married to a white woman.
• Q. Mr. Poppell when you went in there and asked him to move you didn’t give him a chance to move? A. Well, I expected a fight back so I didn’t give him too much a chance.
• Q. Why did you expect a fight back? A. I didn’t figure he was going to give up his seat.
• Q. Why did you figure that he wouldn’t give up the seat? A. Well, just a matter of may [sic] opinion.
• Q. Is it a practice that all colored people in Perry have to move back? A. Yes.
• Q. Why did you expect this to be any different? A. Well, I guess by him riding so far without any trouble.
• Q. Actually didn’t you know that he had been asked to move? A. Yes, I did.
• Q. How did you find that out? A. I believe that the bus driver made the statement.
• Q. Now, is it your testimony that everything you knew about this man came from the bus driver or was there anyone else who told you anything about it? A. No, it wasn’t discussed. The bus driver didn’t tell me anything at all and it wasn’t discussed with anybody else. All I knew was what I overheard.
13. See, 10 Am. Jur., Carriers, §§ 1453-1470; [cc] A.L.I., Restatement of Torts, § 348. The duty to warn is identical to the duty to protect. See Rose v. City of Chicago, 317 Ill. App. 1, 45 N.E.2d 717.
14. ‘Under No Circumstances Shall Police Authorities Be Summoned If A Passenger Refuses A Seating Or Reseating Request. Should Any Disturbance Arise, Police Authorities May Be Summoned To Quell Such Disturbance.’
15. In United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71, 82, this Court said: ‘* * * The Supreme Court of Mississippi has said that, ‘We have the right to make use of knowledge of the popular and general customs of the people of this State, and public conditions therein.’ Moore v. Grillis, 1949, 205 Miss. 865. A like authority and duty is vested in this Court.’ Citing, City of Hughes Springs, Tex. v. Lips, 5 Cir., 1941, 118 F.2d 238; Rogers v. Douglas Tobacco Board of Trade, 5 Cir., 1957, 244 F.2d 471, 478; Mays v. Burgess, 1945, 79 U.S.App.D.C. 343; 20 Am. Jur., Evidence, Sec. 108.
16. Pelot v. Atlantic Coast Line R. Co., 1911, 60 Fla. 159.
17. See 28 U.S.C.A. § 2106.
18. See Atlantic Greyhound Lines v. Lovett, 1938, 134 Fla. 505, 184 So. 133, 140.
19. We note that Mr. Stavyts’ky also testified that hotel stewards were required to inspect that the chairs were arranged properly every 15-20 minutes. See D.E. 44-3 at 45–46.
20. Mrs. Carroll also asserts that Carnival had notice of the dangerous condition because there were 12 separate instances where passengers tripped and fell over lounge chairs aboard ships in the same class as the Carnival Pride. The parties dispute whether these prior incidents were sufficiently similar to Mrs. Carroll’s accident to put Carnival on notice of the risks associated with the walkway on Deck 11 of the Carnival Pride. We do not reach this issue because, as discussed above, there is other evidence in the record establishing that there is a genuine dispute of material fact as to whether Carnival had notice of the dangerous condition.
21. Moreover, we note that in recent years the Massachusetts courts have shown marked reluctance to further broaden the horizons of emotional distress claims. [Collecting cases] | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/03%3A_Negligence/3.02%3A_Duty_As_a_Function_of_Foreseeability_%28Socratic_Script%29.txt |
The Standard of Care
The standard for whether an actor was negligent is reasonableness: was the conduct in question reasonable under the circumstances? The law asks what a reasonable person would do under the circumstances, as a question of fact that varies based on the facts of a given case. The reasonable person standard is set out as an objective standard, asking what the hypothetical “reasonable person” would have done or should have known under the circumstances. This objective standard stands in contrast with a subjective standard which would ask what this defendant actually thought, knew or intended on these circumstances.
Generally, look for a precaution that could have been taken and that wasn’t. If it wasn’t, perhaps that was reasonable because the precaution was too costly or prohibitive; perhaps it would have required eliminating socially valuable conduct in order to eliminate the risks. Introducing that high a level of precaution to prevent risks deemed merely possible, not likely or probable, is suboptimal and not the standard tort law seeks to achieve.
A representative formulation of negligence provides an instructive point of departure for understanding what constitutes breach of the duty of care.
Wisconsin Jury Instruction 1005 Negligence: Defined, states “A person is negligent when he fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent if the person, without intending to do harm, does something or fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.”
In particular, using a jury instruction allows students to see how courts and juries are intended to arrive at a determination of negligence. However, this general formulation raises many questions.
Questions or Areas of Focus for the Readings
• What sorts of circumstances is the reasonable person expected to protect against?
• Who is the reasonable person by which we measure all of this potential tort liability?
• What does the reasonable person standard look like at different points in time, in different places, and for people of differing age, experience and ability?
• What kinds of conditions foreseeably lead to preventable injuries or, conversely, excuse lapses in conduct, making them unreasonable, versus reasonable?
• What kinds of evidence will be necessary to prove up the answers to these various questions?
• What happens when evidence is unavailable or missing?
The next few cases deal with how to define the standard of care and identify its breach; how to apply the reasonable person standard; and how to approach challenges in proving breach.
(11 Exch. 781, 156 Eng. Rep. 1047)
Defendants had installed water mains in the street, with fire plugs at various points. The plug opposite the plaintiff’s house sprung a leak during a severe frost, because the connection between the plug and the water main was forced out by the expansion of freezing water. As a result, a large quantity of water escaped through the earth and into plaintiff’s house, causing damage. The apparatus had been laid down 25 years ago, and had worked well during that time. The trial court left the question of defendant’s negligence to the jury, which returned a verdict for plaintiff. Judgment was entered on the verdict, and defendant appealed.
ALDERSON, B. I am of opinion that there was no evidence to be left to the jury. The case turns upon the question, whether the facts proved show that the defendants were guilty of negligence. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done. A reasonable man would act with reference to the average circumstances of the temperature in ordinary years. The defendants had provided against such frosts as experience would have led men, acting prudently, to provide against; and they are not guilty of negligence, because their precautions proved insufficient against the effects of the extreme severity of the frost of 1855, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions. Such a state of circumstances constitutes a contingency against which no reasonable man can provide. The result was an accident for which the defendants cannot be held liable. Verdict to be entered for the defendants.
Note 1. How do you formulate the rule in this case? If you’re struggling to zero in on it, cast your mind back your to introduction to negligence. Can you use the rationale behind the negligence calculus—tort law does not require that risks be completely eliminated, only optimized in light of necessary precautions and likely risk—to shape a rule here?
Note 2. How far should this rule extend? If someone moves to the Pacific Northwest and fails to take precautions against rainy weather conditions, their very first days might excuse a lack of awareness of their environs. However, at some point it ceases to be reasonable not to learn how to navigate one’s daily terrain and climate. Similarly, if someone moves to a mountain town and fails to learn how to drive in the ice and snow, it’s clearly unreasonable after some period of time. Does it matter what time of year they move? Should it be the same amount of time if they arrive in July versus January? What sort of rule would capture that reasoning? How far should it extend? Should the same rules apply to tourists visiting from other cultures and climates? Is it unfair not to tailor the reasonable person standard under certain circumstances? In whose view would it be unfair? Is it inefficient if we do tailor the reasonable person standard, that is, make it subjective to the particular defendant?
Note 3.Blyth was reportedly the first case in which the “reasonable person” framing appeared. What do you suspect accounts for the shift in the later cases to the term “reasonable man” instead of reasonable person?
Expand On Your Understanding – Storm Hypothetical
Blyth’s reasoning proceeds as though it were always evident what sorts of precautions might be reasonable or necessary and thus implicitly also assumes that it may be clear whether a weather event is an extreme contingency. But is an extreme weather event, like a typhoon, always identifiable as such before or during the event? At what point does extreme weather become an “act of God” or “force majeure” that may change the legal status of rights and duties owed to parties affected by it? How should the law distinguish between very bad weather, the kind against which parties can be expected to take reasonable precautions, and freakish or extreme and unusual circumstances against which precautions would cease to be reasonable? How much does context play a role?
In Nissan Motor Corp. in Guam v. Sea Star Grp. Inc., 2002 Guam 5, (Guam Apr. 9, 2002), [car manufacturer] Nissan sought recovery for fourteen vehicles that were damaged during Typhoon Paka [in Guam]. The vehicles were among several hundred new vehicles stored by Nissan on a lot adjacent to property owned by Sea Star. Sea Star maintained a twenty-seven-foot aluminum storage container on its property that was used as a satellite office. In preparing for the arrival of the typhoon, Sea Star attempted to secure the container by moving it up against a cyclone fence and pinning it to the ground by bending four rebar stakes around the container’s edges. During Typhoon Paka’s passage, the container was picked up and carried approximately 130 feet. It eventually landed on the fence separating Nissan and Sea Star’s lots, coming to rest against the rear of five Nissan vehicles. Nissan also alleges that nine other vehicles suffered damage from the container’s flying debris. Nissan filed suit against Sea Star arguing that Sea Star negligently failed to secure its property and that this negligence resulted in the damage to Nissan’s property. Id. at 12
Under Blyth, what result? Recall its core reasoning: “A reasonable man would act with reference to the average circumstances of the temperature in ordinary years” and its reference to a “state of circumstances [that] constitutes a contingency against which no reasonable man can provide.”
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Note 4.The Negligence Calculus. While there is no magic equation or formula that can yield a conclusion of negligence, there is a predictable policy balancing that must take place. The negligence calculus (sometimes referred to as the “Hand formula”), asks whether the burdens of precaution in a given situation outweigh the likelihood of risks occurring that will cause serious harm. In U.S. v. Carroll Towing, 159 F.2d 169 (2d Cir. 1947), Judge Learned Hand considered extensive losses that had occurred when a negligently secured barge and an absent bargee’s conduct caused damage to several other barges and their cargo, including causing a barge to sink. The harbor was busy and crowded with World War II barge traffic, and Judge Hand’s analysis sought to contextualize the fact that the bargee had left his barge unattended in light of the risks attendant on that action during that particular time and place.
[T]here is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. [***] It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables:
(1) The probability that she will break away;
(2) the gravity of the resulting injury, if she does;
(3) the burden of adequate precautions.
Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee’s prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, [***] and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o’clock in the afternoon of January 3rd, and the flotilla broke away at about two o’clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence that he had no excuse for his absence. At the locus in quo—especially during the short January days and in the full tide of war activity—barges were being constantly ‘drilled’ in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold—and it is all that we do hold—that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight. United States v. Carroll Towing Co., 159 F.2d 169, 173–74 (2d Cir. 1947).
Judge Hand’s opinion exemplifies the fact-sensitive balancing of negligence determinations. He highlights the importance of a bargee’s remaining present, especially if a barge is “in a crowded harbor” and “a storm threatens.” However, the costs of a bargee’s presence should not be so great as to make “the barge… the bargee’s prison.” He acknowledges there may be excuses for a bargee’s absence and dismisses that possibility here given the 21-hour absence of this bargee on facts that were uncertain, possibly a “fabricated story” that may have been covering up for the bargee’s going on an unauthorized bender ashore. In his attentiveness to the factual specificity of the context, Judge Hand demonstrates particularization that is characteristic of the common law of torts. Again, Judge Hand’s formula, “B < PL” is not an equation that will always produce a finding of negligence merely because the Burdens of precaution are lower than the Probability of harm multiplied by the severity of the Loss. However, it provides insight into how many courts approach the questions of negligence or instruct juries to do so. It may be difficult to overcome the intuitions that arise upon a showing that the burdens of precaution were low but not taken, even when risks threatened and those risks portended significant possible harm. Inversely, if the precautions were very costly—such as asking epileptic drivers to cease driving altogether as in Module 1’s Hammontree v. Jenner—even when the risks were low—such as when the epileptic drivers faced very low risks of seizure, it would be harder to argue persuasively in favor of finding negligence if harm does result. In some sense, the negligence calculus reflects little more than common sense balancing of risks with predictions of their possible impact.
Brake repair hypothetical 1. Imagine that you learn that a vehicle you own requires brake repairs. These repairs are not costly, and your mechanic informs you that they should be undertaken immediately because the risk that the brakes will not function is high. Since you own a vehicle, it is safe to assume you are aware of the importance of braking and the significant safety risks attendant on being unable to brake properly. Under the negligence calculus, the burdens are not very high (your mechanic’s quote is “not costly”) but the probability of harm is high. While we can’t know precisely how severe the loss will be (will you drive the car at high speeds? On dangerous, hilly, or slick terrain?), the calculus would generally tend towards a conclusion of negligence if the driver, once warned, failed to get the brakes repaired. This assessment likely mirrors your intuitions as you consider the options before you.
Brake repair hypothetical 2. Now imagine that the brake repairs are very costly. Given the significance of the harm associated with failures to brake, this might not change much in the negligence calculus. If the risk of harm is high, it might be unreasonable to drive a car simply because you can’t afford the repairs to it right away. The law reasonably expects you to refrain from engaging in conduct with a high level of risking harm to others.
Brake repair hypothetical 3. Consider the same facts as in #2, except that you use the car to transport someone a short distance to the hospital during a situation in which they face a sudden and unexpected health emergency whose complications cannot await even the time needed to call an ambulance. Is your assessment shifting as the risk of harm by possible brake failure changes with additional, possibly countervailing harms and pressures entering the picture? Or do alternatives (a friend’s car? A ride share or taxi?) seem plausible and preferable to taking the risks associated with driving a potentially unsafe car?
Brake repair hypothetical 4. Imagine that the mechanic has stated that the repairs are moderately costly, neither cheap nor exorbitant. However, the likelihood that they will malfunction is small. It is possible but not probable, that the brakes will fail before your next oil change in a few months. Now you may have different intuitions depending on how the costs of the repairs match your socioeconomic capacity, the regularity with which you need your car and your uses for it, your tolerance for risk, and the counsel of your mechanic overall.
Negligence law is filled with small factual details that involve awareness and assessment of risk as well as balancing a constellation of considerations. You don’t need a car to follow the hypotheticals above; most of us engage in this kind of risk prediction and management all the time in our daily lives, if on a smaller scale. Indeed, this is probably the main reason why the jury’s everyday experience is thought to be the proper sort of expertise for determining negligence. Many doctrines have arisen that purport to guide these intuitions and label them so that courts can imbue them with authority for subsequent courts to recognize and follow or distinguish. How useful is it to categorize and label this kind of thinking? To what extent might human intuitions be shared or divergent as applied to various factual scenarios or as manifested in the case law of particular jurisdictions? Consider the example in the next case, centering on the “sudden emergency doctrine.”
(17 N.Y.3d 492)
*495 Defendant Klink was the driver of an automobile that struck plaintiffs decedent, Irene Lifson, while she was crossing the street, causing her death. Pursuant to Klink’s claim that the accident occurred while he was temporarily blinded by sun glare, the trial court instructed the jury on the emergency doctrine in his favor. We find that, under these circumstances, it was error to give the jury the emergency instruction.
Both Lifson and Klink worked in the MONY Plaza, a large office complex in Syracuse containing two 20–story high-rise office towers. MONY Plaza is located across the street from the Harrison Street Garage, where many of the employees park their cars during the work day. There is, as a result, a substantial amount of pedestrian traffic crossing Harrison Street between the towers and the garage, particularly during rush hours. Pedestrians would commonly cross Harrison Street where the MONY Towers ‘exit lines up with the entrance to the garage, despite the absence of a marked crosswalk at that location.
On February 29, 2000, the day of the accident, Klink retrieved his car after work. At approximately 4:05 p.m., he was attempting to make a left-hand turn onto Harrison Street from Harrison Place. Harrison Street is a three-lane, one-way road, with traffic running from east to west. Klink had been proceeding north on Harrison Place, which forms a “T” intersection with Harrison Street and was waiting to turn to the west. Although Klink worked at the MONY Towers, he testified that he was not familiar with driving this particular route because he parked in different locations throughout the city, rather than in the same place every day.
Klink testified that he stopped at the stop sign to make the left turn onto Harrison Street, but that his view of oncoming traffic was partially obstructed by parked cars in the left-hand lane of Harrison Street and he had to “creep up” in order to see the approaching vehicles. He had noticed that there were pedestrians crossing Harrison Street to his left, but he also *496 asserted that he had looked in that direction and “cleared the road” before making the turn. He further testified that he had been looking to his right, toward the oncoming traffic when he started turning. He maintained that, when he looked back to his left, mid-turn, he was blinded by the sun, “all of a sudden.” His reaction was to look down and to his right and, when he looked up, the first object he saw was Ms. Lifson. Although he applied the brakes, he was unable to avoid hitting her, having seen her only a fraction of a second prior to impact. At the time of the accident, Ms. Lifson had been wearing a red coat. There was no evidence that Ms. Lifson darted out in front of Klink’s car, or that Klink was traveling at an excessive rate of speed.
Plaintiff commenced this action against Klink and the City of Syracuse [fn] alleging causes of action in negligence and failure to study/ plan for pedestrian traffic. [fn] The ensuing trial was limited to the issue of liability. As noted, pursuant to Klink’s request and over plaintiff’s objection, the trial court gave the jury an emergency doctrine instruction in Klink’s favor. The instruction generally conveyed to the jury that it had to determine whether Klink was in fact confronted with an emergency situation not of his own making and, if so, whether his conduct in response to that situation was that of a reasonably prudent person. The jury was free to reject both of those propositions, but if it determined that he had faced an emergency situation and acted reasonably, it was to find for Klink.
The jury returned a verdict attributing negligence to the City of Syracuse and Ms. Lifson [***]. Klink was found not negligent and the action was dismissed as against him. The Appellate Division affirmed, finding that the emergency instruction was properly given, as there was a reasonable view of the evidence showing that the sun glare was a sudden and unforeseen occurrence (72 A.D.3d 1523[2010]). One Justice dissented and would have found that Klink was not entitled to an emergency instruction because the sun glare should have been anticipated and was not unexpected in light of the circumstances surrounding the accident, including the sunny weather and the time of day. We granted plaintiff leave to appeal and now reverse.
*497 The common-law emergency doctrine
“recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency” (Caristo v. Sanzone, 96 N.Y.2d 172, [2001] [internal quotation marks and citation omitted]).
The doctrine recognizes that a person confronted with such an emergency situation “cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision” [c]. [***]
In Caristo, the trial court gave an emergency instruction in favor of the defendant, who had been driving in icy conditions when his car slid down a hill, past a stop sign and hit the plaintiff’s vehicle. We reversed and ordered a new trial, finding no view of the evidence to support the conclusion that defendant faced a qualifying emergency. Specifically, since defendant had been aware of the poor and deteriorating weather conditions that had existed for at least two hours, the resulting icy *498 conditions on the road could not be considered “sudden and unexpected.” [c]
By contrast, in Ferrer v. Harris, 55 N.Y.2d 285 (1982) we found that the defendant driver, whose vehicle struck a child who ran out into the street, was entitled to an emergency doctrine charge. The defendant had testified that he was driving well below the posted speed limit and that he stopped abruptly when he saw the child step off the sidewalk and run into the street between the parked cars. We determined that “it [was] more than conceivable that a jury could conclude that this defendant was faced with an emergency” [c].
The situation presented in this case bears closer resemblance to that in Caristo. While Klink did not drive this particular route often, he was familiar with the general area since he worked in the MONY Towers. Klink was about to turn to the west at a time of day that the sun would be setting. It is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west. This is not to say that sun glare can never generate an emergency situation but, under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency. Moreover, the error in giving the emergency instruction was not harmless. The improper charge permitted the jury to consider Klink’s action under an extremely favorable standard. Because the application of that instruction to the facts presented could have affected the outcome of the trial, it was not harmless error [c].
Plaintiff’s remaining contentions are without merit. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the amended complaint reinstated as against defendant Derek Klink, and the case remitted to Supreme Court for further proceedings consistent with this opinion.
SMITH, J. (dissenting).
Plaintiff’s argument here rests on the seemingly obvious proposition that no one should be surprised to find the sun setting in the west. I admit that sunset is a foreseeable event. Yet surely everyone who has driven a car knows that good drivers are sometimes surprised to find the sun in their eyes. Drivers cannot be expected to have always at the *499 forefront of their minds the time of day, the season of the year, the direction they are traveling, the weather conditions and the presence or absence of obstruction in a particular spot. Therefore, sun glare, as the majority appears to acknowledge, can sometimes present an emergency situation.
In deciding whether an emergency instruction was properly given, the issue is not whether the emergency was foreseeable; it is whether it was sudden and unexpected. Our cases illustrate the distinction. In Ferrer v. Harris, the defendant driver was passing a park where he knew that children played, and it was obviously foreseeable that a child would step in front of his car; but the event was sudden and unexpected when it happened, and the driver was therefore entitled to an emergency instruction. In Amaro v. City of New York, 40 N.Y.2d 30 (1976), plaintiff was a firefighter who was injured in a fire-house while responding to a fire alarm; we held that the alarm, foreseeable as it was for that plaintiff in that location, was sudden and unexpected and that the plaintiff was properly accorded the benefit of an emergency charge. In Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923 (1996), the defendant’s employee, a bus driver, was familiar with the intersection where the accident occurred and knew “that cars frequently turned right from the left lane in front of buses in this area.” We nevertheless held that it was error to deny an emergency charge, because the driver’s general awareness that such turns often happen “would not preclude a jury from deciding that, as to the events in issue in this case, the driver did not anticipate being suddenly cut off by this particular car” (id.).
Caristo v. Sanzone appears to be the only case in which we have held an emergency instruction was improperly given. There, the defendant was driving in bad weather—a mixture of snow, frozen rain and hail. The claimed emergency was that he encountered a sheet of ice. We held, five to two, that in view of the driver’s knowledge of the weather conditions “the presence of ice on the hill cannot be deemed a sudden and unexpected emergency” (id. at 175). Caristo thus holds that no one driving through such conditions, while exercising reasonable care, could be surprised to find that the road was icy.
A similar holding is not justified here. The record, read most favorably to Klink, shows that he was driving on a city street, where buildings sometimes do and sometimes do not block the *500 sun, and that he was unfamiliar with the route. A jury could surely find that he did not calculate the direction of his travel, the time of day and the time of year so precisely that he expected to find the sun in his eyes when he turned. The emergency instruction was properly given.
Note 1. Do you think the emergency instruction should have been given (as do dissent and the majority opinion in the court below) or do you agree with the majority about its impropriety on these facts? Why?
Note 2. Descriptively, cases like Lifson are decided on facts as a determination of the breach of duty. This is why the opinions spend so much time analogizing and distinguishing precedents and framing the facts of various accidents. Normatively, do you think it would be better or worse for certain recurring situations (like sun glare or ice storms) to be determined as a function of duty, that is as a question of law for the judge? What would be gained or lost in such a situation?
Note 3. How much should context matter in the determination of reasonableness? Both opinions in Lifson discuss weather, natural topographical features and buildings as well as the humans populating the landscape at the time of the accident. Are there no universal rules about conduct without contextual clues?
Note 4.Lifson concerns the sudden emergency doctrine but other doctrines apply analogous reasoning to ongoing situations. For instance, the ongoing storm doctrine may relieve a commercial property owner of the ordinary obligations to clear snow and ice while the storm is still ongoing. It has been rejected in a number of jurisdictions which have held that commercial landowners have a duty to take reasonable steps to make a walkway safe from foreseeable dangers, even during ongoing precipitation.
The doctrine was upheld in New Jersey where at common law, property owners had no duty to clear the public sidewalk adjoining their premises; both commercial and residential property owners were not liable for the condition of the sidewalk. The Supreme Court created an exception to that common-law rule and imposed a duty on commercial property owners to take reasonable measures to maintain the sidewalks adjoining their property and to keep those in reasonably good condition. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149, (1981).
In Pareja v. Princeton, the plaintiff, Angel Alberto Pareja, was walking to work in the early morning hours. It had been raining “a wintry mix of light rain, freezing rain, and sleet” and the precipitation continued as he walked. He slipped on ice on an unavoidable portion of sidewalk that connects the defendant’s driveway to the road and fell, breaking his hip. The weather reports confirmed freezing rain and temperatures of thirty-two to thirty-three degrees. Princeton’s property maintenance supervisor could not specifically recall whether the corporation had pre-treated the sidewalks that day although that was how they ordinarily prepared for storms since the company maintained two apartment buildings and two offices and thus had responsibility for a significant area of sidewalk and common walkways. The court’s refusal to permit recovery rested on its view of the unreasonableness of a duty to keep the road clear during the continued precipitation of a storm:
[C]ommercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm.” Reversing the lower court, which had imposed a duty of reasonable care, the Supreme Court of New Jersey reasoned that doing so “would create liability for those commercial landowners who “after actual or constructive notice, [fail] to act in a reasonably prudent manner to remove or reduce the foreseeable hazard. [c] But such a duty does not consider the size, resources, and ability of individual commercial landowners or recognize that what may be reasonable for larger commercial landowners may not be reasonable – or even possible – for smaller ones. While we trust juries to uphold their duties to evaluate reasonableness, we do not wish to submit every commercial landowner to litigation when it is not feasible to provide uniform, clear guidance as to what would be reasonable.” Pareja v. Princeton Int’lProperties, No. 084394, 2021 WL 2371260, at *6–7 (N.J. June 10, 2021)
In a footnote, the court adds: “The dissent suggests that all a landlord need do to avoid liability is to take such a simple measure as spreading salt. This ignores the diversity of storms a landlord may confront and that measures like spreading salt in a heavy snowstorm or ice storm can be ineffective or even enhance the danger, thus imposing an untenable duty of care on landlords.” It concludes: “We decline to impose a duty that cannot be adhered to by all commercial landowners.” The court distinguishes between the different capacities of smaller and larger businesses, which seems somewhat in tension with the objective nature of the standard of reasonable care. How does it justify its reasoning?
Do the rulings in Blyth,Lifson, and Pareja seem consistent or in tension? How would you seek to reconcile or distinguish them?
Note 5. In some instances, a corporate entity’s own protocols specify conduct that the company fails to meet. In such cases, it can be extremely helpful to the plaintiff to locate the relevant protocols during discovery and use them as evidence that even the defendant didn’t believe it was appropriate to do or to fail to do some act. Might this create perverse incentives to refrain from specifying particular protocols? What do you think are the advantages of formulating specific policies versus maintaining only general internal guidelines, or having none at all?
Check Your Understanding (3-4)
Question 1.Lifson’s majority opinion most accurately stands for the proposition that:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. Which of the following scenarios (loosely adapted from the cases in this unit), is likeliest to give rise to a finding of breach of duty by Manny?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
(19 Conn. Supp. 322)
The complaint alleges that James Wells was the owner of a golf club and that he left it for some time lying on the ground in the backyard of his home. That thereafter his son, the defendant James Wells, Jr., aged eleven years, while playing in the yard with the plaintiff, Judith Lubitz, aged nine years, picked up the golf club and proceeded to swing at a stone lying on the ground. In swinging the golf club, James Wells, Jr., caused the club to strike the plaintiff about the jaw and chin.
Negligence alleged against the young Wells boy is that he failed to warn his little playmate of his intention to swing the club and that he did swing the club when he knew she was in a position of danger. In an attempt to hold the boy’s father, James Wells, liable for his son’s action, it is alleged that James Wells was negligent because although he knew the golf club was on the ground in his backyard and that his children would play with it, and that although he knew or ‘should have known’ that *323 the negligent use of the golf club by children would cause injury to a child, he neglected to remove the golf club from the backyard or to caution James Wells, Jr., against the use of the same.
The demurrer challenges the sufficiency of the allegations of the complaint to state a cause of action or to support a judgment against the father, James Wells.
It would hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous that it is negligence to leave it lying on the ground in the yard. The father cannot be held liable on the allegations of this complaint. [c]
The demurrer is sustained.
Note 1. What conduct would need to be evaluated for a negligence action against the father versus a claim against the son?
Note 2. What was the untaken precaution in this case, if any? What facts would you change to create a clear negligence action against the father?
(396 So.2d 566)
In this tort suit, William C. Roberts sued to recover damages for injuries he sustained in an accident in the lobby of the U. S. Post Office Building in Alexandria, Louisiana. Roberts fell after being bumped into by Mike Burson, the blind operator of the concession stand located in the building. Plaintiff sued the State of Louisiana, through the Louisiana Health and Human Resources Administration, advancing two theories of liability: respondeat superior and negligent failure by the State to properly supervise and oversee the safe operation of the concession stand.[1] The stand’s *567 blind operator, Mike Burson, is not a party to this suit although he is charged with negligence.
The trial court order plaintiff’s suit dismissed holding that there is no respondeat superior liability without an employer-employee relationship and that there is no negligence liability without a cause in fact showing. We affirm the trial court’s decision for the reasons which follow.
On September 1, 1977, at about 12:45 in the afternoon, operator Mike Burson left his concession stand to go to the men’s bathroom located in the building. As he was walking down the hall, he bumped into plaintiff who fell to the floor and injured his hip. Plaintiff was 75 years old, stood 5’6 and weighed approximately 100 pounds. Burson, on the other hand, was 25 to 26 years old, stood approximately 6’ and weighed 165 pounds. At the time of the incident, Burson was not using a cane nor was he utilizing the technique of walking with his arm or hand in front of him. Even though Burson was not joined as a defendant, his negligence or lack thereof is crucial to a determination of the State’s liability. Because of its importance, we begin with it. Plaintiff contends that operator Mike Burson traversed the area from his concession stand to the men’s bathroom in a negligent manner. To be more specific, he focuses on the operator’s failure to use his cane even though he had it with him in his concession stand.
In determining an actor’s negligence, various courts have imposed differing standards of care to which handicapped persons are expected to perform. Professor William L. Prosser expresses one generally recognized modern standard of care as follows:
“As to his physical characteristics, the reasonable man may be said to be identical with the actor. The man who is blind … is entitled to live in the world and to have allowance made by others for his disability, and he cannot be required to do the impossible by conforming to physical standards which he cannot meet … At the same time, the conduct of the handicapped individual must be reasonable in the light of his knowledge of his infirmity, which is treated merely as one of the circumstances under which he acts … It is sometimes said that a blind man must use a greater degree of care than one who can see; but it is now generally agreed that as a fixed rule this is inaccurate, and that the correct statement is merely that he must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind.” W. Prosser, The Law of Torts, Section 32, at Page 151-52 (4th ed. 1971).
A careful review of the record in this instance reveals that Burson was acting as a reasonably prudent blind person would under these particular circumstances.
Mike Burson is totally blind. Since 1974, he has operated the concession stand located in the lobby of the post office building. It is one of twenty-three vending stands operated by blind persons under a program funded by the federal government and implemented by the State through the Blind Services Division of the Department of Health and Human Resources. Burson hired no employees, choosing instead to operate his stand on his own.
Prior to running the vending stand in Alexandria, Burson attended Arkansas Enterprises for the blind where he received mobility training. In 1972, he took a refresher course in mobility followed by a course on vending stand training. In that same year, he operated a concession stand in Shreveport, his first under the vending stand program. He later operated a stand at Centenary before going to Alexandria in 1974 to take up operations there. On the date of the incident in question, Mike Burson testified that he left his concession stand and was on his way to the men’s bathroom when he bumped into plaintiff. He, without hesitancy, admitted that at the time he was not using his cane, explaining that he relies on his facial sense which he feels is an adequate technique for *568 short trips inside the familiar building. Burson testified that he does use a cane to get to and from work.
Plaintiff makes much of Burson’s failure to use a cane when traversing the halls of the post office building. Yet, our review of the testimony received at trial indicates that it is not uncommon for blind people to rely on other techniques when moving around in a familiar setting. For example George Marzloff, the director of the Division of Blind Services, testified that he can recommend to the blind operators that they should use a cane but he knows that when they are in a setting in which they are comfortable, he would say that nine out of ten will not use a cane and in his personal opinion, if the operator is in a relatively busy area, the cane can be more of a hazard than an asset. Mr. Marzloff further testified that he felt a reasonably functioning blind person would learn his way around his work setting as he does around his home so that he could get around without a cane. Mr. Marzloff added that he has several blind people working in his office, none of whom use a cane inside that facility.
Mr. Marzloff’s testimony is similar to testimony received from Guy DiCharry, a blind business enterprise counselor with the Blind Services Division. As part of his responsibilities Mr. DiCharry supervised the Alexandria vending stand providing him with an opportunity to observe Mike Burson in a work setting. He testified that Burson knew his way around the building pretty well and that like most of his other blind operators, he did not use a cane on short trips within the building. He added that he discussed the use of a cane on such short trips as these with some of his other blind operators but they took offense to his suggestions, explaining that it was their choice. The only testimony in the record that suggests that Burson traversed the halls in a negligent manner was that elicited from plaintiff’s expert witness, William Henry Jacobson. Jacobson is an instructor in peripathology, which he explained as the science of movement within the surroundings by visually impaired individuals. Jacobson, admitting that he conducted no study or examination of Mike Burson’s mobility skills and that he was unfamiliar with the State’s vending program, nonetheless testified that he would require a blind person to use a cane in traversing the areas outside the concession stand. He added that a totally blind individual probably should use a cane under any situation where there in an unfamiliar environment or where a familiar environment involves a change, whether it be people moving through that environment or strangers moving through that environment or just a heavy traffic within that environment.
When cross examined however, Jacobson testified:
“Q. Now, do you, in instructing blind people on their mobility skills, do you tell them to use their own judgment in which type of mobility assistance technique they’re to employ?
A. Yes I do.
Q. Do you think that three (3) years is a long enough period for a person to become acquainted with an environment that he might be working with?
A. Yes I do.
Q. So you think that after a period of three (3) years an individual would probably, if he is normal … has normal mobility skills for a blind person, would have enough adjustment time to be … to call that environment familiar?
A. Yes.
Q. That’s not including the fact that there may be people in and out of the building?
A. Right.
Q. Now is it possible that if he’s familiar with the sounds of the people inside a building that he may even at some point in time become so familiar with the people in an area, regular customers or what not that you could *569 say that the environment was familiar, including the fact that there are people there, is that possible?
A. Uh … I would hesitate to say that, in a public facility where we could not … uh … control strangers coming in.
Q. Well, let’s say that a business has a particular group of clients that are always there, perhaps on a daily or weekly basis. Now you’ve stated that a blind person sharpens his auditory skills in order to help him articulate in an area?
A. With instruction, yes.
Q. Right. Isn’t it possible that if he can rely on a fixed travel of a fixed type and number of persons that it’s possible that that is a familiar environment even though there are people there?
A. Only if they were the same people all the time and they know him, yes.”
Upon our review of the record, we feel that plaintiff has failed to show that Burson was negligent. Burson testified that he was very familiar with his surroundings, having worked there for three and a half years. He had special mobility training and his reports introduced into evidence indicate good mobility skills. He explained his decision to rely on his facial sense instead of his cane for these short trips in a manner which convinces us that it was a reasoned decision. Not only was Burson’s explanation adequate, there was additional testimony from other persons indicating that such a decision is not an unreasonable one. Also important is the total lack of any evidence in the record showing that at the time of the incident, Burson engaged in any acts which may be characterized as negligence on his part. For example, there is nothing showing that Burson was walking too fast, not paying attention, et cetera. Under all of these circumstances, we conclude that Mike Burson was not negligent.
Our determination that Mike Burson was not negligent disposes of our need to discuss liability on the part of the State.
For the above and foregoing reasons, the judgment of the trial court dismissing plaintiff’s claims against defendant is affirmed and all costs of this appeal are assessed against the plaintiff-appellant.
Note 1. Do you understand the legal principles embedded in the court’s statement that “there is no respondeat superior liability without an employer-employee relationship and that there is no negligence liability without a cause in fact showing?”
Note 2. The court makes an effort to respect the autonomy of Mr. Burson as a blind man with considerable experience on the job and a great deal of comfort in his navigation of his workplace. Generally, is there a tension in applying the reasonable person standard (objectively) –albeit with modifications based on ability or disability– and respecting the rights of individuals to make choices they believe are reasonable (subjectively)? Why or why not? Is the standard inescapably ableist, or is it capable of (perhaps already succeeding in) reflecting a progressive view on differing abilities, by simply allowing category-wide modifications? Is this a system-wide issue in tort law that comes along with using objective versus subjective standards for conduct?
(92 Wash.2d 410)
UTTER, CHIEF JUSTICE.
[Billy Anderson, age 13 years, was driving a snowmobile belonging to defendant Lindsay, pulling plaintiff Kelly Robinson on an innertube attached to the snowmobile. Plaintiff’s thumb was severed when it was caught in the tow rope. The thumb was reattached, but still not fully functional at the time of trial. Plaintiff filed suit against Billy Anderson and Lindsay, the owner of the snowmobile.]
An action seeking damages for personal injuries was brought on behalf of Kelly Robinson who lost full use of a thumb in a snowmobile accident when she was 11 years of age. The petitioner, Billy Anderson, 13 years of age at the time of the accident, was the driver of the snowmobile. After a jury verdict in favor of Anderson, the trial court ordered a new trial. The single issue on appeal is whether a minor operating a snowmobile is to be held to an adult standard of care. The trial court failed to instruct the jury as to that standard and ordered a new trial because it believed the jury should have been so instructed. We agree and affirm the order granting a new trial.
The trial court instructed the jury under WPI 10.05 that:
“In considering the claimed negligence of a child, you are instructed that it is the duty of a child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances.”
Respondent properly excepted to the giving of this instruction and to the court’s failure to give an adult standard of care. The question of what standard of care should apply to acts of children has a long historical background. Traditionally, a flexible standard of care has been used to determine if children’s actions were negligent. Under some circumstances, however, courts have developed a rationale for applying an adult standard. In the courts’ search for a uniform standard of behavior to use in determining whether or not a person’s conduct has fallen below minimal acceptable standards, the law has developed a fictitious person, the “reasonable man of ordinary prudence.”
That term was first used in Vaughan v. Menlove, 132 Eng.Rep. 490 (1837). Exceptions to the reasonable person standard developed when the individual whose conduct was alleged to have been negligent suffered from some physical impairment, such as blindness, deafness, or lameness. Courts also found it necessary, as a practical matter, to depart considerably from the objective standard when dealing with children’s behavior. Children are traditionally encouraged to pursue childhood activities without the same burdens and responsibilities with which adults must contend. [C] As a result, courts evolved a special standard of care to measure a child’s negligence in a particular situation.
In Roth v. Union Depot Co., 13 Wash. 525, (1896), Washington joined “the overwhelming weight of authority” in distinguishing between the capacity of a child and that of an adult. As the court then stated, at page 544:
“[I]t would be a monstrous doctrine to hold that a child of inexperience—and experience can come only with years—should be held to the same degree of care in avoiding danger as a person of mature years and accumulated experience.”
The court went on to hold, at page 545, 43 P. at page 647:
“The care or caution required is according to the capacity of the child, and this is to be determined, ordinarily, by the age of the child. … [A] child is held … only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age.” [***] In the past we have always compared a child’s conduct to that expected of a reasonably careful child of the same age, intelligence, maturity, training and experience. This case is the first to consider the question of a child’s liability for injuries sustained as a result of his or her operation of a motorized vehicle or participation in an inherently dangerous activity.
Courts in other jurisdictions have created an exception to the special child standard because of the apparent injustice that would occur if a child who caused injury while engaged in certain dangerous activities were permitted to defend himself by saying that other children similarly situated would not have exercised a degree of care higher than his, and he is, therefore, not liable for his tort. Some courts have couched the exception in terms of children engaging in an activity which is normally one for adults only. See, e.g., Dellwo v. Pearson, 259 Minn. 452 (1961) (operation of a motorboat).
We believe a better rationale is that when the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care. Such a rule protects the need of children to be children but at the same time discourages immature individuals from engaging in inherently dangerous activities. Children will still be free to enjoy traditional childhood activities without being held to an adult standard of care. Although accidents sometimes occur as the result of such activities, they are not activities generally considered capable of resulting in “grave danger to others and to the minor himself if the care used in the course of the activity drops below that care which the reasonable and prudent adult would use…” Daniels v. Evans, 107 N.H. 407, 408 (1966).
Other courts adopting the adult standard of care for children engaged in adult activities have emphasized the hazards to the public if the rule is otherwise. We agree with the Minnesota Supreme Court’s language in its decision in Dellwo v. Pearson, supra, 259 Minn. at 457–58: “Certainly in the circumstances of modern life, where vehicles moved by powerful motors are readily available and frequently operated by immature individuals, we should be skeptical of a rule that would allow motor vehicles to be operated to the hazard of the public with less than the normal minimum degree of care and competence.” Dellwo applied the adult standard to a twelve-year-old defendant operating a motor boat. Other jurisdictions have applied the adult standard to minors engaged in analogous activities. Goodfellow v. Coggburn, 98 Idaho 202, 203–04 (1977) (minor operating tractor); Williams v. Esaw, 214 Kan. 658, 668, (1974) (minor operating motorcycle); Perricone v. DiBartolo, 14 Ill.App.3d 514, 520 (1973) (minor operating gasoline-powered minibike); Krahn v. LaMeres, 483 P.2d 522, 525–26 (Wyo.1971) (minor operating automobile). The holding of minors to an adult standard of care when they operate motorized vehicles is gaining approval from an increasing number of courts and commentators. [cc] The operation of a snowmobile likewise requires adult care and competence. Currently 2.2 million snowmobiles are in operation in the United States. 9 Envir. Rptr. (BNA) 876 [1978 Current Developments].
Studies show that collisions and other snowmobile accidents claim hundreds of casualties each year and that the incidence of accidents is particularly high among inexperienced operators. [c] At the time of the accident, the 13-year-old petitioner had operated snowmobiles for about 2 years. When the injury occurred, petitioner was operating a 30-horsepower snowmobile at speeds of 10–20 miles per hour. The record indicates that the machine itself was capable of 65 miles per hour. Because petitioner was operating a powerful motorized vehicle, he should be held to the standard of care and conduct expected of an adult.
The order granting a new trial is affirmed.
Note 1. The standard is typically reformulated along the lines of “what it is reasonable to expect of children of like age, intelligence and experience.” See Restatement (Second) of Torts § 283A and Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 10 (2010). What do you think of the inclusion of “intelligence” in this formulation?
Note 2. Do you think that local customs and mores should play a role in determining what counts as an adult activity? In the mountain states, the driving age is lower, partly as a consequence of the need to drive tractors and farm vehicles, and the operation of vessels on the water in areas surrounded by water may be much more common at a younger age in places like Washington State, Hawaii, Michigan or states in which life takes place around and on lakes, perhaps using fishing for sustenance. In one jurisdiction, deer hunting is considered an activity fit for children, thus subjecting the activity to the lower standard of care applicable to a child. What do you think of such a determination, and what do you think it might reflect? What sorts of evidence would you seek of what is ordinarily done, or known, in a given community? The next case takes up the question of custom evidence as a means of proving the breach element of the defendant’s conduct.
Note 3.Critiques of the “Objective” Standard. Professor Richard Delgado, one of the pioneers of critical race theory and “LatCrit” studies, has critiqued the allegedly objective nature of the objective standard in law.
[I]n many areas the law prefers “objective” over “subjective” standards for judging conduct. …Where does this preference come from, and what does it say about ourselves and our legal culture? Does the objective-subjective distinction hold up under analysis? When we rehearse the familiar arguments in favor of one approach or the other,[fn] what are we doing, and what is at stake? … [I]n many cases it is the stronger party… that wants to apply an objective standard to a key event. … Powerful actors … want objective standards applied to them simply because these standards always, and already, reflect them and their culture. These actors have been in power; their subjectivity long ago was deemed “objective” and imposed on the world. …It is no surprise, then, that judgment under an “objective” (or reasonable person) standard generally will favor the stronger party.
Richard Delgado, Shadowboxing: An Essay on Power, 77 Cornell L. Rev. 813, 818 (1992)
What do you think of Professor Delgado’s arguments about the nature of power and the role it may play in shaping our understanding of what is “reasonable”? In some instances, courts have attempted to tailor the standard or make incremental changes to the case law. For instance, in the context of sexual harassment, one court shifted from a reasonableness standard about a hostile workplace explicitly to focus on the victim’s perspective, reasoning that “[a] complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women… We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men… By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to “run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.” Ellison v. Brady, 924 F.2d 872, 878, 880-881 (9th Cir. 1991).
In the 21st century, using gender categories so blithely may no longer be considered as helpful as it once was; indeed some may find Ellison inappropriate or even harmful in its construction of gender in starkly binary terms. Yet this only underscores how dynamic tort law can and must be in recognizing changes in behavior and understanding fluid social constructs such as gender.
Note 4. Objective Reasonableness and Informed Consent. Delgado’s article [Shadowboxing: An Essay on Power, 77 Cornell L. Rev. 813 (1992)] offers three contexts in which to explore the question, including informed consent by medical providers. You may recall Cobbs v. Grant from Module 1, one of the earliest informed consent cases, which Delgado discusses in his article. He writes:
Before performing medical operations or other invasive procedures, doctors must communicate to the patient what a reasonable person would want to know about the material risks and benefits of the procedure… It is immaterial whether the patient has an undisclosed or highly personalized fear or preference that, if known, would have called for further information or a different course of action. The law requires only the doctor’s initial disclosure of “objective” information. [I]t is the rare doctor who asks the patient about her specific feelings and attitudes toward pain, incapacity, dependency, death, risk aversiveness, reproductive faculties, and religion—a few of the matters that could bear significantly on a medical decision. Answers to these questions might suggest to the doctor the necessity of further discussions with the patient, further disclosures, or a different course of treatment. The case law of informed consent makes clear, however, that the physician’s duty to disclose is simpler and more easily satisfied. The leading case in this area, Cobbs v. Grant, requires that the doctor disclose to the patient the reasonable risks and complications of the contemplated procedure and, beyond this, what a competent member of the medical community would disclose. Although more exacting standards have been proposed, they are not yet the law. Id. At 818 (emphasis added; internal citations omitted).
What do you think of Delgado’s arguments about the objective standard in the context of medical treatment? Do your views of the nature of “reasonableness” differ based on the contexts in which the standards may be used?
Note 5. Angela Onwuachi-Willig, has argued that a more finegrained and intersectional approach is necessary for greater equality and inclusion:
[C]ourts should employ a standard based on a reasonable person in the complainant’sintersectional and multidimensional shoes, rather than the ostensibly objective reasonable person standard—which some courts have declared to be male biased—when evaluating sexual harassment claims. Although many authors have argued for adopting a reasonable woman standard in harassment law, none have taken the further step of contending that the standard must also be rooted in an intersectional and multidimensional lens in order to capture the different ways that women across intersectional categories may experience any particular event or events. …Currently, antidiscrimination law employs what courts deem an objective victim standard to analyze sexual harassment claims. In so doing, the law ignores the complexities of how gender and racial subordination, stereotype, and bias can shape a victim’s vulnerability to harassment, her credibility in the eyes of factfinders, and others’ perceptions about whether she is harmed by the undesired conduct. It also disregards how a complainant’s own understanding of others’ perceptions about her group or groups, whether based on race, sex, or other identity factors like religion and age, can shape her own response to the harassment she is enduring. By adopting a standard based on a reasonable person with the complainant’s intersectional and multidimensional identity, courts can acknowledge how the current standard, though allegedly objective, is actually rooted in the experiences of white men, particularly because the case law has largely been developed by white male judges.
What About #UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale L.J. F. 105, 108 (2018) (internal citations omitted). If we take Onwuachi-Willig’s suggestion seriously, what might this require in the profession? Can judges and clerks working on cases, and lawyers advocating for clients adopt intersectional perspectives even as the legal profession works, slowly, to try to achieve greater institutional diversity? Is the jury a help or a hindrance in this regard? Should demographic evidence be used to shape the objective standard, regardless of the identities of the decisionmakers? When tailoring an objective standard to reflect some of the identity markers of the party to whom it applies, at what point does it transform from objective into subjective?
Note 6.Combined Uses of Objective and Subjective Standards. In one context, the Supreme Court has aimed for a balance by using both standards: “Title VII is violated when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment … This standard requires an objectively hostile or abusive environment—one that a reasonable person would find hostile or abusive—as well as the victim’s subjective perception that the environment is abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 368, 126 L. Ed. 2d 295 (1993)
As you learned in Ali v. Margate, however, employment discrimination claims are notoriously difficult to win. As you continue to learn about the way tort claims and defenses are structured and litigated, keep in mind the use of objective and subjective standards as well as the ways they work and for whom.
Check Your Understanding (3-5)
Question 1. Which of the following is an accurate statement of the rule in Robinson v. Lindsay:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Reflect On Your Understanding – Essay
What would it look like for tort law to use a different standard in place of objective reasonableness? What costs and benefits would flow to the system? What values would you prioritize in redesigning a system?
1. The United States of America was also originally made defendant but was dismissed without prejudice early in this suit on motion of plaintiff’s counsel. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/03%3A_Negligence/3.03%3A_Negligence-_Breach.txt |
Alvarado is a viscerally-disturbing case, or so some may find. In its reliance on Palsgraf, it provides a review of duty and breach as well as an opportunity to think about the implications of following different legal rules (such as the majority and dissenting opinions in Palsgraf).
Questions or Areas of Focus for the Readings
• What are the untaken precautions here?
• What are the social justice implications of finding or denying liability on these facts?
• Are there parties you would have liked to be able to reach (either intuitively, or normatively) to extend liability or to allocate it better?
• Do you see the difficulties involved with separating duty from breach in some instances?
(262 Wis.2d 74)
The petitioners, Dora Alvarado and her four minor children, seek review of a published court of appeals decision affirming a circuit court grant of summary judgment in favor of the respondents, Oakbrook Corporation, Meriter Retirement Services, Inc., and Meriter’s insurer. [fn] Alvarado asserts that the court of appeals erred in using public policy factors to limit liability before all the facts were considered. Because we conclude that there are genuine issues of material fact, we determine that the court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.
*79 Meriter Retirement Services, Inc. (Meriter) owns student apartments in Madison that are managed by Oakbrook Corporation (Oakbrook). On August 12, 1998, during the busy student turnover period, Oakbrook’s property manager walked through a vacated apartment to inspect the premises. In his deposition he testified that “cabinets” were on his checklist, but he did not remember checking them. On August 13, 1998, a painting crew entered the apartment. One of the painters discovered what he believed to be a “candle” in the kitchen cabinet. Another painter recognized it as a firework device. They moved the item out of the way and continued working. No one in the crew informed Oakbrook or Meriter about the firework.
On August 14, 1998, Dora Alvarado and Ron Boehm, the owner of the janitorial service retained by Oakbrook, entered the apartment to clean it. Alvarado had already completed a ten-to eleven-hour shift that day, but had been called back to work. Boehm noticed what he thought to be a candle on the windowsill. He commented to Alvarado that it was a “strange looking candle.” It was described as a wax candle with red, white, and blue colors, about six inches tall, and an inch in diameter. After Boehm left the apartment, Alvarado began cleaning the interior of the gas stove. She opened the stovetop to expose the burner trays for vacuuming. Alvarado knew it was necessary to preserve the flame of the pilot light, which occasionally extinguished during the cleaning process. Because she had forgotten to bring matches, she decided to use the “candle” to preserve the flame, and lit the device with the pilot *80 flame. The firework exploded as she was setting it down, blowing off most of her right hand.
Alvarado and her children filed a complaint in Dane County circuit court against Meriter, Oakbrook, the painting contractor, and each of their insurers. The plaintiffs sought damages as a result of Alvarado’s personal injuries. The circuit court granted Oakbrook and Meriter’s motion for summary judgment. It concluded that Oakbrook and Meriter did not have a duty of care to protect Alvarado from a potential harm they neither knew nor reasonably could have foreseen.
The court of appeals affirmed the circuit court’s grant of summary judgment for Oakbrook and Meriter, but employed a different rationale. Rather than focusing on negligence, the court of appeals considered public policy factors that limit a defendant’s liability. It concluded that the injury was too remote from the negligence, and in retrospect it appeared too highly extraordinary that the negligence should have resulted in the harm. Under this analysis, the court of appeals determined that public policy barred any imposition of liability, and therefore it affirmed the circuit court’s grant of summary judgment.
Alvarado seeks a reversal of the court of appeals’ decision, and a remand for a jury trial. She argues that it was improper for the court of appeals to use public policy considerations to limit liability before all the facts had been presented to a jury for a determination of negligence. She asserts that the grant of summary judgment was error because there remain genuine issues of material fact. [***]
Wisconsin has long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island Railroad. [c] In that dissent, Judge Andrews explained that “[e]veryone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.” Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928) (Andrews, J., dissenting). *82 Every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. Gritzner, 235 Wis.2d 781, ¶¶ 20 & 22. In Wisconsin a duty to use ordinary care is established whenever it is foreseeable that a person’s act or failure to act might cause harm to some other person. Id. ¶ 20. Under the general framework governing the duty of care, a “ ‘person is not using ordinary care and is negligent, if the person, without intending to do harm does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.'” [c]
The question of duty is nothing more than an “ingredient in the determination of negligence.” [c] Once it has been determined that a negligent act caused the harm, “the question of duty is irrelevant and a finding of nonliability can be made only in terms of public policy.” [c] The “duty” ingredient of negligence should not be confused with public policy limitations on liability. [fn] “[T]he doctrine of public policy, not the doctrine of *83 duty, limits the scope of the defendant’s liability.” [c] “In Wisconsin, one always owes a duty of care to the world at large, which is why ‘[t]he consistent analyses of this court reveal that the question of duty is not an element of the court’s policy determination.” [cc]
Thus, negligence and liability are distinct concepts. [c] After negligence has been found, a court may nevertheless limit liability for public policy reasons. [cc] The public policy considerations that may preclude liability are:
(1) the injury is too remote from the negligence;
(2) the injury is too wholly out of proportion to the tortfeasor’s culpability;
(3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm;
(4) allowing recovery would place too unreasonable a burden on the tortfeasor;
(5) allowing recovery would be too likely to open the way for fraudulent claims; [or]
(6) allowing recovery would enter a field that has no sensible or just stopping point.
Gritzner, 235 Wis.2d 781, ¶ 27.
In most cases, the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability. Only in those cases where the facts are simple to ascertain and the public policy questions have been fully presented may a court review public policy and preclude liability before trial. [Citations omitted]
A jury’s determination of negligence includes an examination of whether the defendant’s exercise of care foreseeably created an unreasonable risk of harm to others. [c] Public policy factors can also implicate the concept of foreseeability. In a sense, evidence regarding foreseeability can play a dual role. Besides having the aid of the jury’s opinion when assessing liability, a judge will also be *85 aided by the facts that were brought to light during the jury trial. Having examined the law, we next apply those principles to the facts in this case.
The court of appeals erred in affirming the summary judgment on public policy grounds. This case requires a full factual resolution before application of a public policy analysis. It is not one of those simple cases where public policy can be used to limit liability before finding negligence. Here, there remain genuine issues of material fact, and public policy factors limiting liability should be considered only after a full resolution of the facts at trial.
It is desirable to have a full trial to precede the court’s determination because the issues in this case are complex and the factual connections attenuated. [c] A jury will hear testimony about the standard of care that a reasonable property manager would exercise in inspecting a vacated apartment. Oakbrook and Meriter claim that there was no negligence on their part. Alvarado, however, claims that if Oakbrook had performed a thorough inspection of the apartment, as it should have, then the firework would have been found. In his deposition, Alvarado’s expert opines that industry practice is to conduct an adequate inspection before allowing employees and contractors onto the premises. He asserts that ordinary care requires a property manager to have a safety program which anticipates and addresses potential hazards:
“Well, they have a big responsibility in their capacity of managing residential housing…. There’s all kinds of things to be considered by a company that—that’s in *86 charge of managing property…. I could talk about that for hours, but the main idea is that you have to anticipate potential hazards and deal with them in some way. And having a hazardous material or hazardous item in an apartment is something that they’re required to anticipate and have a plan and a program to deal with.”[1]
This case is similar to Coffey, in which this court concluded that a full trial should precede a determination that policy considerations preclude liability based on a negligent inspection. Coffey, 74 Wis.2d at 543. In that case, a tenant suffered losses as the result of a fire at its leased premises. The tenant sued a building inspector and the City of Milwaukee claiming that they were negligent because the standpipes necessary to furnish the water to fight fire at the leased premises were defective and had not been properly inspected.
In examining whether public policy considerations should preclude liability, the Coffey court determined that a full factual resolution was necessary for a fair and complete evaluation of the policy considerations. The court explained that the case involved the complex issue of municipal tort liability arising out of the alleged negligence of a building inspector in carrying out fire inspections. The court concluded that findings as to actual negligence, damage, and the causal relationship between them would be material and helpful in evaluating the public policy considerations. Accordingly, it refused to preclude liability on public policy grounds prior to a full factual resolution.
*87 Analogous to Coffey, this case involves facts that are not simple to ascertain. It addresses the tort liability of property managers arising out of the alleged negligence of an inspector in carrying out apartment inspections. Like Coffey, a sufficient factual basis is not presented here for considering, evaluating, and resolving the public policy issues involved. Findings as to actual negligence, damages and the causal relationship between them would be material and helpful in evaluating the public policy considerations.
¶ The parties dispute the purpose of Oakbrook’s inspection. Alvarado claims part of the inspection’s purpose was safety, while Oakbrook contends the inspection was only to note needed repairs, cleaning, and security-deposit withholdings. A jury would hear testimony about what constitutes a proper inspection, and whether Oakbrook’s inspection satisfied that obligation. Ultimately, a jury would have determined whether Oakbrook had instituted adequate safety measures, and whether Oakbrook was negligent for failing to instruct contractors about what procedure to follow when a dangerous object is found.
When the circuit court granted summary judgment in favor of Oakbrook and Meriter, it concluded that Oakbrook and Meriter did not owe Alvarado a duty to exercise ordinary care. However, everyone owes a duty of ordinary care to all persons. The effect of the circuit court’s summary judgment was to limit the imposition of liability. [c]; Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183 (1956) (“whenever a court holds that a certain act does not constitute negligence because there was no duty owed by the actor to the injured party, although the act complained of caused the injury, such court is making a policy determination”).
*88 Likewise, albeit with a different rationale, the court of appeals limited liability by applying public policy factors. Neither the court of appeals nor the circuit court had the benefit of a full presentation of facts or a jury’s verdict on negligence before limiting liability. Because there remain genuine issues of material fact, summary judgment was erroneously granted.
Summary judgment is uncommon in negligence actions, “because the court ‘must be able to say that no properly instructed, reasonable jury could find, based on the facts presented, that [the defendants] failed to exercise ordinary care.’” [c] The concept of negligence is peculiarly elusive, and requires the trier of fact to pass upon the reasonableness of the conduct in light of all the circumstances, “ ‘even where historical facts are concededly undisputed.’” Id. Ordinarily, this is not a decision for the court.
In sum, we determine that there remain genuine issues of material fact. Here, public policy factors limiting liability should be considered only after a full resolution of the facts at trial. The court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.
¶ 32 DIANE S. SYKES, J. (dissenting).
I respectfully *89 dissent. The majority concludes that “the court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors.” I disagree. The court of appeals properly evaluated the public policy limitations on liability in this case, and properly did so in advance of trial, affirming the circuit court’s order of summary judgment.
As the majority notes, negligence law in Wisconsin is based on the dissent in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928)(Andrews, J., dissenting), in which Judge Andrews of the New York Court of Appeals described negligence as a breach of the duty shared by all members of society to “refrain[ ] from those acts that may unreasonably threaten the safety of others.” [c] This is the duty of ordinary care, and it is measured by reference to a “reasonable person” standard, which is applied to evaluate the nature and foreseeability of the risk of harm associated with the conduct in question in order to determine whether a defendant was negligent. [c] [***] *90 The determination of negligence is followed by a determination of causation and damages. [fn] Although these are generally factual questions for the jury, there are some circumstances, not implicated here, under which the determination of negligence involves a mixed question of fact and law. [c]
However, it is not always true that negligence causation damages = liability. Considerations of public policy may preclude the imposition of liability even where the facts establish that a negligent act or omission on the part of the defendant was a cause of the plaintiff’s damages. This is purely a question of law for the court. [c] (“The application of public policy considerations is a function of the court.”); [c] (“A finding of nonliability made in terms of public policy is a question of law which the court alone decides.”).
Accordingly, we observed last term that “in Wisconsin, common law limitations on liability are determined not by reference to the absence of a duty, *91 but as a matter of public policy.” [c] This is because “[a]ll members of society are ‘held, at the very least, to a standard of ordinary care in all activities.’” [c]. This distinction between the determination of negligence and the imposition of liability is consistent with the Palsgraf dissent: “As was said by Mr. Justice Holmes many years ago, ‘[t]he measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.’” Palsgraf, 162 N.E. at 102.
The majority recites the public policy limitations on liability but refuses to apply them, concluding that “[t]his case requires a full factual resolution *92 before application of a public policy analysis.” [***] I disagree.
I recognize that we have said it is usually “better practice” or “generally better procedure” to await resolution of the factual issues in a negligence case before submitting it to public policy analysis. [c] However, we have also said that “[t]he assessment of public policy does not necessarily require a full factual resolution of the cause of action by trial.” [cc] As a further example, in our seminal case on the tort of negligent infliction of emotional distress, we held:
The application of public policy considerations is a function solely of the court. While it is generally better *93 procedure to submit negligence and cause-in-fact issues to the jury before addressing legal cause, that is, public policy issues, … the circuit court or this court may grant summary judgment on public policy grounds before a trial or a court may bar liability on public policy considerations after trial. When the pleadings present a question of public policy, the court may make its determination on public policy grounds before trial. In contrast, when the issues are complex or the factual connections attenuated, it may be desirable for a full trial to precede the court’s determination. [c]
In this case this court is determining public policy considerations before trial because the facts presented are simple, and because the question of public policy is fully presented by the complaint and the motion to dismiss. [c] Thus, it is not uncommon for courts to decide on summary judgment that negligence liability should be limited based upon considerations of public policy. Some cases are factually uncomplicated and fully conducive to a pre-trial legal determination on the applicability of public policy limitations on liability. This is such a case.
The majority’s rejection of pre-trial public policy analysis in this case is unwarranted. To the extent that it discourages the lower courts from evaluating public policy liability limitations on motions for summary judgment, it will produce two divergent effects: 1) there will be an increase in unnecessary trials and appeals (where the circuit or appellate courts would otherwise have precluded liability pre-trial but now consider themselves constrained to do it only post-trial *94 because of the majority’s decision here); and 2) there will be an expansion of liability (where the circuit or appellate courts consider themselves constrained against precluding liability on public policy grounds because of the presence of a jury verdict on negligence).
While I have no quarrel with the “better practice” general rule noted above, I do not agree that the facts of this case are so complex that the evaluation of public policy limitations on liability must await a jury verdict on negligence, cause-in-fact and damages. Judicial gate-keeping on this potentially dispositive legal issue is extremely important given the breadth and potential reach of the definition of negligence in this state. This was an important part of the Palsgraf dissent. What we in Wisconsin refer to as public policy limitations on liability, Judge Andrews catalogued as factors that govern the court’s determination of legal or “proximate cause.”
Judge Andrews said that the duty of ordinary care is owed to all who might be injured as a consequence of an unreasonably risky (i.e., negligent) act or omission, but he also said “there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former.” Palsgraf, 162 N.E. at 103. The negligence, he said, might be “[a] cause, but not the proximate cause. What we [ ] mean by the word ‘proximate’, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.” Id. This judicial line-drawing relies upon “common sense” and “fair judgment,” and “endeavor[s] to make a rule in each case that will be practical and in keeping with the general understanding of mankind.” Id. at 104.
Public policy limitations on liability are decided by the court as a matter of law, but the majority nevertheless considers the “jury’s opinion” to be an “aid” to the court in making that decision. In this regard, the majority seems to be suggesting that the jury should influence the court’s assessment of whether public policy requires non-liability as a matter of law. Courts decide questions of law independently, without deference to the jury. As a practical matter, however, most judges find it difficult to throw out a jury verdict.
This case is amenable to a pre-trial application of the six-factor public policy analysis. The case is not complex, and the historical facts are undisputed. We do not need a jury verdict on negligence, causation, and damages in order to determine whether public policy requires nonliability as a matter of law. I agree with the court of appeals that the first public policy factor (remoteness) and the third (extraordinary result) preclude liability here, even if a jury were to find causal negligence on the part of the apartment owner and manager. I would also conclude that the second factor (disproportionality of culpability to injury) is implicated in this case.
Dora Alvarado’s injury was unquestionably tragic and devastating. But the accident that caused it occurred because she mistook a firework for a candle, and lit that firework in the pilot light of an oven that she was cleaning, in an attempt to preserve the pilot light flame in case it went out while she was vacuuming the oven’s interior. As a matter of law, such an injury is too remote from the alleged negligent inspection by the apartment owner and manager, as well as too extraordinary and too disproportionate to that alleged negligence. I would affirm the court of appeals.
*96 I am authorized to state that Justice DAVID T. PROSSER, JR. joins this dissent.
Note 1. Do you think it was reasonable for Alvarado to confuse a firework for a candle? Would your answer be relevant to your assessment of the case? The lower court’s ruling included a bit more factual detail that you might find helpful in considering that issue.
Many of the apartments managed by Oakbrook are occupied by University of Wisconsin students. Leases on these apartments generally run from August 15 of one year to August 14 of the next. Each year a high number of the apartments “turn over” during August. As apartments are vacated, an Oakbrook employee *756 walks through the apartments to inspect them for damage and to determine whether any cleaning or repairs are necessary.
In August of 1998, Oakbrook employee Larry Keleher was responsible for overseeing 240 rental units. Between 150 and 175 of these units turned over between August 12 and August 15 of 1998. Oakbrook’s “Operating Handbook” instructs employees to inspect apartments “thoroughly” and inspect all areas on a checklist. The checklist includes cabinets. Oakbrook does not have a hazardous materials policy and conducts no safety training for either its employees or its painting or cleaning contractors. Oakbrook’s manual does, however, generally advise employees to be safety conscious. Its manual states: “Staff should put safety first at all times. Staff should use common sense to not engage in work which endangers the safety and health of themselves and others.” Under the job description for various positions, including “property manager,” the manual states: “Continually inspect property and improvements for curb appeal, protection of property value, and potential safety hazards.” On August 12, 1998, Keleher conducted a move-out inspection of apartment 303 at Meriter’s West Main Street property. There is no evidence of complaints relating to the vacating tenant. During his inspection, Keleher did not see a firework device located in a wall-mounted cabinet in the kitchen. Keleher does not remember whether he opened any of the cabinets during his inspection.
The next day, August 13, three painters from D.P. Painters entered apartment 303 to paint at Oakbrook’s request. While in the kitchen, one of the painters found in the kitchen cabinet what turned out to be an M–250 firework, an explosive device equivalent *757 to one-quarter of a stick of dynamite. The firework was about four inches tall and about an inch in diameter with a wick in the top. Statements regarding its color varied, but there was general agreement that it was white with either red and blue, or red or blue, stripes. At least one of the painters believed that the firework was a candle. Another painter, who had previously seen an M–80 firework, recognized the object to be a firework explosive device. The painters removed the firework from the cabinet, but left it in the apartment and did not notify Oakbrook.
The day after the painters left, August 14, Alvarado and her supervisor, Ron Boehm, employees of a janitorial service employed by Oakbrook, entered and began cleaning apartment 303. Boehm noticed the firework device on the windowsill and said to Alvarado something to the effect: “That’s a strange looking candle.” Boehm described the device as a wax candle with a red, white, and blue exterior.
Alvarado similarly believed the firework was a candle and decided she could use it to relight the pilot light on a gas stove in the apartment. Alvarado knew that when she cleaned the top of the stove with a vacuum, the vacuum would extinguish the pilot light. She had no matches and decided to light the “candle” from the pilot light, vacuum the oven, and then relight the pilot light with the candle. Alvarado lit the device and it exploded, blowing off most of her right hand. Prior to the accident, Alvarado had no experience with any firework-type device.
During his eleven prior years of employment with Oakbrook, Keleher had not discovered or heard of anyone discovering fireworks in a property managed by Oakbrook, but he did know that hazardous and flammable materials had been found in an occupied apartment *758 in 1996. There is no evidence that any abandoned firework had ever been discovered in a Meriter-owned or Oakbrook-managed apartment. Neither party presented evidence of the frequency with which hazardous materials are left behind by vacating tenants.
Having read these additional facts, do any new questions or factors arise that seem relevant for the court’s analysis?
Note 2. In its 2002 ruling, the lower court stresses that its holding is case-specific, and it intends its impact to be narrow.
This case involves a highly unusual *770 cause of an injury to a cleaning person employed by a contractor. We do not hold that landlords have no obligation to assure that apartments are hazard-free prior to the time new tenants take occupancy. Neither do we suggest that landlords never have an obligation to search for hazardous materials. To take one of many possible examples, it might be that a landlord could be found negligent and held liable for failing to inspect for hazards if the landlord knew a vacating tenant was involved in the reckless use of firearms. Given this knowledge, the landlord might properly be held liable for permitting new tenants with children to take occupancy without a thorough inspection.
Do you think it would have had a narrow impact as applied in practice, had it not been reversed on appeal? From what you understand so far about duty and breach, should a ruling pertaining to duty be highly fact-specific? Alvarado v. Sersch, 257 Wis. 2d 769-770 (2002), rev’d, 262 Wis. 2d 74.
Note 3.Should Alvarado be able to rely on the apartment managers’ inspection for hazardous materials before allowing cleaners on the premises? Should the managers be required to provide hazardous materials training to every plumber or electrician or cleaner it hires, just in case they encounter hazardous materials onsite? (The court below formed and answered both of these questions succinctly: “Certainly not.”) What do you think it is reasonable for contractors and cleaners to expect under such circumstances? Might your answer depend on whether alternative sources of compensation for injury were available?
Check Your Understanding (3-6)
Question 1. Which of the following is an accurate statement about the court’s ruling in Alvarado v. Sersch (Supreme Court of Wisconsin 2003)?
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Expand On Your Understanding – Socratic Script: Alvarado v. Sersch (Part 1)
Question 1. Which justice’s view of duty from Palsgraf do you see represented in the case? How does Alvarado (2003) both build on and extend that reasoning from Palsgraf? Find textual evidence for your view in the language of the case.
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Question 2. In Wisconsin, how are duty and public policy formulated in relation to negligence?
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Question 3. The appellate court does not make entirely clear why Ms. Alvarado’s children are parties to the suit. Based on what you have been learning about tort law thus far, can you guess why they are joined?
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Check Your Understanding (3-7)
Question 1. True or false: The dissent in Alvarado is worried that narrowing the scope of judicial gatekeeping by rejecting pre-trial public policy analysis could result in a diminution in liability.
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Expand On Your Understanding – Socratic Script: Alvarado v. Sersch (Part 2)
Question 4. What rationales does the dissenting opinion offer for its critique of the majority opinion in Alvarado?
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Question 5. Do the dissent’s concerns seem plausible to you? What concerns would arise from following the dissent’s approach? Normatively, which set of concerns is preferable, assuming no perfect solution is available?
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Question 6. Notice how the dissent describes the facts of the case. How does Justice Sykes’ description frame the situation and how is that relevant to her legal analysis?
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Reflect On Your Understanding – Essay
What are the normative implications of a ruling like this one? Consider the industries and sub-industries involved and the different socioeconomic statuses of the various parties. Descriptively, Alvarado is bringing this suit against the owner of the apartment complex. Normatively, do you think it would be preferable if she were able to recover for her injuries directly through her employer (through workers’ compensation), or in the alternative, through the retailer of the fireworks/rocket on a theory of absolute or strict liability for explosives? What considerations would shape your thinking on this question? Does Alvarado deserve recovery here regardless of the tort doctrine or mechanism required to produce it? Or do countervailing concerns about the scope of tort liability justify withholding compensation on these facts, as Cardozo would likely have done based on his ruling in Palsgraf?
Negligence: Breach (Issues of Proof)
Determining whether conduct was reasonable can involve complicated questions of evidence and proof. In some torts cases, evidence has literally been destroyed in a fire or explosion, thus making the case harder to prove in litigation. In many other cases, there are missing facts or mysteries regarding how an accident came to happen. In a significant number of cases, plaintiffs must resort to using circumstantial evidence to build a case regarding the unreasonableness of the conduct. Over time, certain legal devices have arisen to provide shortcuts or to allow the parties to shift the burden of proof back and forth on certain points. One of these is the admissibility of industry standards or “custom evidence” that tends to establish what others similarly situated believed to be reasonable versus unreasonable.
(436 N.E.2d 502)
After trial by jury in a negligence suit for personal injuries, the plaintiff, Vincent N. Trimarco, recovered a judgment of \$240,000. A sharply divided Appellate Division, 82 A.D.2d 20, 441 N.Y.S.2d 62, having reversed on the law and dismissed the complaint, our primary concern on this appeal is with the role of the proof plaintiff produced on custom and usage. The ultimate issue is whether he made out a case. The controversy has its genesis in the shattering of a bathtub’s glass enclosure door in a multiple dwelling in July, 1976. Taking the testimony most favorably to the plaintiff, as we must in passing on the presence of a prima facie case, we note that, according to the trial testimony, at the time of the incident plaintiff, the tenant of the apartment in which it happened, was in the process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence was sudden and unexpected and the injuries he received from the lacerating glass most severe.
The door, which turned out to have been made of ordinary glass variously estimated as one sixteenth to one quarter of an inch in thickness, concededly would have presented no different appearance to the plaintiff and his wife than did tempered safety glass, which their uncontradicted testimony shows they assumed it to be. Nor was there any suggestion that defendants ever brought its true nature to their attention.
Undeveloped in the trial record is the source of a hospital record entry which ascribed the plaintiff’s injuries to a “fall through his bathroom glass door”. Obviously, this may have been taken into account by the jury, since its verdict called for a reduction of its \$400,000 gross assessment of damages by 40% to account for contributory negligence.[2]
As part of his case, plaintiff, with the aid of expert testimony, developed that, since at least the early 1950’s, a practice of using shatterproof glazing materials for bathroom enclosures had come into common use, so that by 1976 the glass door here no longer conformed to accepted safety standards. *504 This proof was reinforced by a showing that over this period bulletins of nationally recognized safety and consumer organizations along with official Federal publications had joined in warning of the dangers that lurked when plain glass was utilized in “hazardous locations”, including “bathtub enclosures”.[3] [***] And, on examination of the defendants ‘managing agent, who long had enjoyed extensive familiarity with the management of multiple dwelling units in the New York City area, plaintiff’s counsel elicited agreement that, since at least 1965, it was customary for landlords who had occasion to install glass for shower enclosures, whether to replace broken glass or to comply with the request of a tenant or otherwise, to do so with “some material such as plastic or safety glass”.
In face of this record, in essence, the rationale of the majority at the Appellate Division was that, “assuming that there existed a custom and usage at the time to substitute shatterproof glass” and that this was a “better way or a safer method of enclosing showers” (82 A.D.2d, p. 23, 441 N.Y.S.2d 62), unless prior notice of the danger came to the defendants either from the plaintiff or by reason of a similar accident in the building, no duty devolved on the defendants to replace the glass either under the common law or under section 78 of the Multiple Dwelling Law.[4][***]
Which brings us to the well-recognized and pragmatic proposition that when “certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that [the one charged with the dereliction] has fallen below the required standard.” [c] Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable conduct under all the circumstances, the quintessential test of negligence.
It follows that, when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care (Bennett v. Long Is. R. R. Co., 163 N.Y. 1, 4 [custom not to lock switch on temporary railroad siding during construction]), and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability (Levine v. Blaine Co., 273 N.Y. 386, 389 [custom to equip dumbwaiter with rope which does not splinter]). Put more conceptually, proof of a common practice aids in “formulat[ing] the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to judge of particular conduct under particular circumstances” (Pound, Administrative Application of Legal Standards, 44 ABA Rep, 445, 456–457).
The source of the probative power of proof of custom and usage is described differently by various authorities, but all agree on its potency. Chief among the rationales offered is, of course, the fact that it reflects the judgment and experience and conduct of many (2 Wigmore, Evidence [3d ed.], § 461; Prosser, Torts [4th ed.], § 33). Support for its relevancy and reliability comes too from the direct bearing it has on feasibility, for its focusing is on the practicality of a precaution in actual operation and the readiness with which it can be employed (Morris, Custom and Negligence, *506 42 Col. L. Rev. 1147, 1148). Following in the train of both of these boons is the custom’s exemplification of the opportunities it provides to others to learn of the safe way, if that the customary one be. (See Restatement, Torts 2d, § 295A, Comments a, b.)
From all this it is not to be assumed customary practice and usage need be universal. It suffices that it be fairly well defined and in the same calling or business so that “the actor may be charged with knowledge of it or negligent ignorance” (Prosser, Torts [4th ed.], § 33, p. 168; Restatement, Torts 2d, § 295A, p. 62, Comment a).
However, once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence (1 Shearman & Redfield, Negligence [rev ed], § 10). Before it can be, the jury must be satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did not (see Shannahan v. Empire Eng. Corp., 204 N.Y. 543, 550). After all, customs and usages run the gamut of merit like everything else. That is why the question in each instance is whether it meets the test of reasonableness. As Holmes’ now classic statement on this subject expresses it, “[w]hat usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not” (Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470).
So measured, the case the plaintiff presented, even without the [Editor’s insertion: improperly admitted evidence concerning a statute that applied to new installations of glass and not existing glass] *** was enough to send it to the jury and to sustain the verdict reached. The expert testimony, the admissions of the defendant’s manager, the data on which the professional and governmental bulletins were based, the evidence of how replacements were handled by at least the local building industry for the better part of two decades, these in the aggregate easily filled that bill. Moreover, it was also for the jury to decide whether, at the point in time when the accident occurred, the modest cost and ready availability of safety glass and the dynamics of the growing custom to use it for shower enclosures had transformed what once may have been considered a reasonably safe part of the apartment into one which, in the light of later developments, no longer could be so regarded.
Furthermore, the charge on this subject was correct. The Trial Judge placed the evidence of custom and usage “by others engaged in the same business” in proper perspective, when, among other things, he told the jury that the issue on which it was received was “the reasonableness of the defendant’s conduct under all the circumstances”. He also emphasized that the testimony on this score was not conclusive, not only by saying so but by explaining that “the mere fact that another person or landlord may have used a better or safer practice does not establish a standard” and that it was for the jurors “to determine whether or not the evidence in this case does establish a general custom or practice”.
Nevertheless, we reverse and order a new trial because the General Business Law sections [on future installations] should have been excluded. True, if a statutory scheme intended for the protection of a particular class, as is the one here, does not expressly provide for civil liability, there is responsible authority for the proposition that a court may, in furtherance of the statutory purpose, read in such an intent (see Martin v. Herzog, 228 N.Y. 164, 168; Restatement, Torts 2d, § 286; see, generally, James, Statutory Standards and Negligence in Accident Cases, 11 La. L. Rev. 95). Be that as it may, the fact is that the statutes here protected only those tenants for whom shower glazing was installed after the statutory effective date. Plaintiff was not in that class.
Thus, while new installations made during the three-year interval between July 1, 1973, the effective date of the new General Business Law provisions, and July, 1976, when plaintiff was injured, could have counted *507 numerically in the totality of any statistics to support the existence of a developing custom to use safety glass, defendants’ objection to the statutes themselves should have been sustained. Without belaboring the point, it cannot be said that the statutes, once injected into the adversarial conflict, did not prejudice the defendants. Nor is it any answer to suggest that balancing the risk of prejudice against the asserted relevancy of the statutes here was a supportable discretionary judicial act. Unlike hearsay, which at times may be rendered admissible by necessity, the other proof of custom here eliminates the possibility of this justification.
For all these reasons, the order should be reversed and a new trial granted. In so ruling, we see no reason for a retrial of the damages issue. Instead, the new trial will be confined initially to the issue of liability and, if plaintiff once again should succeed in proving that defendants were negligent, to the issue of apportionment of fault between the parties (cf. Ferrer v. Harris, 55 N.Y.2d 285).
Accordingly, the case should be remitted to Supreme Court, Bronx County, for further proceedings in accordance with this opinion.
Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new trial in accordance with the opinion herein.
Note 1. How does the court treat the evidence of industry custom, as well as the prescriptions by the legislature for the use of improved safety measures regarding glass in dwellings? What is the relevance of this extrinsic evidence to the plaintiff’s case?
Note 2. Why is the plaintiff’s conduct with respect to use of the shower raised?
Note 3. The court lists several rationales for the admission of custom evidence. What are they?
Note 4.Custom evidence as a“sword.”Trimarco clarifies that use of custom evidence is not conclusive (“common practice or usage is still not necessarily a conclusive or even a compelling test of negligence… Before it can be, the jury must be satisfied with its reasonableness.”) What effect does custom evidence have, in that case? Why is its use potentially powerful for the plaintiff?
Consider that case law continues, as Trimarco did, to cite this long-approved dicta: “What usually is done may be evidence of what ought to be done.” Texas & P.R. Co. v. Behymer, 189 U.S. 468, 470 (1903). Beving v. Union Pac. R.R. Co., 2020 WL 6051598, at *4 (S.D. Iowa Sept. 8, 2020).
Note 5.Custom evidence as a“shield. In Trimarco the court seems to suggest that compliance with custom could provide a defense: “when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care (Bennett v. Long Is. R. R. Co., 163 N.Y. 1, 4, 57 N.E. 79 [custom not to lock switch on temporary railroad siding during construction]). Despite Trimarco’s dicta regarding compliance with custom, such compliance is rarely successfully used as a shield against liability. Merely showing that you didn’t adopt a precaution, but neither did anybody else in your industry does not make that conduct reasonable. That was the scenario in the next case (excerpted).
Note 6. The T.J. Hooper, Second Circuit Court of Appeals (1932)
If evidence of customary practices can be used to establish breach, what happens if an industry is rapidly emerging (and norms aren’t yet settled, or behavior is unusually risky)? What about if the industry is one that evolves frequently and norms are hard to catalog? What if social changes to conduct or business practices end up meaning that an entire industry has failed to take the proper precautions?
Judge Learned Hand, an extremely important jurist on the Second Circuit, faced a dispute over losses of coal that plaintiff’s barges sustained when the defendant’s tug boats, towing the barges, were lost in a storm off the Jersey Coast. Had the tugboats been equipped with radios, the crew could have received a widely publicized warning from the Weather Bureau and made for a safe haven in the Delaware Breakwater. Defendant pointed to industry custom to argue that barge lines didn’t provide radio receiving sets to crews. Learned Hand upheld the lower court’s verdict against the defendants, writing: “[I]n most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”
The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932).
Can you think of areas of evolving technology, or changing practices around privacy and data collection, that would illustrate the need for a rule like this one? Professor Jennifer E. Rothman considers the issue in The Questionable Use of Custom in Intellectual Property, 93 Va. L. Rev. 1899 (2013): “Defenses to uses of others’ IP are generally rejected when deemed, either explicitly or implicitly, “unreasonable,” and courts frequently defer to customary practices to determine whether a use is reasonable. [fn] It is not easy to define what constitutes a reasonable use of another’s IP. A reasonable use is not the same as a just or moral use; instead, like the reasonable person standard in tort law, it asks more generally what is appropriate in a given circumstance, not what is optimal or ethical. Because it is difficult to determine when a use of another’s IP is reasonable and there is little available guidance, courts often use custom as a shortcut or proxy for such determinations.” Rothman worries that courts may entrench suboptimal behaviors simply because the behaviors are customary (no matter whether they are reasonable) and consequently fail to consider “reasonable” newer practices simply because those are not yet customary. How should rapidly evolving areas of law proceed with respect to custom evidence?
Circumstantial Evidence
A Primer on Burdens of Proof: Eventually, law students learn about the burden of proof in classes such as civil procedure and criminal law. However, in most law schools, students encounter issues pertaining to the burden of proof in tort law before they have gotten much past questions of jurisdiction in civil procedure. These issues are important to tort law yet are often assumed rather than explained in the cases assigned. This brief explanation is thus meant as a stopgap to assist your understanding in torts. The burden of proof is the party’s obligation to prove their case, but it applies to each claim or defense relevant to winning the case overall.
First, the burden of proof differs in criminal and civil cases. You’ve certainly heard the burden of proof in criminal cases since it’s so often evoked in legal dramas as well as in news accounts of significant criminal trials: the state must prove defendants’ guilt beyond a reasonable doubt. Lawyers tend to think of this as requiring something like a 90-95% likelihood of certainty. Note that in criminal cases, the prosecutor is proving guilt. In civil cases, it is appropriate to use “liability” instead. Although older cases still sometimes state that a party is “guilty of negligence,” be attentive to the confusion it could create to use the terms guilt and liability interchangeably and stick with liable instead. In most cases, civil claims must be proven by a preponderance of the evidence, which is more like 51%. The standard requires that the account be more likely than not to have happened in the way the moving party claims. There is a third standard somewhere in between, known as the clear and convincing standard. Legislators and courts can use this in instances in which they wish to ratchet up the difficulty of proving something, to signal some sort of protection or a policy emphasis in the law.
Second, the burden of proof includes different aspects: the burdens of production and persuasion.
Both parties carry the burden of persuasion and it never “shifts” between them; if the party cannot persuade the judge or factfinder to accept their account as the likelier one, they will lose. The burden of production consists of the party’s obligation to present sufficient evidence on a claim that they can win on that issue. Quite often the plaintiff will win on this issue if the opposing party does nothing to rebut or defeat that evidence. It is sometimes called the “burden of going forward.” This begins with the pleadings: the plaintiff introduces all her evidence and the judge must decide whether the plaintiff has offered enough evidence that the jury could conclude that the defendant was negligent. If the plaintiff can do this, she has made out a prima facie case, that is a case in which the jury does not have to side with the plaintiff, but could do so. Then the defendant responds with an answer attempting to produce enough evidence that the jury could not conclude in the plaintiff’s favor.
The burden of production may shift between the parties. Think of it like a tennis game in which a ball (the burden) may travel back and forth between the parties or be caught in the net, thus ending the play on a given issue (and possibly the entire case). For example, if a party, X, bears the burden of proving that another party, Y was negligent in their conduct and caused X’s injuries, X will lose the entire case if X cannot bear the burden of production on the existence of a duty running from Y to X. Perhaps X can plead a duty and Y cannot rebut it. As the moving party, X must next prove breach, causation and damages. On the questions of breach and causation, in particular, there may be many smaller factual questions in which gaps in the factual record require filling. The plaintiff’s case might fail if these gaps mean she cannot establish what the defendant did to cause her harm. In the materials that follow, you will learn several burden-shifting devices that assist in shifting the burden from one party to another so that the case will not fail too early. Sometimes the burden shifts, for instance, from the plaintiff, who must ordinarily prove breach by the defendant. If so, this burden-shifting will cause the defendant to have to disprove breach. Burden-shifting devices are one of the ways in which parties can prove or defend against negligence claims given the complexity and factual gaps that arise with frequency in the fact patterns in torts cases.
Using circumstantial evidence is not formally a burden-shifting device, but it is one of the mechanisms by which the law may slightly relax the burden of production in cases where direct or real evidence is unavailable. A party may satisfy their burden of production on an issue only to have the opposing party successfully rebut it, of course, but the theory holds that it is fairer to force this exchange than it would be to prematurely end a claim merely because the plaintiff lacked particular kinds of evidence at the outset.
In a subset of torts cases—particularly cases of injury caused by falling on a slippery or poorly maintained floor—plaintiffs may be unable to prove the source of their injury or to identify how the defendant breached their duty of due care. In traditional cases, a plaintiff may prove their case using “real evidence” such as physical objects, forensic data and documentary evidence including video recordings or employee logs. Or they may offer proof in the form of “direct evidence” such as eyewitness testimony or deposition of the defendant and related parties. Sometimes, however, these forms of evidence are unavailable or only partially so and the plaintiff must in some other way produce sufficient circumstantial evidence that the jury can draw inferences of the defendant’s negligence. The outcomes in these cases hinge on the strength and sufficiency of the evidence. The next cases focus on slippery fruit (and other foods) that may cause injury.
(179 Mass. 52) (Chief Justice Holmes)
The banana skin upon which the plaintiff stepped and which caused him to slip may have been dropped within a minute by one of the persons who was leaving the train. It is unnecessary to go further to decide the case.
Exceptions overruled.
Note 1. The plaintiff was injured in a “slip-and-fall” accident which is sometimes considered the “bread-and-butter” action of tort law, given the frequency with which such claims continue to be brought. Such actions are usually settled but sometimes involve significant injury or small but important points of law. They are also responsible for many safety measures taken by stores and other premises owners who fear liability and can pass the costs of precautions on to their consumers via raising the price of their goods, tickets or services. However, tort law does not seek to reduce risks to zero and premises owners are not the “insurers” of all who enter on their premises. How should courts determine the point at which liability for injury attaches? What sorts of inferences should be permitted when customers appear blameless but cannot explain the reasons for the accident that occurred? Banana peels are just the beginning.
(317 Mass. 245)
[***] When the plaintiff boarded the defendant’s motor bus at Cleary Square in the Hyde Park section of Boston at noon on October 2, 1934, it could have been found that there was on the floor in the aisle, near the front of the bus, a banana *252 peel ‘four inches long, all black, all pressed down, dirty, covered with sand and gravel, dry and gritty looking.’ When the plaintiff left the bus nine minutes later, she slipped and fell on the banana peel, which remained in the same position. Only three passengers were in the bus during the trip. It could have been found that Cleary Square was one terminus of the line, and that the bus remained there without passengers in it for ‘a minute or two’ at least. The bus was operated by one man.
The question is whether the foregoing basic facts warrant an inference of negligence on the part of the defendant or its operator. No one would be likely to enter the bus except servants of the defendant and passengers. In the ordinary course of events, no passenger would carry into the bus a banana peel, or a banana, in the condition shown by the agreed facts. Such a condition naturally would result from lying a considerable time on the floor. We think that it could be found that the peel had remained on the floor of the bus so long that in the exercise of due care the defendant should have discovered and removed it. [cc]
A number of cases in which the unexplained presence on floors or stairs of discarded parts of fruit was held insufficient evidence of negligence may be distinguished. In Goddard v. Boston & M. R. R., 179 Mass. 52, the banana peel did not appear to be other than fresh. In Mascary v. Boston Elevated R. Co., 258 Mass. 524 where a banana peel was much like that described in the Anjou case, it lay on stairs leading from the street, and might have been recently thrown there by a child in play. In McBreen v. Collins, 284 Mass. 253, and Newell v. Wm. Filene’s Sons Co., 296 Mass. 489, the plaintiff fell on a lemon or orange peel that showed no marks of age comparable to those in the present case. In other cases the cause of the injury was an apple core or other fruit which would become discolored sooner than a banana peel would become in the condition described in the evidence in the present case. [cc]
In accordance with the terms of the report, judgment is to be entered for the plaintiff as upon a finding for \$750.
So ordered.
Note 1. Why is the court discussing the condition of the banana (or lemon or orange) peel?
Note 2. What implicit theory does this observation address, when the court notes “no passenger would carry into the bus a banana peel, or a banana, in the condition shown by the agreed facts”?
Note 3. There is no evidence that a child actually has thrown the peel in this case. What purpose does it serve for the court, in dicta about an earlier precedent, Mascary, to add that the banana peel “might have been recently thrown there by a child in play”?
(109 Idaho 305)
On April 17, 1981, at approximately 1:00 p.m., Alta McDonald entered a Twin Falls Safeway Store to make a purchase. As she walked down the aisle, her foot went out from under her and she fell, landing on her right hip. Safeway had been conducting an ice cream demonstration since 10:00 a.m. that day. The substance that Mrs. McDonald slipped on was cream colored and appeared to be melted ice cream. As a result of the fall, Mrs. McDonald suffered severe injuries, requiring the replacement of a total hip transplant which she had received shortly before the fall. Thereafter, Alta McDonald brought the action for damages for injuries she had sustained, her husband joining with a claim for loss of consortium, services, care, comfort and companionship. A jury trial resulted in a special verdict finding Safeway’s negligence at 100% and awarding Alta McDonald damages of \$196,000 and Donald McDonald damages of \$35,000.
Safeway first assigns error to the trial court’s denial of its motion for summary judgment, asserting that reasonable minds could not differ on the issue of whether the actions of the Safeway employees were reasonable under the circumstances. For reasons which follow we conclude that the trial court properly denied the motion.
The complaint alleged, in part:
That on or about Friday, April 17, 1981, at some time prior to plaintiff Alta McDonald’s arrival at said store defendant negligently caused and/or permitted a slippery substance consisting of melted ice cream to be deposited and to remain *307 on the floor of said store in a place allowed for the passage of plaintiff and other customers and shoppers.
That defendant knew or reasonably should have known that slippery substances, including ice cream, would foreseeably be dropped by passing shoppers and would accumulate on the floor and would endanger the safety of persons walking on the floor. The melted ice cream had been dispensed negligently by the defendant and had been negligently allowed to remain on the floor for such a period of time immediately preceding the accident that persons of ordinary prudence in the position of defendant knew or reasonably should have known of the same, and in the exercise of ordinary care would have remedied the same, prior to the happening of the accident herein alleged. In spite of defendant’s notice of the presence of the melted ice cream on the floor, defendant negligently failed and omitted to remove the slippery substance within a reasonable time and failed to take any precaution to prevent injury to plaintiff and other invitees that foreseeably would be injured. The accident and injury hereinafter alleged were proximately caused by the negligence of defendant in causing the ice cream to be dispensed in a manner in which it was foreseeable that it would cause injury to others, and in causing and permitting the melted ice cream to remain on said floor and in failing to take reasonable precautions to prevent injury to plaintiff or to warn of the dangerous, unfit or unsafe conditions.
In its memorandum opinion denying Safeway’s motion for summary judgment, the trial court stated:
In most supermarket slip and fall cases the plaintiff merely slips on an item or slick spot, the presence of which cannot be explained by anyone. Normally, the hazard exists during the normal business operation of the supermarket. Naturally, in those cases, the focus of attention is on the knowledge, actual or constructive, of the market that the hazard involved was on the floor.
Here we have a substantially different situation. Three separate demos were being conducted on the premises of Safeway where food and napkins were being handed out to customers, including infants. This, giving plaintiff the benefit of all inferences, could have created an unreasonable risk of harm to people, even if the store had very efficient clean-up procedures. The mode of operation of the ice cream demo on a very busy Good Friday, combined with the abnormally large crowds and other demos, in and of itself could constitute an act of negligence on the part of defendant. It is also possible that Safeway should have taken super extraordinary supervisory precautions considering the mixture of ice cream and infants.
A jury question is presented regarding Safeway’s negligence.
Safeway argues that the McDonalds’ claim of negligence was based on two distinct theories, the first being that the Safeway employees had actual or constructive knowledge of the dangerous condition and failed to remedy it and the second being that by permitting three separate demonstrations on a busy sales day and furnishing ice cream to infants, Safeway created a foreseeable risk of harm to its customers. Safeway contends that it was entitled to an order of summary judgment on the negligence claim regardless of the theory upon which the McDonalds relied.
[***] Clearly, as to the first theory of negligence, the record before the trial court permitted the reasonable inference that Safeway knew or should have known of the dangerous condition, that it had sufficient time to remedy the situation and that in the exercise of *308 reasonable care, its employees should have cleaned the spill.
Safeway contends that Idaho law does not permit a plaintiff to recover under the second negligence theory, that is, negligent creation of a foreseeable risk of harm. That theory does not require that the owner or possessor of land have actual or constructive knowledge of the dangerous condition. Safeway insists that in dispensing with the knowledge requirement, the second theory is inconsistent with Idaho law regarding the liability of an owner or possessor of land for injuries to an invitee. In support of this proposition Safeway cites Tommerup v. Albertsom’s, Inc., 101 Idaho 1 (1980) wherein we stated:
The law is well settled in this state that to hold an owner or possessor of land liable for injuries to an invitee caused by a dangerous condition existing on the land, it must be shown that the owner or occupier knew, or by the existence of reasonable care, should have known of the existence of the dangerous condition.
In Tommerup, the plaintiff-appellant Mrs. Tommerup, had slipped and fallen on a cupcake wrapper which apparently had been discarded in the parking lot near the doorway of a grocery store. The record was devoid of evidence indicating that the condition which caused Mrs. Tommerup’s injury was anything other than an isolated incident. In Tommerup, we distinguished the “isolated incident” situation from circumstances where an alleged tortfeasor is charged with having actively created a foreseeable risk of danger in its course of business [***]. Certainly, the trial court could not have concluded as a matter of law that the presence of the ice cream on the floor was merely an isolated incident. Hence, it did not err in denying Safeway’s motion for summary judgment.
Safeway next complains that the trial court erroneously permitted the McDonalds to introduce certain opinion testimony *309 and expert testimony at trial. Safeway contends that the McDonalds’ counsel improperly elicited “expert testimony” from James Anderson, the Safeway’s store manager. This “expert testimony” consists of the following exchange:
COUNSEL: Wouldn’t you agree with me, Mr. Anderson, that two hours is more than ample time to insure cleaning up a spill like an ice cream spill and preventing an accident like this?
MR. ANDERSON: Yes.
The question and answer were not objected to at trial and the objection cannot be raised for the first time on appeal. [c] [***] The question posed by McDonalds’ counsel properly elicited testimony tending to rebut Anderson’s general line of testimony that the store had exercised due care.
[***] Safeway next maintains that the trial court erred in allowing McDonalds’ counsel to conduct an “experiment” during closing argument. At the opening of closing argument, McDonalds’ counsel unveiled a carton of Lucerne ice cream and placed a spoonful on a paper plate next to a thermometer and left it on counsel table in full view of the jury during his argument. When Safeway’s counsel inquired as to what the McDonalds’ counsel was doing, the McDonalds’ counsel stated, “I’m conducting an experiment. I’m not sure what the results are going to be, but I think it’s proper argument.” Safeway’s counsel objected. The trial court overruled the objection, concluding that the “experiment” was an allowable, demonstrative argument. *310 Safeway submits that the “experiment” was not supported by the evidence, and that the use of the ice cream during closing argument should not have been allowed unless it was supported by evidence already admitted. Moreover, Safeway contends that the trial court should have, at a minimum, cautioned the jury that the “experiment” was not evidence and should not be given any consideration in reaching its decision. Clearly, the “experiment” was not proper evidence; however, that fact may not have been apparent to the jury. It is generally stated in 75 Am.Jur. Trials § 197 (1974) that:
It appears to be entirely legitimate for counsel in addressing a jury to use, by way of illustration or elucidation, diagrams and maps or other visual aids not put in evidence, provided that the jury understands that they are employed merely for such purposes and are not evidence in any sense. However, the use of charts or diagrams by counsel has been held not permissible in the absence of adequate foundation in the form of material actually introduced into evidence.
In Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972), we approved the use of charts in closing argument so long as the record did not reflect any unfair, misleading or inflammatory tactics by counsel in the use of the chart. Research has revealed no case on point and counsel for both parties were unable to provide authority for their respective positions on this matter. Nonetheless, we conclude that the “experiment” should not have been allowed, in that experiments are admissible as evidence only during the evidentiary phase of the trial, when the opposing party has the opportunity for objection to foundation, cross-examination, and rebuttal. We strongly admonish counsel against such antics and would order a declaration of mis-trial but for the fact that a complete review of the record reflects that the effect and purpose of the experiment was only to establish that even a small chunk of ice cream requires an hour or two to fully melt at room temperature. Since two witnesses had testified to that phenomenon and since Safeway did not dispute it, the error was harmless and cannot be said to have changed the result of the trial. Appellants have the burden to show prejudicial error and this they have failed to do. [c] Because we conclude that the result would have been the same had this “experiment” not taken place, we do not deem the error to be cause for reversal. [c] [***]
In support of its motion for a new trial, Safeway alleged the following specific errors:
(1) The ice cream experiment was improper;
(2) The jury verdict was excessive and unreasonable; *311
(3) The verdict was contrary to the evidence; [***]
[The] asserted grounds in support of the new trial motion have been previously addressed in this opinion. We therefore affirm the judgment. Costs to respondents. No attorney fees.
Note 1. In your own words, how would you define “actual knowledge” versus “constructive knowledge”?
Note 2. What is the practical difference between the two theories of negligence: (1) failing to remedy a dangerous condition of which Safeway had actual or constructive knowledge versus (2) creating a foreseeable risk of harm by permitting three separate demonstrations on a busy sales day and furnishing ice cream to infants? Why does it matter to distinguish the theories?
Note 3. Without employee testimony, how do you think a court should determine whether there was “sufficient time” to remedy a dangerous situation? Is time the right proxy for constructive notice? What others can you imagine working well?
Note 4. If tort law forced stores to internalize the costs of all possible accidents on its premises, it would effectively convert such entities into “insurers” of the safety of customers and other entrants on its premises. This could overdeter the store’s managers and misalign the incentives for consumers to take their own proper precautions. A rational response to increasing the scope of storeowner liability is to take increased precautions and pass the costs of those on to the consumer. Consider the following case in which the store was not held liable for a customer’s slip and fall on a slippery floor, the source of whose wetness the plaintiff could not adequately prove. The court describes an employee’s testimony, in which “she estimated that 98 percent of her time was spent walking the floors of the store looking for hazards. She also testified that any employee who sees a hazardous condition on the floor is responsible for either cleaning it up or getting someone else to do so.” Another employee corroborated that and further testified:
“Q [ATTORNEY FOR APPELLANT]: Now, in terms of whether things were on the floor, were you required or were you supposed to patrol around the store and look for anything that could probably [sic] be on the floor?
A: Well, we were always walking around the store, pretty much at all times except when we were on break. So you don’t have an assigned route, but yes, we were always walking around the floor.
Q: And then if you noticed something on the floor, you were supposed to take care of it right away?
A: Yes.”
Maans v. Giant Of Maryland, L.L.C., 161 Md. App. 620, 631 (2005)
Does this strike you as the optimal level of precaution in practice? Might some precautionary practices develop in order to defeat legal claims rather than out of a conviction that they will optimize for safety and employee efficiency?
Note 5.Dangerous Methods of Operation. Are you persuaded by the distinction of “isolated incidents” versus “continuous or recurring” conditions? In nearly two dozen jurisdictions, some version of a “recurring condition” rule has arisen to cover situations in which a business regularly confronts hazards associated with its “mode of operation.” Kelly v. Stop & Shop, Inc., 281 Conn. 768, 783 (2007)(noting that there is a “distinct modern trend favoring the rule, and it appears that most courts that have considered the rule have adopted it”; Kelly reversed judgment for the defendant on the grounds that plaintiff should be allowed to adopt the mode of operation theory of negligence after she slipped on a “wet and slimy” piece of lettuce and found herself on the floor next to the cottage cheese and other fruit she’d been serving herself from the salad bar. While she lay there, an employee appeared at her feet to sweep up the cottage cheese and fruit. Id. at 253). This doctrine has often been justified by the growing number of self-serve restaurants or food service points in supermarkets.
For example, in Jasko v. F. W. Woolworth Co., 177 Colo. 418 (1972), an early and influential case, the plaintiff slipped and fell on a slice of pizza that had wound up on the terrazzo floor of the defendant’s store. The shop sold slices of pizza on waxed paper sheets to 500-1,000 buyers every day and there were no chairs or tables by the pizza counter. Hence most consumers stood in the shop while they ate. The court record showed that so many slices were dropped daily that porters were continually sweeping it up. The appellate court affirmed the trial court’s dismissal on the grounds that the defendants lacked actual or constructive knowledge of the dangerous condition. The Supreme Court of Colorado reversed, reasoning that “when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive notice of the specific condition need not be proved.” Although the Colorado state legislature enacted legislation to preempt common law duties of landowners, the case continues to be cited with approval for this doctrine. The dangerous mode of operation doctrine is sometimes criticized for being a form of strict liability; can you see why?
The next hypothetical applies the doctrine outside the context of food service to provide students with practice synthesizing the rules for duty and breach and applying them to new facts.
Expand On Your Understanding – Slip-and-Fall Synthesis Exercise
Irina Shea was injured when she slipped and fell on ice near the exit of the Lett’s Downtown Car Wash in Coeur d’Alene, Idaho. She fell when she exited her vehicle to adjust her mirrors, which had been moved during the car wash. Shea alleged that Lett’s owner, Kevic Corporation, was negligent in allowing ice to build up near the car wash exit or in failing to warn of the danger of ice buildup. Kevic did not use any warning signs, barriers, sanding or melting devices to warn or protect business patrons from the hazardous conditions.
Shea testified in her deposition:
Q. And when you were walking—when you got out of your car, when you first put your feet on the ground as you got out of the driver’s seat, do you recall whether the ground was wet?
A. It was not wet.
Q. Was it dry?
A. It was dry. Everything was just amazingly dry just like right now.
Q. Okay, and when you walked around by the headlight—
A. Yeah. When I was just making around first move, and apparently there was water trickling down from underneath my car—from my car wash.
Q. Was it water or was it ice or what was it?
A. I don’t know because when—I fell right away, and apparently it was slippery, so it was maybe water and ice all together.
Shea also testified that, as she was “getting out of the car and putting the tip money and as [she] started to walk around,” she did not see any snow or ice on the ground. Shea explained, “There was just nice weather, and everything was so dry. Nothing would suggest that it could be that.” Shea stated that she did not see what she slipped on. She also stated that she did not notice any ice around her car before or after she fell. After her fall, she explained, “It was so dry and nice.”
Lett’s manager is John Lett. In Lett’s deposition, he testified that every car that comes out of the car wash “is dripping a little water” and he agreed that “when it’s cold … the water that vehicles … track from the car wash … freezes.” Lett also testified that “[t]he employees are instructed to spread de-icer on the icy areas as needed.” Lett discussed his actions and observations immediately following Shea’s accident. Lett was working at the car wash the day of the accident, and he explained that an individual notified him that someone had fallen and broken their wrist in the car wash parking lot. Lett went over to the car wash exit and assisted the injured person, Shea, in getting out of the vehicle and obtaining medical treatment. During this discussion of the events following Shea’s accident, Lett was asked, “And at the exit of the car wash that day what were the conditions like?” He responded, “It was cold and icy.”
The temperature on the day of her alleged accident ranged from 28.9 degrees Fahrenheit to 38.9 degrees Fahrenheit.
Shea sought over \$30,000 in damages. Kevic concedes that Shea had the status of an invitee on the car wash premises and Idaho follows the status-based rule for duties of possessors of land.
First: Practice stating the rule for duty under these circumstances.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Second: Practice breach analysis using circumstantial evidence.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Third: Skipping causation, which you have not yet learned, what conclusion would you draw regarding Kevic’s liability?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. Deposition testimony of Frank Burg, P.E., September 29, 2000, p. 34.
2. The chart had been put in evidence in unredacted form as part of the plaintiff’s medical proof.
3. The organizations included the National Safety Council, the American National Standards Institute and the Consumer Safety Commission. One of the governmental publications, issued by the United States Health Department, was entitled Glass Door Injuries and Their Control and another, emanating from the United States Product Safety Commission, was entitled Hazard Analysis—Injuries Involving Architectural Glass.
4. Subdivision 1 of section 78 of the Multiple Dwelling Law provides: “Every multiple dwelling * * * and every part thereof * * * shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section”. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/03%3A_Negligence/3.04%3A_Negligence-_Policy_Considerations_Regarding_Duty_and_Breach_%28Socratic_Script%29.txt |
Statutory Violations as Negligence Per Se Restatement (3d) on Torts § 14 (2010)
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.
Definition. Negligence per se is a doctrine with an evidentiary and a substantive effect that pertains to one party’suse of the other party’salleged violation of a statute to prove the defendant’sbreach of their duty of care. The rationale behind the doctrine is that in some cases the legislature may be deemed to have specified the appropriate standard of care and this may be “borrowed” for the factfinders assessing the standard of care in a given case. Negligence per se applies to statutes but it is usually also extended to municipal ordinances and administrative regulations, so the term “the law” in part (2) of the formulation below should be construed broadly.
Because negligence per se could be considered as removing the question of breach from the jury’s determination—substituting the legislature’s judgment for the jury’s, effectively—the doctrine requires careful determinations of whether it will apply at all and, if it does apply, what effect it will have on the jury’s decision making.
Before the doctrine can be applied (usually by the jury), the judge determines the applicability of the alleged violation, with a two-pronged inquiry. First, the violation must be proven by the plaintiff. This is not necessarily the difficult part of the test. There may be visual evidence available from a speed camera or closed-circuit video; documentary evidence that someone furnished a minor with liquor; or other modes of easily proving the statute’s violation, in addition to more expensive means of proof including calling eyewitnesses. Still, the plaintiff cannot take this step for granted. Second, the statute’s applicability for purposes of determining breach requires a four-part test. Only if all four requirements ((2)a-d, below) are met will negligence per se apply. Concretely, then, this means that negligence per se may be applied:
(1) when a civil statute or ordinance is violated, and
(2) when the law that has been violated is designed to
(a) protect a class of persons which includes the person whose interest is invaded,
(b) protect the particular interest which is invaded,
(c) protect against the kind of harm which resulted, and
(d) protect that interest against the particular hazard from which the harm results.
Exam tip: When facing a negligence per se scenario, be sure to methodically check off each of these requirements! On a test, it may be just a few points lost for failure to do so. In court, the entire case might live or die based on one of these elements.
(2011 WL 2174036)
*1 Kevin McCarthy brings claims of negligence and negligence per se against Weathervane Seafoods, arising from injuries he sustained when he fell from a ladder while attempting to climb to the roof of a Weathervane restaurant to repair a leak. Weathervane moves for summary judgment, contending that the negligence claim fails because Weathervane owed no duty to McCarthy and the negligence per se claim fails due to a lack of a statutory basis for the claim. McCarthy objects to the motion.
Weathervane Seafoods operates several restaurants in New Hampshire, including a restaurant located at 174 Daniel Webster Highway in Nashua. During the events at issue in this case, McCarthy was self-employed as a heating, ventilation, air conditioning, and refrigeration technician doing business as Maxair.[1] McCarthy was approved to provide service to the HVAC units at Weathervane restaurants, including the Nashua restaurant, and had provided service on several occasions before the accident that is the basis for this case.
On June 13, 2010, Jennifer Burgess, Assistant Manager at the Nashua Weathervane restaurant, asked McCarthy to inspect and repair a leak in the roof of the restaurant. McCarthy inspected the leak from the kitchen area and then decided he would have to go up on the roof. McCarthy had been told previously that there was a ladder chained to a pipe behind the restaurant, which was used to access the roof. McCarthy found the ladder, unchained it, and extended it up the side of the restaurant. Burgess watched McCarthy set and climb the ladder. As McCarthy got near the top of the ladder, the bottom slipped out, and he fell. McCarthy was badly injured in the fall. [***]
Weathervane moves for summary judgment on the grounds that McCarthy cannot prove his negligence claim because Weathervane did not owe him a duty to protect against an open and obvious danger and because Weathervane did not know nor should it have known of the slippery condition where the ladder was located. Weathervane also contends that McCarthy failed to state a negligence per se claim. McCarthy objects, arguing that Weathervane breached its duty of reasonable care and duty to warn and that his negligence per se claim is based, properly, on Occupational Safety and Health Administration (“OSHA”) regulations and New Hampshire regulations.
A. Negligence
*2 “To recover for negligence, a plaintiff must demonstrate that the defendant had a duty, that he breached that duty, and that the breach proximately caused injury to the plaintiff.” [c] “Whether a duty exists in a particular case is a question of law.” [c] [***] In his negligence count, McCarthy alleges that Weathervane “failed to provide a safe and secure restaurant, ladder, rear exterior of the restaurant or roof of the restaurant.” More specifically, McCarthy alleges that Weathervane “allowed a hazardous condition to exist in the area where the ladder had been placed causing the ladder to slide out from under Mr. McCarthy.” Weathervane challenges the claim to the extent that McCarthy alleges negligence because the ladder with which he was provided was too short. In response, McCarthy defends his negligence claim on the ground that Weathervane was negligent because the area where the ladder was placed was slippery due to grease build-up.
1. Ladder
McCarthy alleges, in part, that Weathervane failed to provide a safe and secure ladder because the ladder was too short to provide safe access to the roof. Weathervane contends, in support of summary judgment, that even if the ladder it provided was too short, that defect was open and obvious. A landowner does not have a duty to warn or instruct of a dangerous condition on the premises if it is open and obvious. [c]
In objecting to summary judgment, McCarthy does not respond to Weathervane’s argument that the alleged defect in the ladder was open and obvious. Instead, McCarthy focuses on the slippery condition of the area where the ladder was located. Because McCarthy does not pursue a claim that Weathervane was negligent for providing a ladder that was too short, Weathervane is entitled to summary judgment on that part of the negligence claim.
2. Condition of the Back Dock Area
“A premises owner owes a duty to entrants to use ordinary care to keep the premises in a reasonably safe condition, to warn entrants of dangerous conditions and to take reasonable precautions to protect them against foreseeable dangers arising out of the arrangements or use of the premises.” [c] “[A] premises owner is subject to liability for harm caused to entrants on the premises if the harm results either from: (1) the owner’s failure to carry out his activities with reasonable care; or (2) the owner’s failure to remedy or give warning of a dangerous condition of which he knows or in the exercise of reasonable care should know.” [c]
*3 [***] [Employees testified that] during the frying operations at the restaurant, the cooks skim debris out of the frying oil and put it into an empty cardboard box. When necessary, one of the cooks takes the box out to the dumpster behind the restaurant. The grease in the boxes drips onto the pavement behind the restaurant, known as the back dock area, on the way to the dumpster. The restaurant managers discussed the problem of grease buildup in the back dock area, and the grease problem had to be addressed daily. [***] [C]ompany policy required the back dock area to be kept clean from grease and oil and not to be slippery. [***] [G]rease from the fryers was permanently on the pavement in the back dock area. [***] [A]nother employee testified that they had used a power washer with degreaser to clean the back dock area until the power washer broke, two months before McCarthy’s accident. Weathervane did not replace the power washer, so the employees used a less powerful hose without degreaser to try to clean the area.
The Weathervane regional manager testified that he checked the back dock area at the Nashua restaurant regularly. He said that he was checking for cleanliness, trash, and to be sure that it was grease-free. He stated that grease in the back dock area was a safety concern. The regional manager testified that when grease built up in the area, the employees were supposed to clean it or, if necessary, hire someone who could clean it. He also testified that he had reviewed comments in forms from the Nashua Weathervane about grease buildup in the back dock area.
After the fall, McCarthy was treated by EMTs from the Rockingham Regional Ambulance service. One EMT who was kneeling next to McCarthy to provide treatment noticed when he stood up that the knees of his pants and tips of his shoes were coated with a significant amount of grease. He said that the grease smelled like fish and required several washings to remove.
McCarthy’s evidence of grease on the pavement in the back dock area where he attempted to use the ladder to access the roof demonstrates at least a disputed issue of fact as to whether Weathervane knew or should have known that the grease that accumulated there was a safety issue. Although Weathervane states that McCarthy inspected the area where he put the ladder, the evidence cited in support of that statement was not provided in the record. In contrast, McCarthy provided his interrogatory answer in which he stated that after falling he noticed the pavement was covered with grease and that he could not have seen the grease before climbing the ladder because it was lightly raining which caused all of the pavement to appear to be wet.
*4 Therefore, Weathervane has not shown that it is entitled to summary judgment on McCarthy’s negligence claim based on the slippery condition of the back dock area.
B. Negligence Per Se
In Count II of his complaint, McCarthy alleges negligence per se, stating that Weathervane “is responsible for operating the restaurant in compliance with Federal and State labor laws and regulations” and “[i]n particular, Weathervane Seafoods is responsible for complying with OSHA regulations and New Hampshire state laws pertaining to ladder safety.” McCarthy further alleges that “the Weathervane Seafoods failed to comply with OSHA and New Hampshire state laws pertaining to ladder safety. See e.g. RSA 277:2.” McCarthy continues by alleging that Weathervane allowed “an unsafe and non OSHA or New Hampshire compliant ladder to be used to access the roof of the restaurant.”
Under the negligence per se doctrine, the standard of conduct is provided by statute. [c] The negligence per se doctrine applies if “the injured person is a member of the class intended by the legislature to be protected, and … [if] the harm is of the kind which the statute was intended to prevent.” Id. (internal quotation marks omitted). In addition, “[a]n implicit element of this test is whether the type of duty to which the statute speaks is similar to the type of duty on which the cause of action is based.” Id. (internal quotation marks omitted).
Weathervane contends that McCarthy’s negligence per se claim fails because the New Hampshire statute cited, Revised Statutes Annotated (“RSA”) § 277:2, is inapposite to the circumstances in this case, because OSHA regulations cannot provide the basis for a negligence per se claim, and because McCarthy cannot add new grounds for the claim in response to a motion for summary judgment. In response, McCarthy contends that he cited RSA 277:2 only as an example of a statute pertaining to the ladder provided by Weathervane, cites New Hampshire Labor regulations as the basis for his claim, and argues that OSHA regulations can support a negligence per se claim. [***]
1. RSA 277:2.
RSA chapter 277 governs employment by “the state or any of its political subdivisions.” RSA 277:1–b, II. RSA 277:2, which requires, among other things, that the state or a political subdivision acting as an employer provide proper protection to employees who are using a ladder to make repairs, does not apply to Weathervane, which is not the state or one of its political subdivisions. Therefore, to the extent McCarthy’s negligence per se claim is based on RSA 277:2, Weathervane is entitled to summary judgment.
2. State Regulations
*5 McCarthy argues in his objection to summary judgment that certain New Hampshire labor regulations pertaining to ladders are the basis for his negligence per se claim. McCarthy also argues that Weathervane was negligent per se because the buildup of grease in the back loading area violated certain sections of the International Building Code and International Property Maintenance Code, incorporated into New Hampshire law by RSA 155–A:2. Weathervane responds that McCarthy cannot identify new grounds for his claim for purposes of avoiding summary judgment.
[***] In this case, McCarthy alleges that Weathervane’s failure to adhere to New Hampshire’s laws pertaining to ladder safety constituted negligence per se. In his objection, McCarthy identifies New Hampshire Code of Administrative Rules, Labor 1403.30, and contends that the ladder provided by Weathervane was too short, in violation of the regulation. McCarthy also represents that he identified Labor 1403.30 as a basis for his negligence per se claim in discovery provided to Weathervane. Given McCarthy’s pleadings and the disclosure of Labor 1403.30, specifically, in discovery, that part of McCarthy’s negligence per se claim is not a new claim for purposes of summary judgment.
McCarthy also asserts in his objection that his negligence per se claim is based on the slippery condition of the back area where the ladder was located and contends that the slippery condition violated Section 116 of the International Building Code and Section 302.1 of the International Property Maintenance Code. McCarthy did not allege the slippery condition in his complaint as a basis for his negligence per se claim and did not reference the International Building Code or the International Property Maintenance Code. [***] *6 Because McCarthy did not allege the factual basis for negligence per se based on slippery conditions or either Code that he now cites, those grounds for his negligence per se claim were not part of his complaint. McCarthy cannot raise a new claim in his objection to summary judgment.
3. OSHA Violations
[***] The New Hampshire Supreme Court has not decided whether a violation of an OSHA regulation could support a state law claim for negligence per se. [***] [However T]he First Circuit has held that a state law negligence per se claim cannot be based on a violation of an OSHA regulation. Weathervane is entitled to summary judgment on McCarthy’s negligence per se claim to the extent it is based on an OSHA violation.
Weathervane also argues that even if an OSHA violation could support a negligence per se claim, OSHA regulations apply to employers and therefore do not apply in the circumstances of this case where McCarthy was an independent contractor. [c] That issue need not be resolved in light of the First Circuit’s holding in Elliot that OSHA violations cannot be the basis for state law negligence per se claims.
*7 For the foregoing reasons, the defendant’s motion for summary judgment (document no. 10) is granted to the extent that the plaintiff’s negligence claim is based on a theory that the ladder provided was too short and to the extent the negligence per se claim is based on RSA 277:2, violation of the International Building Code or the International Property Maintenance Code due to a slippery condition, and OSHA regulations. The motion is otherwise denied.
The plaintiff’s remaining claims are:
(1) negligence based on the alleged slippery condition of the area where the ladder was located, and
(2) negligence per se based on an alleged violation of New Hampshire Administrative Code, Labor 1403.30.
SO ORDERED.
Note 1. McCarthy’s claim survives based only on the basis of the grease buildup even though the ladder was unlawfully short. Does it seem overly technical to insist on using negligence per se in this fashion, or does it seem consistent with the various hurdles and limitations created to guide its proper use?
Note 2. A few months later, a subsequent ruling for the defendant granted summary judgment on the negligence per se claim relating to Weathervane’s alleged violation of New Hampshire Administrative Code Labor 1403.30. It ruled that this statute did not apply to independent contractors such as McCarthy providing services to private entities such as Weathervane, thus leaving only the common law premises liability negligence claim against Weathervane for its slippery conditions. McCarthy v. Weathervane Seafoods, No. 10-CV-395-JD, 2011 WL 4007406, at *1 (D.N.H. Sept. 8, 2011)
It matters (descriptively) what statute or regulation was violated, as McCarthy makes clear. If the work of determining breach of duty is to be taken from the jury and prescribed by statute, there ought to be normative justifications for that divestiture of jury authority, such as careful alignment with legislative purpose and scope. But should it be taken from the jury in the first place? Furthermore, does parsing the statutes in this way make determinations of negligence overly formalist and risk diminishing the substantive justice of the outcome? Put another way, should the statute that sets standards for government buildings not apply in this case involving a privately owned building simply because the statute’s applicability is limited to government-owned buildings? And why should OSHA standards be rendered irrelevant just because a case involves an independent contractor rather than an employee — should the level or kind of conduct required in a negligence action vary depending on whether the injured person is an employee or a contractor?
Which of tort law’s purposes are served by adhering to the technicalities associated with these rules? What incentives do such rules create?
Effect. Remember when analyzing negligence per se to pay close attention to the applicability and effect of any statutory violation and always remember to check whether the plaintiff can succeed by reverting to common law negligence in the alternative. Depending on the jurisdiction (and possibly the activity at issue), the effect of using a statute in this way can vary. In some instances, a plaintiff may use the proven violation of a statute simply as admissible evidence for the jury to consider as it evaluates whether the defendant breached their duty of care. This is known as an “evidence of negligence” regime. In other cases, a proven statutory violation can be treated as conclusive of negligence. If the plaintiff can prove that the defendant violated a statute, that evidence will also suffice to satisfy the plaintiff’s burden on the element of breach, and the plaintiff will then need to be able to prove that that statutory violation caused the harm of which plaintiff complains. Can you see the difference in these two possible effects?
(221 A.3d 528)
Appellant Melanne Civic sued appellees Signature Collision Centers, LLC and H.P. West End, LLC, alleging that their negligence was responsible for injuries she suffered in a fall. A jury found that Signature and H.P. West End had been negligent, but that Ms. Civic’s contributory negligence barred her from recovering. Ms. Civic argues on appeal primarily that the trial court erroneously declined to instruct the jury on the issue of per se negligence. We affirm.
I.
Except as indicated, the following facts appear to be undisputed. In February 2013, Ms. Civic fell on a “handicap ramp” while walking out of an automobile-repair shop operated by Signature and owned by H.P. West End. Ms. Civic testified that she fell because of an unmarked vertical and horizontal gap between a landing and the ramp. Ms. Civic introduced expert testimony that the vertical component of the gap was two to three inches and that the gap was inconsistent with the requirements of the District of Columbia Building Code. According to Ms. Civic’s expert, the gap was unsafe and contrary to applicable standards of care. The defense elicited testimony that Ms. Civic had previously gone in and out of the repair shop, that she did not recall whether she was using the handrail when she fell, and that she was carrying a boot and a cell phone when she fell.
Ms. Civic asked the trial court to instruct the jury that if the jury found that Signature and H.P. West End violated D.C. Building Code § 1003.6, then the jury was required to find that Signature and H.P. West End were negligent. At the time of the incident at issue, § 1003.6 required among other things that a path of egress consist of a “continuous unobstructed path of vertical and horizontal egress travel.”
The trial court declined to give the requested instruction. The trial court did, however, give an instruction that if the jury found that Signature and H.P. West End violated § 1003.6, the jury could consider that violation as evidence of negligence. Relatedly, the trial court instructed the jury, over Ms. Civic’s objection, that if the jury found that Ms. Civic’s negligence was a proximate cause of her injuries, the jury could not find Signature and H.P. West End liable.
II.
Ms. Civic’s principal challenge is to the jury instructions. Whether the jury *530 instructions were accurate is a question of law that we decide de novo. [c] We find no error.
“In the District of Columbia, a plaintiff in a negligence action generally cannot recover when [the plaintiff] is found contributorily negligent.” [c] That bar on recovery does not apply, however, if the plaintiff can show that the defendant’s conduct violated a statute or regulation intended to give “classes of persons likely to be careless … greater protection than that which might be afforded at common law.” [c] We have often referred to the latter principle as the doctrine of “negligence per se.” [c] A plaintiff may rely on that doctrine only if the plaintiff “is a member of the class to be protected by the statute.” [c]
To the extent that § 1003.6 is viewed as merely part of the general Building Code, we do not see any basis upon which to conclude that § 1003.6 was intended to provide a class of unusually vulnerable persons with heightened protections. [***] The trial court thus correctly declined to instruct the jury on per se negligence in the circumstances of this case.
We do wish to clarify two points. First, there is some indication that § 1003.6 may relate to fire-code provisions or might be understood as directed at providing protections for persons with disabilities. The current case does not involve a plaintiff with a disability or who was fleeing from or responding to a fire or other emergency, and we express no view about the applicability of the doctrine of per se negligence in such cases. Second, the broad language in [earlier] cases [c] should not be understood to categorically foreclose the possibility that a provision in a building or housing code could provide a predicate for an instruction as to per se negligence. To the contrary, this court has held that, in at least some circumstances, provisions of the Housing Code would provide a predicate for application of the principle of per se negligence. SeeScoggins v. Jude, 419 A.2d 999, 1005-06 (D.C. 1980) (policy underlying Housing Code generally precludes landlord from relying on contributory negligence based on theory that tenants or guests should not have remained in premises or should have repaired premises themselves).
Ms. Civic’s arguments do not persuade us that the trial court in this case was required to give an instruction on per se negligence. First, Ms. Civic relies on the following language from our decision in *531Ceco Corp. v. Coleman, 441 A.2d 940, 946 (D.C. 1982) (internal quotation marks omitted):
The general rule in this jurisdiction is that “where a particular statutory or regulatory standard is enacted to protect persons in the plaintiff’s position or to prevent the type of accident that occurred, and the plaintiff can establish [the plaintiff’s] relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law.”
Considered in isolation, that language would seem to make the doctrine of per se negligence applicable to all statutes or regulations that have a public-safety purpose. As we have already explained, however, supra at 530, the analysis in and holdings of our prior and subsequent cases make clear that the doctrine is not so sweeping, at least in the context of contributory negligence. Rather, we have found statutes or regulations to be a basis for lifting the contributory-negligence bar when those statutes or regulations were directed at “protect[ing] persons from their own negligence.” [c]
Second, Ms. Civic relies heavily on our decision in Scoggins, 419 A.2d 999. Specifically, Ms. Civic reads that decision as standing for the proposition that violations of the Housing Code are generally per se negligent, thus lifting the contributory-negligence bar, unless the plaintiff engaged in “unreasonable conduct which may have added to a dangerous condition.” Id. at 1006. [***]
[W]e do not share Ms. Civic’s interpretation of Scoggins. Scoggins held that, in general, “the Housing Regulations impose only a duty of reasonable care upon owners of rental property.” 419 A.2d at 1005. We thus further held that contributory negligence is generally a defense to a claim of negligence resting on a violation of the Housing Regulations. Id. (“[I]f there is sufficient evidence tending to show a tenant (or a tenant’s guest), by act or omission, unreasonably increased the exposure he or she otherwise would have had to danger created by a landlord’s failure to comply with the Housing Regulations, the jury should be allowed to consider whether there was contributory negligence. No public policy would be frustrated.”) (citation omitted).
We identified an exception to the latter principle, however: landlords generally are not permitted to base a claim of contributory negligence on the conduct of a tenant or guest in simply using the premises or failing to themselves repair the premises, because such defense would “undermine the public policy implicit in the Housing Regulations.” Id. at 1004-05. Applying these principles, we held that the trial court properly declined to instruct the jury on the theory that the tenant and guest in the case were contributorily negligent by simply remaining in and moving about the apartment even though there was a crack in the apartment’s ceiling. Id. at 1005-06. Finally, we held that the jury ought to have been allowed to consider whether the tenant was contributorily negligent by hanging plants in the ceiling (or failing to remove the plants), which may have caused the apartment’s ceiling to collapse. Id. at 1006. On the last point, we explained that
In contrast with the policy permitting a tenant to remain in a substandard living room and to take reasonable steps to protect his or her property–for which there is no reasonable alternative–there is no public policy that would suggest *532 barring the landlord from alleging a tenant’s contributory negligence through unreasonable conduct which may have added to a dangerous condition. Id.
In sum, Scoggins is entirely consistent with our conclusion in this case that violations of the Building Code generally do not amount to per se negligence barring the defense of contributory negligence. [***]
Finally, Ms. Civic relies on a second provision – American National Standards Institute (ANSI) A117.1 –that apparently sets additional requirements for safe walkways. According to Ms. Civic, that provision was adopted as part of the District’s Building Code, and the trial court erroneously barred Ms. Civic’s expert from testifying to the jury about the provision. To the extent that Ms. Civic’s argument is directed at the idea that the jury was erroneously deprived of information that would have been relevant to whether Signature and H.P. West End were negligent, any error was harmless, because the jury in any event found that Signature and H.P. West End were negligent. See, e.g., Knight v. Georgetown Univ., 725 A.2d 472, 479 n.7 (D.C. 1999) (error harmless where court could say with fair assurance that error did not substantially sway jury’s verdict). It is not clear whether Ms. Civic is also relying on ANSI A117.1 as a basis upon which the trial court ought to have instructed the jury about per se negligence. If so, ANSI A117.1 would not have provided such a basis in the circumstances of this case, for the reasons stated above with respect to § 1003.6 of the Building Code.
For the foregoing reasons, the judgment of the Superior Court is affirmed.
Note 1. What is the difference between what Civic sought in a jury instruction and what the trial court instructed? Why does it matter?
Note 2. Statutes and regulations are increasingly incorporating by reference the standards produced by standard-setting organizations, such as the American National Standards Institute (“ANSI”) mentioned in Civic. Some industry standards are considered as custom evidence even if not incorporated by reference (as seen in Trimarco v. Klein). These standards raise difficult questions for courts. For instance, should standards not incorporated be given the same weight as mere custom or more, given the rigor of the standard-setting process? Should standards incorporated by reference be treated like statutes, even though the details are not worked through via a legislative or regulatory process? Courts have treated some privately generated standards with skepticism. See Bernard Bell, Engineering Rules: Chronicling the Development of A Third Way, Yale Notice &Comment (Oct. 2, 2019), at footnote 12 and accompanying text, reviewing Joanne Yates and Craig N. Murphy, Engineering Rules: Global Standard Setting Since 1880 (John Hopkins University Press 2019) (quoting Rossell v. Volkswagen, 147 Ariz. 160, 166, 709 P.2d 517, 524 (1985), cert. denied, Volkswagen of America v. Rossell, 476 U.S. 1108 (1986))
Recent scholarship provides an intriguing account of the rise of standardization and its importance in an increasingly global market, especially given the safety, interoperability and performance issues that have driven its rise.
[T]the standardization movement was largely initiated by engineers who considered performing public service an avenue for enhancing engineering’s status as a profession. Indeed, one of the first major debates among standard-setters involved allowing business entities to formally participate in their standard–setting processes. Pragmatism was central to the decision; without business participation any standards produced were much less likely to attain widespread adoption. At various points over the course of time devotees of standardization saw their efforts as a means of enhancing the competitiveness of their countries’ industry vis-à-vis those of other countries, improving the conditions of laborers, enhancing economic growth, contributing to their nation’s war efforts when conflicts raged and encouraging peace and avoidance of war when such conflicts ended, enhancing the internationalist post-World-War-II vision, and facilitating the development of the Internet as a radical change in the way people interacted. Bell, Engineering Rules, supra at footnote 6 and accompanying text.
Given growing concerns over labor and supply chains as well as the environmental costs of manufacturing, the legal, regulatory and ethical questions involved in standardization will likely only continue to become more pressing. Despite the concerns that self-regulation can raise—the fox guarding the henhouse, and so on—there is value in private standard-setting organizations. For one thing, they are capable of being “far more nimble in adapting to technological change” and thus “regularly revise their standards in light of technological advances.” Id. at footnote 15 and accompanying text.
Note 3. In your study of defenses to negligence claims in Module 4, you will learn about defenses based on the plaintiff’s conduct. A handful of jurisdictions, including D.C., follow “contributory negligence,” which bars plaintiffs from recovery when they are at fault. (Module 1’s Fox v. Glastenbury also introduced the concept of contributory negligence.) Various doctrines limit what might otherwise be a fairly harsh rule for plaintiffs, including negligence per se in some instances. Contributory negligence imposes deliberate constraints on plaintiffs while negligence per se attempts to protect and facilitate recovery for plaintiffs under particular circumstances, which is why it can sometimes be used to mitigate the otherwise harsh result of contributory negligence. In attempting to balance these competing policy aims, does the court get it right in Civic, in your view?
Note 4.Civic distinguishes between statutes like the general building code (which protect the general public) and statutes aimed at providing “a class of unusually vulnerable persons with heightened protections.” When statutes exist to protect the vulnerable, such as small children or workers whose safety depends on others, their violation in many jurisdictions will be treated as dispositive (or “per se negligence”). For instance, in Koenig v. Patrick Construction Corp., the plaintiff was a window cleaner hired by the defendant as an independent contractor. The defendant’s employees had instructed the plaintiff to use a 20-foot wooden ladder to reach the upper windows. The ladder lacked “safety shoes” to prevent slipping when the ladder was in use. It also lacked the necessary notches to which such safety shoes attached. These omissions were both violations of the local labor law. The ladder slipped, causing the plaintiff to fall and sustain serious injuries. A jury found for the defendant after being instructed that they must determine whether the plaintiff had properly used the ladder and evaluate the plaintiff’s fault, if any. On appeal, the Court of Appeal reversed:
[A] plaintiff’s carelessness is no bar to his recovery under a statute which imposes liability ‘regardless of negligence’. [c] Obviously, not every statute which commands or prohibits particular conduct is within this principle. Only when the statute is designed to protect a definite class of persons from a hazard of definable orbit, which they themselves are incapable of avoiding, is it deemed to create a statutory cause of action and to impose a liability unrelated to questions of negligence. This rule is based upon the view that, not being dependent upon proof of specific acts of negligence on defendant’s part, the cause of action may not be defeated by proof of plaintiff’s want of care. Thus, it has been said, ‘If the defendant’s negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute’. Restatement, Torts, s 483.
Since the plaintiff’s cause of action does not rest on negligence, contributory negligence does not constitute a defense. Indeed, the very purpose of the statute was to protect plaintiff’s intestate and others in like position from the consequences of their own negligence. It would be strange, therefore, if the same negligence could defeat the operation of the statute. [c]
The safe-ladder provision of section 240 comes squarely within this doctrine. By its force, certain safeguards have been legislatively commanded for the safety of those engaging in the work described. Instead of simply defining the general standard of care required and then providing that violation of that standard evidences negligence, the legislature imposed upon employers or those directing the particular work to be done, a flat and unvarying duty.
This the language of the section makes crystal clear: the employer or one directing the work ‘shall furnish’ or cause to be furnished equipment or devices ‘which shall be so constructed, placed and operated as to give proper protection’ to the one doing the work. [***] For breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable without regard to his care or lack of it.
And, what the statute declares, its reason confirms. Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms *319 large. The legislature recognized this and to guard against the known hazards of the occupation required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified. That possibility we long ago perceived and provided for, declaring that ‘this statute is one for the protection of workmen from injury, and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed’. [c] Such an interpretation manifestly rules out contributory negligence as a defense to an action predicated upon violation of the statute to the injury of one in the protected class. [cc]
A different case would be before us if the injured person were a passerby or a workman struck by a falling ladder; as to them persons outside the class for whose special benefit the statute was designed a violation might do no more than evidence negligence. That, however, is not this case. Here, to recapitulate, we have an action based upon a statute whose cardinal purpose was to protect plaintiff and others in his calling, without reference to questions of negligence, from the occurrence of just such an accident as befell him. In spite of this, the trial court left the jury free to bring in a verdict against plaintiff if it found him guilty of contributory negligence. Such instructions were in open conflict with the purpose and aim of the statute, and, since they may have improperly influenced the result, there must be a new trial.
Koenig v. Patrick Const. Corp., 298 N.Y. 313, 315–16, 317, 318-319 (1948)
Washington’s Negligence Per Se Statutory Provisions
Read the statutory language below and see if you can parse the evidentiary differences and categorical distinctions the legislature has created.
RCWA 5.40.050 5.40.050. Breach of duty—Evidence of negligence—per se
(Effective: July 1, 2010)
A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to:
(1) Electrical fire safety,
(2) the use of smoke alarms,
(3) sterilization of needles and instruments used by persons engaged in the practice of body art, body piercing, tattooing, or electrology, or other precaution against the spread of disease, as required under RCW 70.54.350, or
(4) driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se.
Note 1. Negligence Per Se: Different Evidentiary Impact. The Washington state legislature has distinguished among the types of negligence per se available based on certain activities or items, all related to safety or public health. What is the general effect of negligence per se in Washington state? What is the effect of negligence per se with respect to the areas specially enumerated above?
(193 Wash. App. 147)
*150 Anna Chester suffered an adverse reaction after being tattooed with ink that appears to have been contaminated with bacteria when the tattoo artist received it from the distributor. Chester brought negligence claims against the tattoo artist and the tattoo parlor, arguing that they had a duty to use sterile ink. The trial court dismissed her claims on summary judgment and Chester appeals. We affirm, because neither the regulations governing the tattoo industry nor the common law imposes a duty to use sterile ink.
Bonnie Gillson, a tattoo artist, applied a tattoo to Anna Chester at Deep Roots Alderwood, LLC, a shop specializing in tattoos and body piercing. For the black portion of the tattoo, Gillson used One brand tattoo ink. One was a popular ink that Gillson had used for about a year and a half without problem. She ordered the ink from Kingpin Tattoo Supply, a distributor from whom she ordered many tattoo supplies.
A few weeks after applying Chester’s tattoo, Gillson learned that several of her clients were experiencing adverse reactions to the black ink portions of their tattoos. An investigation by King County Public Health traced the reactions to a particular bottle of One brand black tattoo ink. The investigation indicated that the ink had likely been contaminated during manufacture. Gillson contacted every client she tattooed during the period of time she used the contaminated bottle of ink. Most clients suffered only a minor skin irritation that did not require medical treatment.
Chester, however, suffered a serious reaction to the contaminated ink. She consulted a doctor who diagnosed a bacterial infection at the tattoo site and prescribed a course of antibiotics. The infection did not respond to the prescribed treatment. Chester’s kidney function declined rapidly. In the opinion of Chester’s doctor, the bacterial infection aggravated an underlying chronic kidney disease. Chester was eventually referred to an infectious disease *151 specialist, Dr. Warren L. Dinges. Dinges successfully treated the infection. But before the infection was brought under control Chester’s kidneys had failed, requiring her to begin dialysis.
Chester brought product liability and negligence claims against Gillson and Deep Roots.[2] [***] Gillson and Deep Roots moved for summary judgment. Chester conceded dismissal of her product liability claims, but opposed the motion as to her negligence claims. The trial court found as a matter of law that Chester’s evidence failed to establish the essential elements of negligence and granted summary judgment for Gillson and Deep Roots. Chester appeals.
[***] *152 Chester first argues that the respondents were negligent per se because they violated a statutory duty of care. Chester relies on RCW 5.40.050(3), under which the breach of tattooing regulations related to the use of sterile needles is negligence per se. She asserts that WAC 246.145.050(1), which requires that tattoo artists use “sterile instruments and aseptic techniques at all times during a procedure,” imposes a duty to use sterile ink. […]
The legislature authorized the secretary of the Department of Health to regulate the tattoo industry and instructed the secretary to adopt rules “in accordance with nationally recognized professional standards.” RCW 70.54.340. The legislature further directed the secretary to “consider the standard precautions for infection control, as recommended by the United States centers for disease control.” RCW 70.54.340. In compliance with these directives, the secretary of health adopted chapter 246–145 WAC to regulate electrology, body art, body piercing, and tattooing.
WAC 246–145–050 details 24 “universal precautions” applicable to tattoo artists and body piercers. Three subsections include sterilization requirements. Artists must use *153 “sterile instruments and aseptic techniques at all times during a procedure.” WAC 246–145–050 (1). They must use only presterilized single-use disposable tattoo needles. WAC 246–145–050 (2). … The regulation includes two provisions concerning tattoo ink. Tattoo artists must use single-use ink containers for each client to prevent contaminating the unused portion of ink. WAC 246–145–050(15). Artists may not use inks that are banned or restricted by the FDA. WAC 246–145–050(18).[3] The next regulation, WAC 246–145–060, details the requirements for “[s]terile procedures in body art, body piercing and tattooing.” The regulation … requires artists to reuse only instruments intended for multiple use that have been cleaned and sterilized between clients. WAC 246–145–060(1)(c). The regulation gives specific requirements for sterilizing and storing reusable instruments. WAC 246–145–060(1)(c)–(g). The regulation includes no requirements for ink.
There is no regulation that, by its plain language, creates a duty to use sterile ink. The regulatory scheme as a whole indicates that the secretary carefully considered sterilization as it applies to the tattoo industry. The regulations require that some items be obtained presterilized and that others be sterilized on site, according to detailed procedures. The secretary also considered tattoo ink and issued rules concerning what ink may be used and how ink must be dispensed.
*154 Considering the detail of the regulatory scheme, the specific requirements concerning sterilization, and the attention given to tattoo ink, it is not reasonable to conclude that the secretary intended to require the use of sterile ink but couched that duty within the requirement to use sterile instruments and aseptic techniques. We conclude that the plain language of the regulation is not ambiguous and the legislative intent is clear. There is not a regulatory requirement to use sterile ink.
Chester next argues that the definition section of RCW 70.54.330 is an independent basis for finding the respondents negligent per se. RCW 70.54.330(4) defines “tattooing” as an indelible mark “introduced by insertion of nontoxic dyes or pigments into or under the subcutaneous portion of the skin.” Chester contends that this section creates a duty to use only nontoxic ink and that the respondents breached this duty by using contaminated ink. The respondents argue that the section does not apply to the negligence per se statute, RCW 5.40.050(3). We agree with the respondents.
RCW 5.40.050 establishes negligence per se for the breach of a duty created by statute or rule relating to “(3) sterilization of needles and instruments used by persons engaged in the practice of body art, body piercing, tattooing, or electrology, or other precaution against the spread of disease, as required under RCW 70.54.350.” The referenced statute, RCW 70.54.350 states, “Any person who practices electrology or tattooing shall comply with the rules adopted by the department of health under RCW 70.54.340.” The negligence per se statute thus applies to the breach of any tattooing regulation having to do with precautions against the spread of disease. The definition of tattooing in RCW 70.54.330(4) is not such a regulation.
This reading is in harmony with other statutory and regulatory provisions defining tattooing. RCW 18.300.010, which became effective at the same time as the tattoo regulations, explicitly states that its definitions apply to *155 RCW 5.40.050, the negligence per se statute. The statute defines “tattooing” as “to pierce or puncture the human skin with a needle or other instrument for the purpose of implanting an indelible mark.” RCW 18.300.010(8). The regulations also use this definition. WAC 246–145–010(25). Neither the statutory nor the regulatory definition encompassed by the negligence per se statute includes the word “nontoxic.”
[***] We conclude that Chester has not shown the existence of a statutory duty to use sterile ink and we reject her claim of negligence per se.
Chester argues in the alternative that she established the elements of common law negligence. Chester asserts that even if the respondents owed only a duty of reasonable care, they breached that duty by not using sterile ink or confirming that the ink was not contaminated. Chester does not assert that sterile ink is the industry standard. But she argues that even if sterile ink is not routinely used, the risks associated with using contaminated ink far outweigh the burden of using sterile ink. She argues that the respondents thus breached a duty of reasonable care by failing to ensure the ink they used was sterile.
Chester relies on Helling v. Carey, 83 Wash.2d 514 (1974), in which the Supreme Court *156 quoted Judge Learned Hand and followed his cost-benefit analysis.[4]Id. at 519. In Helling, a 32–year–old patient became partially blind due to undetected glaucoma. Id. at 516. The defendant ophthalmologists presented evidence that glaucoma is uncommon in young patients and the industry standard was to administer routine glaucoma tests after the age of 40. Id. But the court held that, given the severity of glaucoma and the availability of a simple and harmless test to detect the disease, the doctors breached a duty by failing to administer the test. Id. at 519.
Chester’s argument falls short because she glosses over the burden of using sterile ink. In Helling, it was undisputed that the ophthalmologists could easily administer a simple glaucoma test. Helling, 83 Wash.2d at 519. Chester asserts that using sterile ink is similarly easy as “Gillson can simply order sterile rather than non-sterile ink….” She further argues that the respondents had not only a duty to purchase ink advertised as sterile, but also a duty to ensure that ink was in fact sterile. However, Chester has not shown that sterile ink was widely available at the time in question, that claims of sterility were reliable, or that tattoo artists had the means to test ink for contamination and sterilize it on site.
Chester presented evidence that Intenze brand tattoo ink was advertised as sterile about the time that Gillson purchased the One brand ink. She also produced the article Microbial status and Product Labelling of 58 original tattoo inks (2011) as evidence of the association between tattoo ink and bacterial infection. The article reports on a study of 58 inks for sale in the European market. Concerning those inks claiming to be sterile, the authors found that none of the claims could be verified and some were demonstrably false. The authors found that Intenze black ink, advertised as sterile, contained a high level of bacterial contamination.
The record includes a further example of an unreliable claim of sterility. At some point prior to March 2012, *157 the One brand website claimed that its ink was sterile. An inspection determined that, although the manufacturer was having the ink treated with gamma radiation, the dosage of radiation was not sufficient to support the claim of sterility.
Chester has not shown that sterile ink was readily available or that claims of sterility were reliable. She offered no evidence that tattoo artists have the means to test ink for contamination or sterilize ink received from distributors. We conclude that Helling is distinguishable. Chester has not established that the respondents’ duty of reasonable care required them to use sterile ink.
[***] Affirmed.
Note 1. Common-Law Negligence as Fall-Back If Negligence Per Se Fails. A common mistake is to conclude that the plaintiff’s case will fail if the doctrine cannot be applied. Recall that this doctrine operates to ease the burden on the plaintiff and to substitute for–or supplement–the jury’s factfinding with guidance from the legislature in areas in which existing laws prescribe the conduct that is reasonable and lawful. Merely because a defendant has not been proven to violate a statute, or has violated a statute whose violation fails the four-part applicability analysis does not foreclose the plaintiff’s ability to attempt to prove common-law negligence by the defendant. In such cases, the plaintiff will attempt to prove up the defendant’s breach as they ordinarily would (through relevant witness and expert testimony, custom evidence where relevant and available, and any other evidence that shows that the defendant was careless in ways that caused the plaintiff’s injuries).
Note 2. What is the significance of the court’s treatment of Helling? Why didn’t Chester use custom evidence to prove her case? Does this outcome seem normatively correct or not? Why?
Note 3.Negligence Per Se in Tension with the Reasonable Person Standard. In some respects, the use of negligence per se to determine negligence seizes the question from the jury. (Where the doctrine is used merely to provide evidence of negligence, this is less the case; it merely operates to assist the jury, rather than to usurp its decisional authority.) Courts and commentators have sometimes wondered whether the doctrine should yield to common law standards and grant greater deference to the factfinder in light of tort law’s preference for fact-sensitive adjudication in most domains. One area in which courts have acted to limit the scope of negligence per se is in its impact on the reasonable person standard with respect to children, as the next case illustrates.
(104 Wash.2d 241) En Banc
This appeal requires us to decide whether the negligence per se doctrine should be applicable to minors, or whether minors should instead be judged only by the special child’s standard of care in a civil negligence action. We hold that a minor’s violation of a statute does not constitute proof of negligence per se, but may, in proper cases, be introduced as evidence of a minor’s negligence. Accordingly, we reverse the decision of the Court of Appeals. Bauman v. Crawford, 38 Wash. App. 301 (1984).
On April 24, 1979, at approximately 9:30 p.m., the bicycle ridden by petitioner Donald Bauman collided with the automobile driven by respondent. Petitioner was 14 years 4 months old at that time. The collision occurred after dark on a public street in Seattle. Petitioner was riding his bicycle down a steep hill; as he reached the base of the hill, respondent turned left in front of petitioner and the collision resulted. Petitioner’s bicycle was equipped with reflectors, but had no headlight. Seattle Municipal Code *243 11.44.160 and RCW 46.61.780(1) each require a headlight on a bicycle operated after dark. In the collision, petitioner suffered a broken lower leg (tibia and fibula) which required three surgeries during the 6 weeks immediately following the accident. Overall, petitioner was hospitalized 10 days, had a cast for about 2 months, and required crutches to ambulate for several weeks after cast removal.
Petitioner, through his guardian ad litem, sued respondent for damages. Respondent’s answer alleged contributory negligence by petitioner as an affirmative defense.
The trial court instructed the jury that violation of an ordinance is negligence per se. The court also instructed the jury that the standard of ordinary care for a child is the care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under similar circumstances. The jury rendered a verdict of \$8,000 for petitioner, reduced by 95 percent for petitioner’s contributory negligence. Thus, the final verdict was \$400 for petitioner.
Petitioner contends it was reversible error for the court to instruct on negligence per se because he is a minor. He further contends that it was reversible error for the court to give the negligence per se instruction in combination with the special child’s standard of care instruction because these instructions are contradictory to one another. Petitioner argued to the Court of Appeals, and now urges before this court, that negligence per se is inapplicable to minors under all circumstances. He urges that the special child’s standard of care is the proper standard to be applied to a minor, notwithstanding violation of a statute or ordinance.
The Court of Appeals, relying on Everest v. Riecken, 30 Wash.2d 683 (1948), declined to hold that the negligence per se doctrine is inapplicable to minors. In Everest, this court held that a 15-year-old bicyclist was negligent per se for riding his bicycle after dark without a light, in violation of law. There, this court declined to hold *244 that the child’s minority excused him from the operation of the negligence per se doctrine, but did so with no discussion of the policies underlying the negligence per se doctrine or the child’s standard of care. After careful reconsideration of those policies, we have determined that the policies underlying the doctrine of negligence per se clash with the policies underlying the special child’s standard of care. We therefore overturn the Everest case to the extent that it is incompatible with our holding today.
In Washington, a child under 6 years old cannot be held to be contributorially [sic] negligent. Graving v. Dorn, 63 Wash.2d 236 (1963). Conversely, a 17 or 18-year-old of normal capacity may be treated as an adult in all cases. Dingwall v. McKerricher, 75 Wash.2d 352 (1969). Accordingly, the decision in this case applies only to minors 6 to 16 years of age. Generally, contributory negligence of minors in this age group is a question for the trier of fact. Graving v. Dorn, supra.
Washington has long recognized the special standard of care applicable to children: a child’s conduct is measured by the conduct of a reasonably careful child of the same age, intelligence, maturity, training and experience. Robinson v. Lindsay, 92 Wash.2d 410, 412 (1979); Roth v. Union Depot Co., 13 Wash. 525 (1896). The rationale for the special child’s standard of care is that a child is lacking in the judgment, discretion, and experience of an adult; thus, the child’s standard of care allows for the normal incapacities and indiscretions of youth. [cc] Most significantly, the child’s standard was created because public policy dictates that it would be unfair to predicate legal fault upon a standard most children are incapable of meeting. Thus, the fact of minority is not what lowers the standard; rather, the child’s immaturity of judgment and lack of capacity to appreciate dangers justifies a special child’s standard. *245 [***]
A primary rationale for the negligence per se doctrine is that the Legislature has determined the standard of conduct expected of an ordinary, reasonable person; if one violates a statute, he is no longer a reasonably prudent person. [cc] Negligence per se exists when a statute or ordinance is violated, and that law is designed to (a) protect a class of persons which includes the person whose interest is invaded, (b) protect the particular interest which is invaded, (c) protect against the kind of harm which resulted, and (d) protect that interest against the particular hazard from which the harm results. [c]
A majority of courts in states which apply the negligence per se doctrine to adults have recognized a fundamental conflict between that doctrine and the special child’s standard of care. See Finch v. Christensen, 84 S.D. 420 (1969) (negligence per se inapplicable to 11-year-old bicyclist riding at night without a light [cc]. Scholarly commentary also overwhelmingly supports the view that negligence per se is inapplicable to children. See 37 Tex. L. Rev. 255 (1958); 26 S. Cal. L. Rev. 335 (1953); Annot., Child’sViolation of Statute or Ordinance as Affecting Question of His Negligence or Contributory Negligence, 174 A.L.R. 1170 (1948); Mertz, The Infant and Negligence Per Se in Pennsylvania, 51 Dick. L. Rev. 79 (1946); 3 Vand. L. Rev. 145 (1949).
The majority rule is based upon the policy considerations underlying each doctrine. These courts and commentators recognize that application of negligence per se to children abrogates the special standard of care for children; such *246 abrogation violates the public policy inherent in the special child’s standard. These courts and commentators also recognize that refusal to consider a child’s minority in effect substitutes a standard of strict liability for the criterion of the reasonable child.
Conversely, the minority of courts willing to impose negligence per se on children do so, for the most part, without discussion of the policy considerations underlying the two doctrines at issue here. Often, a mechanistic statutory construction is applied to foreclose any consideration of the child’s maturity level, experience, age, or intelligence. These courts reason that if the legislature did not specifically exclude children from the requirements of the statute, then all persons, including children, are required to behave in accordance with that statute. See Sagor v. Joseph Burnett Co., 122 Conn. 447 (1937) (no exception to negligence per se doctrine for children; the terms of the statute are clear and precise); D’Ambrosio v. Philadelphia, 354 Pa. 403 (1946) (the law applies equally to adults and children unless it specifically excludes children).
Similarly, the Court of Appeals in the present case was persuaded that the Washington Legislature intended that children be held negligent per se for violation of the statute involved in this case. In 1965 the Legislature repealed RCW 46.47.090 which specifically stated that no child under 16 shall be held to be negligent per se for any violation of the statute. [***] The Court of Appeals interprets this deletion from the statute as proof that the Legislature intends that negligence per se be applied whenever the statute is violated by a child. [***] The legislative history of the repealed provision is *247 unavailable, so it is impossible to ascertain the actual legislative intent. It is significant, however, that the entire motor vehicle code was being revised at the time this provision was repealed. Thus, the Legislature did not single out this statute for special treatment, but merely changed it as part of an overall revamping of the code. Furthermore, negligence per se and the child’s standard of care are both court-created doctrines. Accordingly, we presume the Legislature, by its change, intended to return to the courts the decision whether to apply negligence per se to minors under 16 years of age.
A significant number of the courts which decline to apply negligence per se to minors have determined that violation of a statute by a minor may be introduced as evidence of negligence, as long as the jury is clearly instructed that the minor’s behavior is ultimately to be judged by the special child’s standard of care. [cc]
We agree with these courts that allowing a statutory violation to be introduced simply as one factor to be considered by the trier of fact is an equitable resolution of the dilemma created by a minor’s violation of law. We therefore remand for a new trial on the issue of liability under proper instructions. At that trial the jury must be instructed as to the special child’s standard of care. The jury may then be instructed that violation of a relevant statute[5] may be considered *248 as evidence of negligence only if the jury finds that a reasonable child of the same age, intelligence, maturity and experience as petitioner would not have acted in violation of the statute under the same circumstances.
[***] [W]e hold that our ruling today, which exempts minors from the operation of the negligence per se doctrine, shall apply prospectively. However, the rule shall also apply to any case already tried where the issue of the doctrine’s application to a minor was preserved for appeal.
BRACHTENBACH, Justice (concurring).
I concur in the rationale and result of the majority but I am convinced that in the appropriate case this court should reexamine the entire theory of negligence per se arising from the alleged violation of a statute, an ordinance or an administrative regulation. This court has long been committed to the rule that violation of a positive statute constitutes negligence per se. In Engelker v. Seattle Elec. Co., 50 Wash. 196 (1908), the court noted that some jurisdictions follow the rule that a violation of a statute is mere evidence of negligence but it adopted the doctrine “that a thing which is done in violation of positive law is in itself negligence.” Engelker, at 199. This rule has been applied to violations of statutes, ordinances and regulations, Cook v. Seidenverg, 36 Wash.2d 256 (1950) [***] The Restatement (Second) of Torts § 286 (1965) adopted the test of the relevancy of the statute to the tortious action. Where the relevancy test is met and where there exists prima facie a discernible causal connection between the violation of the statute and the injury, the jury is properly advised that the violation amounts to negligence per se and proximate cause then *250 becomes the sole issue of fact to be resolved by the trier of fact. [***]
The rule, however, has not been applied with relentless indifference to actual fault. A violation of statute has been held not to constitute negligence per se where the violation is due to some cause beyond the violator’s control, and which reasonable prudence could not have guarded against [c]; where the violation is due to an emergency [c]; where the violation is merely technical; where the violation is perpetuated out of necessity [c]; or where the violator is not given notice that his actions were in violation of the law [c].
[***] This 77-year-old doctrine has been the subject of exceptions almost since its adoption. Perhaps it is time we stopped selectively placing the negligence question within “rational judicial control” and place it, in all cases, in the rational control of the trier of fact, where it belongs.
The finding of negligence is normally a task for the trier of fact. Through the application of the negligence per se doctrine we have taken that task away from the jury and the court now decides when a violation of statute constitutes negligence. It is evident from the numerous exceptions to the doctrine that the court is not merely applying a statute to the tortious action, but determining from the total factual circumstances whether or not the statute violator *251 was negligent at all. I, therefore, advocate true rational control of the negligence doctrine through the return of the negligence question to the trier of fact in cases involving evidence of a violation of statute.
Currently, the majority of American jurisdictions follow the negligence per se doctrine and find that a breach of statutory duty is a breach of standard of care for civil negligence cases. Seven states follow the theory that a breach of a statutory duty is evidence of negligence in civil action,[6] while five states hold that a violation of a statute is prima facie negligence which may be rebutted by competent evidence.[7] In addition, some of the courts which follow the majority rule as to statutes have held that the breach of ordinances, or traffic laws, or the regulations of administrative bodies is only evidence for the jury. Such cases seem to indicate a desire to leave some leeway for cases where a violation may not be necessarily unreasonable. [c]
The English rule is to consider a breach of a statutory duty a tort in itself. The Canadian Supreme Court recently reviewed both the English rule and the American rules and chose to follow the American minority rule which considers the violation to be mere evidence of negligence. The Queen v. Saskatchewan Wheat Pool, 143 D.L.R.3d 9 (1983); see also Note, Negligence and Breach of Statutory Duty, 4 Oxford J. Legal Stud. 429 (1984). As indicated by the Canadian decision, criticism of the *252 negligence per se doctrine is mounting in the courts. Authors of treatises and journal articles are also increasingly critical of the doctrine and write favorably of the evidence-of-negligence doctrine. Objection is made to the court’s inferring a legislative intent to create a standard of care in civil cases where the Legislature is silent. The main criticism is that it is difficult to discover the bases on which the courts either find or refuse to find these fictional intentions. Alexander, Legislation and the Standard of Care in Negligence, 42 Can. B. Rev. 243 (1964).
The most widely accepted rationale for the negligence per se rule is that the reasonable man always obeys the criminal law, thus, a breach of the criminal law must be unreasonable and, therefore, negligent. Thayer, Public Wrong and Private Action, 27 Harv. L. Rev. 317 (1913–14). The basic flaw in this rationale and in inferring legislative intent is the fact that the criminal proscriptions may be ill conceived, hastily drawn with inadequate investigation or obsolete and, yet, the validity of the statute will not be before the court in the negligence action. The Legislature has not considered the policy problems peculiar to civil liability nor has it composed the legislation in terms of a standard of due care in damage suits or for judging negligence. Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum. L. Rev. 21, 39–43 (1949). Reliance on the Legislature for a standard of reasonableness under these circumstances would not make for the wisest decision.
A second rationale for finding legislative intent to create a standard of care in civil cases is that the Legislature recognizes that the negligence per se rule is needed to promote and fulfill reliance by others on uniform obedience to statutes. However, where the Legislature does not explicitly impose automatic liability in a civil action as a sanction, the court is encroaching on legislative territory when it adds such a sanction for the purposes of law enforcement. Further, “[n]either in fact nor in law do others have the right under all circumstances to rely on the actor’s obedience to statute.” [c]
*253 Further criticism of the negligence per se doctrine arises because of the differences between the criminal and civil systems. Lawmakers may be contented with a broad unqualified requirement in a criminal statute because they knew that enforcement officials would use their discretion to make exceptions in cases where literal compliance made no sense or worked a hardship. In a civil action on the other hand, where large damages are often at stake, the injured party cannot be expected to jeopardize his claim by forgiving noncompliance in exceptional cases, as a public prosecutor would. [c]. Additionally, civil defendants do not have the ability to avail themselves of criminal procedural defenses and protections against an inflexible application of the criminal standard.
Criticism is also made because of the imposition of liability without fault. As noted above, the Washington courts have joined in this criticism and produced multiple exceptions in order to avoid this aspect of the doctrine. This exception-finding approach produces a weakened doctrine and ultimately places the jury’s task of determining negligence with the court under all circumstances. Such an approach also leads to distorted statutory construction which affects the criminal law as well.
The defect in our prior reasoning is that the negligence per se doctrine removes the determination of negligence from the fact-finding function of the jury, or the court sitting as a fact finder. While it is a convenient method to affix liability, it runs counter to the basic notion of determining tort liability. I would prospectively limit the doctrine to an evidence of negligence standard.
Note 1. In some instances, a statutory violation may be used to establish duty; in others, it may be used as evidence of breach (or as conclusive of breach). What is the practical difference?
Note 2. Rationales For Negligence Per Se. Bauman observes variations in 12 states and three countries relative to how they consider and apply negligence per se. Identify the rationales for the doctrine. Are you more persuaded by the rationales for negligence per se or by critiques of the doctrine?
Note 3. Authority Issues. The theme of Palsgraf’s fight over decisional authority on the question of negligence continues. Does it strike you as fair, efficient or otherwise good for tort law to use negligence per se to determine breach? How about merely to offer evidence of breach? Would you distinguish its use based on the kind of statute? The category of harm? The kind of actor alleged to have breached their duty or violated the statute?
Note 4. Excuse. Bauman identifies a number of instances in which the violation of a statute may be excused. What are they?
Excused Violations, Restatement (Third) of Torts § 15.
Restatement (3d) of Torts: Liability for Physical Harm (adopted 2005; published 2010)
An actor’s violation of a statute is excused and not negligence if:
(a) the violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;
(d) the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or
(e) the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.
Is the use of negligence per se, and the corresponding creation of rules of law that recognize excuses for violation, effectively converting breach into a categorical inquiry, like duty? What do you think of this in terms of your understanding of the proper role for the judge and jury? The next case is a classic opinion on these issues, brought to you again by Justice Cardozo.
(228 N.Y. 164)
The action is one to recover damages for injuries resulting in death.
Plaintiff and her husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck by the defendant’s automobile coming in the opposite direction. They were thrown to the ground, and the man was killed. At the point of the collision the highway makes a curve. The car was rounding the curve, when suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom. Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the center of the highway. Highway Law, § 286, subd. 3, and section 332 (Consol. Laws, c. 25). Negligence is charged against the plaintiff’s intestate, the driver of the wagon, in that he was traveling without lights. Highway Law, § 329a, as amended by Laws 1915, c. 367.
There is no evidence *167 that the defendant was moving at an excessive speed. There is none of any defect in the equipment of his car. The beam of light from his lamps pointed to the right as the wheels of his car turned along the curve toward the left; and, looking in the direction of the plaintiff’s approach, he was peering into the shadow. The case against him must stand, therefore, if at all, upon the divergence of his course from the center of the highway. The jury found him delinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial.
We agree with the Appellate Division that the charge to the jury was erroneous and misleading. [***] In the body of the charge the trial judge said that the jury could consider the absence of light ‘in determining whether the plaintiff’s intestate was guilty of contributory negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily makes him negligent, but it is a fact for your consideration.’
The defendant requested a ruling that the absence of a light on the plaintiff’s vehicle was ‘prima facie evidence of contributory negligence.’ This request was refused, and the jury were again instructed that they might consider the absence of lights as some evidence of negligence, but that it was not conclusive evidence.
The plaintiff then requested a charge that ‘the fact that the plaintiff’s intestate was driving without a light is not negligence in itself,’ and to this the court acceded. The defendant saved his rights by appropriate exceptions.
*168 We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself.
Lights are intended for the guidance and protection of other travelers on the highway. Highway Law, § 329a. By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this state. [***]
A rule less rigid has been applied where the one who complains of the omission is not a member of the class for whose protection the safeguard is designed. [***] In the case at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. They were allowed to ‘consider the default as lightly or gravely’ as they would (Thomas, J., in the court below). They might as well have been told that they could use a like discretion in holding a master at fault for the omission of a safety appliance prescribed by positive law for the protection of a workman. Jurors have no dispensing power, by which they may relax the duty that one traveler on the highway owes *170 under the statute to another. It is error to tell them that they have. The omission of these lights was a wrong, and, being wholly unexcused, was also a negligent wrong. No license should have been conceded to the triers of the facts to find it anything else.
We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault, unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages, unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. ‘Proof of negligence in the air, so to speak, will not do.’ Pollock Torts (10th Ed.) p. 472.
We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals. [c] If nothing else is shown to break the connection, we have a case, prima facie sufficient, of negligence contributing to the result.
There may, indeed, be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of the approaching car. Her position is that, if the defendant did not see the buggy thus illumined, a jury might reasonably infer that he would not have seen *171 it anyhow. We may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing such an inference; but the decision of the case does not make it necessary to resolve the doubt, and so we leave it open. It is certain that they were not required to find that lights on the wagon were superfluous. They might reasonably have found the contrary. They ought, therefore, to have been informed what effect they were free to give, in that event, to the violation of the statute. They should have been told, not only that the omission of the light was negligence, but that it was ‘prima facie evidence of contributory negligence’; i. e., that it was sufficient in itself unless its probative force was overcome (Thomas, J., in court below) to sustain a verdict that the decedent was at fault. [c]
Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road; but he did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless speed that warning would of necessity have been futile. Nothing of the kind is shown. The collision was due to his failure to see at a time when sight should have been aroused and guided by the statutory warnings. Some explanation of the effect to be given to the absence of those warnings, if the plaintiff failed to prove that other lights on the car or the highway took their place as equivalents, should have been put before the jury. The explanation was asked for and refused.
We are persuaded that the tendency of the charge, and of all the rulings, following it, was to minimize unduly, in the minds of the triers of the facts, the gravity of the decedent’s fault. Errors may not be ignored as unsubstantial, when they tend to such an outcome. A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced *172 to the level of cautions, and the duty to obey attenuated into an option to conform.
The order of the Appellate Division should be affirmed, and judgment absolute directed on the stipulation in favor of the defendant, with costs in all courts.
HOGAN, J. (dissenting).
Upon the trial of this action, a jury rendered a verdict in favor of the plaintiff. Defendant appealed from the judgment entered thereon, and an order made denying an application to set aside the verdict and for a new trial, to the Appellate Division. The latter court reversed the judgment on the law, and granted a new trial on questions of law only; the court having examined the facts and found no error therein. The decision thus made was equivalent to a determination by the court that it had passed upon the question of the sufficiency of the evidence, and as to whether the verdict rendered by the jury was against the weight of evidence. The effect of that decision was that the order denying the motion to set aside the verdict and grant a new trial was upon the facts properly denied. Judson v. Central Vt. R. Co., 158 N. Y. 597, 602. A jury and the Appellate Division having determined that, upon the facts developed on the trial of the action, the plaintiff was entitled to recover, in view of certain statements in the prevailing opinion, and for the purpose of explanation of my dissent, I shall refer to the facts which were of necessity found in favor of plaintiff, and approved by the Appellate Division. The following facts are undisputed:
Leading from Broadway, in the village of Tarrytown, Westchester county, is a certain public highway, known as Neperham road, \ which runs in an easterly direction to East View, town of Greenburg. The worked portion of the highway varies in width from 21 1/2 feet at the narrowest point, a short distance easterly of the place of the collision hereinafter mentioned, to a width of *173 27 1/2 feet at the point where the collision occurred.
On the evening of August 21, 1915, the plaintiff, together with her husband, now deceased, were seated in an open wagon drawn by a horse. They were traveling on the highway westerly towards Tarrytown. The defendant was traveling alone on the highway in the opposite direction, viz. from Tarrytown easterly towards East View, in an automobile which weighed about 3,000 pounds, having a capacity of 70 horse power, capable of developing a speed of 75 miles an hour. Defendant was driving the car.
A collision occurred between the two vehicles on the highway, at or near a hydrant located on the northerly side of the road. Plaintiff and her husband were thrown from the wagon in which they were seated. Plaintiff was bruised and her shoulder dislocated. Her husband was seriously injured and died as a result of the accident. The plaintiff, as administratrix, brought this action to recover damages arising by reason of the death of her husband, caused, as she alleged, solely by the negligence of defendant in operating, driving, and running the automobile at a high, unlawful, excessive, and unsafe rate of speed, in failing to blow a horn or give any warning or signal of the approach of said automobile, and in operating, driving, and riding said automobile at said time and place upon his left-hand or wrongful side of said road or highway, thereby causing the death of her husband.
Defendant by his answer admitted that he was operating the automobile, put in issue the remaining allegations of the complaint, and affirmatively alleged that any injury to plaintiff’s intestate was caused by his contributory negligence. As indicated in the prevailing opinion, the manner in which the accident happened and the point in the highway where the collision occurred are important facts in this case, for as therein stated:
‘The case against him [defendant] *174 must stand, therefore, if at all, upon the divergence of his course from the center of the highway.’
The evidence on behalf of plaintiff tended to establish that on the evening in question her husband was driving the horse at a jogging gait along on the right side of the highway near the grass, which was outside of the worked part of the road on the northerly side thereof; that plaintiff observed about 120 feet down the road the automobile operated by defendant approaching at a high rate of speed, two searchlights upon the same, and that the car seemed to be upon her side of the road; that the automobile ran into the wagon in which plaintiff and her husband were seated at a point on their side of the road, while they were riding along near the grass. Evidence was also presented tending to show that the rate of speed of the automobile was 18 to 20 miles an hour and the lights upon the car illuminated the entire road. The defendant was the sole witness on the part of the defense upon the subject under consideration. His version was:
‘Just before I passed the Tarrytown Heights station, I noticed a number of children playing in the road. I slowed my car down a little more than I had been running. I continued to drive along the road; probably I proceeded along the road 300 or 400 feet further, I do not know exactly how far, when suddenly there was a crash, and I stopped my car as soon as I could after I realized that there had been a collision. Whether I saw anything in that imperceptible fraction of space before the wagon and car came together I do not know. I have an impression, about a quarter of a second before the collision took place, I saw something white cross the road and heard somebody call ‘whoa,’ and that is all I knew until I stopped my car. * * * My best judgment is I was traveling about 12 miles an hour. * * * At the time of the collision I was driving on the right of the road.’
*175 The manner in which and the point in the highway where the accident occurred presented a question of fact for a jury. If the testimony of defendant was accredited by the jury, plaintiff and her intestate, having observed the approaching automobile deliberately, thoughtlessly, or with an intention to avoid the same, left their side of the road at a moment when an automobile was rapidly approaching with lights illuminating the road, to cross over to the side of the highway where the automobile should be, and as claimed by defendant was traveling, and thereby collided with the same, or, on the contrary, defendant was driving upon his left side of the road and caused the collision.
The trial justice charged the jury fully as to the claims of the parties, and also charged that the plaintiff in her complaint specifically alleged the acts constituting negligence on the part of defendant (amongst which was that he was driving on the wrong side of the road, thereby causing the death of her husband, the alleged absence of signals having been eliminated from the case), and in order to recover the plaintiff must show that the accident happened in the way and in the manner she has alleged in her complaint.
‘It is for you to determine whether the defendant was driving on the wrong side of the road at the time he collided with the buggy; whether his lights did light up the road, and the whole road, ahead of him to the extent that the buggy was visible, and so, if he negligently approached the buggy in which plaintiff and her husband were driving at the time. If you find, from the evidence here, he was driving on the wrong side of the road, and that for this reason he collided with the buggy, which was proceeding on the proper side, or if you find that as he approached the buggy the road was so well lighted up that he saw or should have seen the buggy, and yet collided with it, then you may say, if you so find, that the defendant was careless and negligent.’
No exception was taken by the defendant to that charge, but at the *176 close of the charge counsel for defendant made certain requests to charge upon the subject as follows:
‘(1) If the jury find that Mr. Martin was guilty of any negligence, no matter how slight, which contributed to the accident, the verdict must be for defendant.
‘(2) In considering the photographs, and consideration of which side of the vehicle, wagon, was damaged, that the jury have no right to disregard physical facts, and unless they find the accident happened as described by Mrs. Martin and Mrs. Cain, the verdict must be for the defendant.
‘(3) The plaintiff must stand or fall on her claim as made, and, if the jury do not find that the accident happened as substantially claimed by her and her witnesses, that the verdict of the jury must be for defendant.
‘(4) It was the duty of Mr. Martin to keep to the right.’
Each one of the several requests was charged, and in addition the trial justice charged that if the deceased, Mr. Martin, collided with the automobile while the wagon was on the wrong side of the road, the verdict must be for defendant. The principal issue of fact was not only presented to the jury in the original charge made by the trial justice, but emphasized and concurred in by counsel for defendant. The prevailing opinion, in referring to the accident and the highway at the point where the accident occurred, describes the same in the following language:
‘At the point of the collision the highway makes a curve. The car was rounding the curve, when suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom.’
Such in substance was the testimony of the defendant, but his version was rejected by the jurors and the Appellate Division, and the evidence in the record is ample to sustain a contrary conclusion. As to the statement that the car was rounding ‘a curve, ‘*177 two maps made by engineers from actual measurements and surveys for defendant were put in evidence by counsel for plaintiff. Certain photographs, made for the purposes of the trial, were also before the jury. I think we may assume that the jurors gave credence to the maps and actual measurements, rather than to the photographs, and failed to discover therefrom a curve of any importance, or which would interfere with an unobstructed view of the road. As to the ‘buggy emerging, the defendant tells us, from the gloom,’ evidence was adduced by plaintiff tending to show that the searchlights on defendant’s car lighted up the entire roadway to the extent that the vehicle in which plaintiff and her husband were riding was visible; that the evening was not dark, though it appeared as though a rainfall might be expected. Some witnesses testified it was moonlight. The doctor called from Tarrytown, who arrived within 20 minutes after the collision, testified that the electric lights all along the highway were burning as he passed over the road. The width of the worked part of the highway at the point of the accident was 27 1/2 feet. About 25 feet westerly on the southerly side was located an electric light, which was burning. A line drawn across the highway from that light to the point of the accident would be about 42 feet.
One witness called by plaintiff lived in a house directly across the highway from the point of the accident. Seated in a front room, it was sufficiently light for her to see plaintiff’s intestate when he was driving along the road at a point near a telegraph pole, which is shown on the map some 90 or 100 feet easterly of the point of the accident, when she observed him turn his horse into the right towards the fence. Soon thereafter she heard the crash of the collision, and immediately went across the highway and found Mr. Martin in a sitting position on the grass. A witness called by the *178 defendant testified that she was on the stoop of her house, which is across the highway from the point of the accident and about 40 feet distant from said point, and while seated there she could see the body of Mr. Martin. While she testified the evening was dark, the lights on the highway were sufficient to enable her to see the body of Mr. Martin lying upon the grass 40 feet distant. The defendant upon cross-examination was confronted with his testimony given before the coroner, where he testified that the road was ‘fairly light.’
The facts narrated were passed upon by the jury under a proper charge relating to the same, and were sustained by the Appellate Division. The conclusions deducible therefrom are: (a) Defendant was driving his car upon the wrong side of the road. (b) Plaintiff and her intestate were driving a horse attached to the wagon in which they were seated upon the extreme right side of the road. (c) The highway was well lighted. The evening was not dark. (d) Defendant collided with the vehicle in which plaintiff and her husband were riding and caused the accident.
I must here note the fact that concededly there was no light upon the wagon in which plaintiff and her husband were riding, in order that I may express my views upon additional phrases in the prevailing opinion Therein it is stated:
*819 ‘there may, indeed, be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous.’
I am in accord with that statement, but I dissent from the suggestion we may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing the inference that, if defendant did not see the buggy thus illumined, it might reasonably infer that he would not have seen it anyway. Further the opinion states:
‘Here on the undisputed facts lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but *179 did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless rate of speed that warning would of necessity be futile. Nothing of this kind is shown.’
As to the rate of speed of the automobile, the evidence adduced by plaintiff’s witnesses was from 18 to 20 miles an hour, as ‘very fast’; further that after the collision the car proceeded 100 feet before it was stopped. The defendant testified that he was driving about 12 miles an hour, that at such rate of speed he thought the car should be stopped in 5 or 6 feet, and though he put on the foot brake, he ran 20 feet before he stopped. The jury had the right to find that a car traveling at the rate of 12 miles an hour, which could be stopped within 5 or 6 feet, and with the foot brake on, was not halted within 100 feet, must at the time of the collision have been running ‘very fast,’ or at a reckless rate of speed, and therefore warning would of necessity be futile. No claim was made that defendant was intoxicated, or that he purposely ran into the buggy. Nor was proof of such facts essential to plaintiff’s right to recover. This case does not differ from many others, wherein the failure to exercise reasonable care to observe a condition is disclosed by evidence and properly held a question of fact for a jury. In the earlier part of the prevailing opinion, as I have pointed out, the statement was:
‘The case against him [defendant] must stand or fall, if at all, upon the divergence of his course from the center of the highway.’
It would appear that ‘lack of vision, whether excusable or not, was the cause of the disaster,’ had been adopted in lieu of divergence from the center of the highway. I have therefore discussed divergence from the center of the road.
[***] My examination of the record leads me to the conclusion that lack of vision was not, on the undisputed facts, the sole cause of the disaster. Had the defendant been upon his right side of the road, upon the plaintiff’s theory he might have been driving recklessly, *180 and, the plaintiff and her intestate being near to the grass on the northerly side of a roadway 27 feet and upwards in width, the accident would not have happened, and the presence of or lack of vision would not be material. If, however, as found by the jury, defendant was wrongfully on plaintiff’s side of the road and caused the accident, the question of whether or not, under the facts, in the exercise of reasonable care, he might have discovered his error and the presence of plaintiff, and thereupon avoid the collision, was for the jury. The question was presented whether or not, as defendant approached the wagon, the roadway was so well lighted up that defendant saw, or in the exercise of reasonable care could have seen, the wagon in time to avoid colliding with the same, and upon that proposition the conclusion of the jury was adverse to defendant, thereby establishing that the lights of the car on the highway were equivalent to any light which, if placed upon the wagon of plaintiff, would have aroused the attention of defendant, and that no causal connection existed between the collision and absence of a light on the wagon.
At the close of the charge to the jury the trial justice was requested by counsel for defendant to charge:
‘That the failure to have a light on plaintiff’s vehicle is prima facie evidence of contributory negligence on the part of plaintiff.’
The justice declined to charge in the language stated, but did charge that the jury might consider it on the question of negligence, but it was not in itself conclusive evidence of negligence. For the refusal to instruct the jury as requested, the judgment of the Trial Term was reversed by the Appellate Division.
The request to charge was a mere abstract proposition. Even assuming that such was the law, it would not bar a recovery by plaintiff, unless such contributory negligence was the proximate and not a remote contributory cause of the injury. [***] The *181 request to charge excluded that important requisite. The trial justice charged the jury that the burden rested upon plaintiff to establish by the greater weight of evidence that plaintiff’s intestate’s death was caused by the negligence of the defendant and that such negligence was the proximate cause of his death; that by ‘proximate cause,’ is meant that cause without which the injury would not have happened, otherwise she could not recover in the action. In the course of his charge the justice enlarged on the subject of contributory negligence, and in connection therewith read to the jury the provisions of the highway law, and then charged that the jury should consider the absence of a light upon the wagon in which plaintiff and her intestate were riding and whether the absence of a light on the wagon contributed to the accident.
At the request of counsel for defendant, the justice charged that, if the jury should find any negligence on the part of Mr. Martin, no matter how slight, contributed to the accident, the verdict must be for the defendant. I cannot concur that we may infer that the absence of a light on the front of the wagon was not only the cause, but the proximate cause, of the accident. Upon the evidence adduced upon the trial and the credence attached to the same, the fact has been determined that the accident would have been avoided, had the defendant been upon his side of the road, or attentive to where he was driving along a public highway, or had he been driving slowly, used his sense of sight, and observed plaintiff and her intestate as he approached them; they being visible at the time.
The defendant’s request to charge, which was granted, ‘that plaintiff must stand or fall on her claim as made, and, if the jury do not find that the accident happened as substantially claimed by her and her witnesses, that the verdict of the jury must be for the defendant,’ presented the question quite succinctly. The jury found that the accident happened as claimed by the plaintiff and her witnesses, and we cannot surmise or *182 infer that the accident would not have happened, had a light been located on the wagon. [***]
It would not be profitable to refer to and analyze the numerous decisions of this court upon the effect of a violation of an ordinance or a statute. A large number of cases were cited in the opinions in the Amberg Case. That case was decided upon the principle that, where a duty is imposed by statute and a violation of the duty causes an injury, such violation is evidence of negligence as matter of law. [***] The charge requested and denied in this case was in effect that a failure to have a light upon the intestate’s wagon was as matter of law such negligence on his part as to defeat the cause of action, irrespective of whether or not such negligence was the proximate cause of the injury. My conclusion is that we are substituting form and phrases for substance, and diverging from the rule of causal connection.
Order affirmed.
Note 1. What differences stood out to you in the two descriptions of fact represented in the majority and dissenting opinions? Which strikes you as more careful? Which seems more persuasive?
Note 2. What is the legal significance of the plaintiff’s allegation that “the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of the approaching car”?
Note 3. What precisely was the error in the instruction to the jury, according to the majority opinion?
Res Ipsa Loquitur (“RIL”). This phrase is Latin for “the thing speaks for itself.” Its use traces to a 19th-century British case, Byrne v. Boadle, where it may have been intended to do no more than provide fancy Latin dicta suggestive of the court’s rationale. (There are also theories that it intentionally sought to expand liability and codify a series of earlier rulings; it is not entirely clear). Whatever the intended purpose of the phrase, it has since evolved into something besides a mere placeholder or explanation. Some courts treat it as a substantive doctrine and others as a rule of evidence (whose precise effect varies by jurisdiction). In this casebook, we will treat it as a rule of evidence with important substantive implications. In brief, when evidence regarding the defendant’s breach of due care is unavailable, mysterious, or inaccessible to plaintiff but not defendant, the RIL may be deemed applicable by a judge (and then sent to be applied by the jury, in most cases). The effect and operation of the doctrine vary, but in all cases, its purpose is to help a party (usually the plaintiff) whose case is otherwise fatally flawed on the question of what happened, or how their injuries came to about as a function of the defendant’s negligence. Because RIL is being used to help the plaintiff’s case in some way, it is usually applied narrowly; not every mysterious accident applies. The next case is commonly credited with being the source of the doctrine.
(2 H. & C. 722, 159 Eng.Rep. 299)
[Action for negligence. The plaintiff’s evidence was that he was walking in a public street past the defendant’s shop, and that a barrel of flour fell upon him from a window above the shop, knocked him down, and seriously injured him. There was no other evidence. The Assessor was of the opinion that there was no evidence of negligence for the jury, and nonsuited the plaintiff, reserving leave to him to move the Court of Exchequer to enter the verdict for him for £50 damages. Plaintiff obtained a rule nisi.]
Charles Russell [attorney for defendant] now shewed cause.
First, there was no evidence to connect the defendant or his servants with the occurrence. It is consistent with the evidence that the purchaser of the flour was superintending the lowering of it by his servant, or it may be that a stranger was engaged to do it without the knowledge or authority of the defendant. [Pollock, C.B. The presumption is that the defendant’s servants were engaged in removing the defendant’s flour; if they were not it was competent to the defendant to prove it.]
Secondly, assuming the facts to be brought home to the defendant or his servants, these facts do not disclose any evidence for the jury of negligence. The plaintiff was bound to give affirmative proof of negligence. But there was not a scintilla of evidence, unless the occurrence is of itself evidence of negligence. There was not even evidence that the barrel was being lowered by a jigger-hoist as alleged in the declaration. [Pollock, C.B. There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. In some cases the Courts have held that the mere fact of the accident having occurred is evidence of negligence, as, for instance, in the case of railway collisions.]
POLLOCK, C.B. We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff. The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. * * * The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.
Note 1. Why did the plaintiff need help in this case? Why not allow the plaintiff’s case to fail? What policy considerations drive the doctrine, in your view?
Note 2. One common fact pattern in RIL cases is objects falling from the sky onto plaintiffs’ heads. And yes, it’s tort law: there are indeed whole classes of fact patterns like this. In fact, a non-trivial number of them seem to involve chairs being flung out of hotel windows. (See Larson v. St. Francis Hotel, 83 Cal.App.2d 210 (1948) (res ipsa loquitur not applicable in action against hotel for injuries suffered by pedestrian when she was struck by a “heavy, overstuffed armchair” thrown from a window to the sidewalk; hotel lacked exclusive control of its furniture and the accident was not one that would ordinarily not happen without negligence). The case is often taught along with the historical background: “The accident out of which this action arose was apparently the result of the effervescence and ebullition of San Franciscans in their exuberance of joy on V-J Day, August 14, 1945.” These end-of-war celebrations might have played a role in the court’s determination since it might have been deemed impossible to control the partying that ensued. “Although there were a number of persons in the immediate vicinity, no one appears to have seen from whence the chair came nor to have seen it before it was within a few feet of plaintiff’s head, nor was there any identification of the chair as belonging to the hotel. However, it is a reasonable inference that the chair came from some portion of the hotel.” Larson, at 513 (1948). More recently, seehttps://news.yahoo.com/woman-sues-76ers-owners-property-000841467.html?guccounter=1Woman Sues 76ers Owner’s Property Company
(25 Cal.2d 486)
On October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment as appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr. Spangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital, was given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard and wheeled into the operating room by a nurse whom he believed to be defendant Gisler, an employee of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift, adjusted plaintiff for *488 the operation, pulling his body to the head of the operating table and, according to plaintiff’s testimony, laying him back against two hard objects at the top of his shoulders, about an inch below his neck. Dr. Reser then administered the anesthetic and plaintiff lost consciousness. When he awoke early the following morning he was in his hospital room attended by defendant Thompson, the special nurse, and another nurse who was not made a defendant.
Plaintiff testified that prior to the operation he had never had any pain in, or injury to, his right arm or shoulder, but that when he awakened he felt a sharp pain about half way between the neck and the point of the right shoulder. He complained to the nurse, and then to Dr. Tilley, who gave him diathermy treatments while he remained in the hospital. The pain did not cease, but spread down to the lower part of his arm, and after his release from the hospital the condition grew worse. He was unable to rotate or lift his arm, and developed paralysis and atrophy of the muscles around the shoulder. He received further treatments from Dr. Tilley until March, 1940, and then returned to work, wearing his arm in a splint on the advice of Dr. Spangard.
Plaintiff also consulted Dr. Wilfred Sterling Clark, who had X-ray pictures taken which showed an area of diminished sensation below the shoulder and atrophy and wasting away of the muscles around the shoulder. In the opinion of Dr. Clark, plaintiff’s condition was due to trauma or injury by pressure or strain, applied between his right shoulder and neck.
Plaintiff was also examined by Dr. Fernando Garduno, who expressed the opinion that plaintiff’s injury was a paralysis of traumatic origin, not arising from pathological causes, and not systemic, and that the injury resulted in atrophy, loss of use and restriction of motion of the right arm and shoulder.
Plaintiff’s theory is that the foregoing evidence presents a proper case for the application of the doctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes the granting of a nonsuit improper. Defendants’ [***] main defense may be briefly stated in two propositions: (1) that where there are several defendants, and there is a division of responsibility in the use of an instrumentality causing the injury, and the injury might have resulted from the separate act of either one of two or more persons, the rule of res ipsa loquitur cannot be invoked against any one of them; and (2) that where there are several instrumentalities, and no showing is made as to which caused the injury or as to the particular defendant in control of it, the doctrine cannot apply. We are satisfied, however, that these objections are not well taken in the circumstances of this case.
The doctrine of res ipsa loquitur has three conditions: “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” [c] is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care. [cc]
There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose. The result has been that a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which *490 arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget that “the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.” [cc] Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231].) In the last-named case, where an unconscious patient in a hospital received injuries from a fall, the court declared that without the doctrine the maxim that for every wrong there is a remedy would be rendered nugatory, “by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them.”
The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other. The passenger sitting awake in a railroad car at the time of a collision, the pedestrian walking along the street and struck by a falling object or the debris of an explosion, are surely not more entitled to an explanation than the unconscious patient on the operating table.
Viewed from this aspect, it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability. [c] If this were the state of the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the principles of absolute liability, irrespective of negligence, in actions by persons suffering injuries *491 during the course of treatment under anesthesia. But we think this juncture has not yet been reached, and that the doctrine of res ipsa loquitur is properly applicable to the case before us.
The condition that the injury must not have been due to the plaintiff’s voluntary action is of course fully satisfied under the evidence produced herein; and the same is true of the condition that the accident must be one which ordinarily does not occur unless someone was negligent. We have here no problem of negligence in treatment, but of distinct injury to a healthy part of the body not the subject of treatment, nor within the area covered by the operation. The decisions in this state make it clear that such circumstances raise the inference of negligence, and call upon the defendant to explain the unusual result.[c]
The argument of defendants is simply that plaintiff has not shown an injury caused by an instrumentality under a defendant’s control, because he has not shown which of the several instrumentalities that he came in contact with while in the hospital caused the injury; and he has not shown that any one defendant or his servants had exclusive control over any particular instrumentality. Defendants assert that some of them were not the employees of other defendants, that some did not stand in any permanent relationship from which liability in tort would follow, and that in view of the nature of the injury, the number of defendants and the different functions performed by each, they could not all be liable for the wrong, if any.
We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other. For example, in the present case it appears that Doctors Smith, Spangard and Tilley were physicians or surgeons commonly placed in the legal category of independent contractors; and Dr. Reser, the anesthetist, and defendant Thompson, the special nurse, were employees of Dr. Swift and not of the other doctors. But we do not believe that either the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for *492 failure in this regard. Any defendant who negligently injured him, and any defendant charged with his care who so neglected him as to allow injury to occur, would be liable. The defendant employers would be liable for the neglect of their employees; and the doctor in charge of the operation would be liable for the negligence of those who became his temporary servants for the purpose of assisting in the operation.
In this connection, it should be noted that while the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon him for their negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable for the negligence of an assisting nurse who leaves a sponge or other object inside a patient, and the fact that the duty of seeing that such mistakes do not occur is delegated to others does not absolve the doctor from responsibility for their negligence. [cc]
It may appear at the trial that, consistent with the principles outlined above, one or more defendants will be found liable and others absolved, but this should not preclude the application of the rule of res ipsa loquitur. The control, at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation. Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment by the defendants; it is manifestly unreasonable for them to insist that he identify any one of them as the person who did the alleged negligent act.
The other aspect of the case which defendants so strongly emphasize is that plaintiff has not identified the instrumentality any more than he has the particular guilty defendant. Here, again, there is a misconception which, if carried to the extreme for which defendants contend, would unreasonably limit the application of the res ipsa loquitur rule. It should be enough that the plaintiff can show an injury resulting *493 from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make.
An examination of the recent cases, particularly in this state, discloses that the test of actual exclusive control of an instrumentality has not been strictly followed, but exceptions have been recognized where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. Thus, the test has become one of right of control rather than actual control. See Metx v. Southern Pac. Co., 51 Cal.App.2d 260, 268). In the bursting bottle cases where the bottler has delivered the instrumentality to a retailer and thus has given up actual control, he will nevertheless be subject to the doctrine where it is shown that no change in the condition of the bottle occurred after it left the bottler’s possession, and it can accordingly be said that he was in constructive control. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453). Moreover, this court departed from the single instrumentality theory in the colliding vehicle cases, where two defendants were involved, each in control of a separate vehicle. [cc] Finally, it has been suggested that the hospital cases may properly be considered exceptional, and that the doctrine of res ipsa loquitur “should apply with equal force in cases wherein medical and nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries.” (Maki v. Murray Hospital, 91 Mont. 251; see, also, Whetstine v. Moravec, 228 Iowa 352, where the court refers to the “instrumentalities” as including “the unconscious body of the plaintiff.”)
In the face of these examples of liberalization of the tests for res ipsa loquitur, there can be no justification for the rejection of the doctrine in the instant case. As pointed out above, if we accept the contention of defendants herein, there will rarely be any compensation for patients injured while unconscious. A hospital today conducts a highly integrated system of activities, with many persons contributing their efforts. There may be, e.g., preparation for surgery by nurses *494 and internes who are employees of the hospital; administering of an anesthetic by a doctor who may be an employee of the hospital, an employee of the operating surgeon, or an independent contractor; performance of an operation by a surgeon and assistants who may be his employees, employees of the hospital, or independent contractors; and post surgical care by the surgeon, a hospital physician, and nurses. The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm. It is rather a good reason for re-examination of the statement of legal theories which supposedly compel such a shocking result.
We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.
The judgment is reversed.
Note 1. The court expresses concern that “a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.” If parties can be compelled to testify under oath at trial, why would the court be worried?
Note 2. How far should the rule of Ybarra v. Spangard extend, in your view? Does it seem equally fair to apply it in different kinds of contexts or does it gain greater legitimacy in the context of medical care?
Note 3. How important is the “instrumentality” to the operation of RIL? If it is unknown, can RIL be deployed nonetheless? If it is known, is RIL truly necessary?
Note 4. What is the significance of the court’s reference to the operations of a “modern hospital”?
1. Heating, ventilation, and air conditioning is commonly abbreviated as “HVAC.”
2. Chester also brought product liability claims against Kingpin and one of Kingpin’s suppliers. These claims were not dismissed on summary judgment and are not before this court.
3. The FDA does not require that tattoo inks be sterile. See Centers for Disease Control, Morbidity and Mortality Weekly Report (MMWR), Tattoo–Associated Nontuberculous Mycobacterial Skin Infections—Multiple States, 2011–2012 (August 24, 2012) Vol. 61, No. 33, 653–656 at http://www.cdc.gov/mmwr/pdf/wk/mm6133.pdf
4. Editor’s note: This is a reference to Judge Learned Hand’s negligence calculus, B < PL, referred to at the start of Module.
5. A statute must still be shown to be applicable under the negligence per se test before its violation may be introduced even as mere evidence of negligence. That is, the statute must be designed to protect the proper class of persons, to protect the particular interest involved, and to protect against the harm which results. See Young v. Caravan Corp., 99 Wash.2d 655, 663 P.2d 834 (1983). Thus, only relevant statutory violations will be admitted.
6. Franco v. Bunyard, 261 Ark. 144, cert. denied, 434 U.S. 835, (1977); Eagan v. Marr Scaffolding Co., 14 Mass. App. 1036 (1982), review denied, 445 N.E.2d 156 (1983); Fisher v. O’Connor’s, Inc., 53 Md. App. 338 (1982); Floridia v. Farlee, 201 Neb. 39 (1978); Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975); Burns v. Bombard, 128 Vt. 178, 260 A.2d 219 (1969); Distad v. Cubin, 633 P.2d 167 (Wyo.1981).
7. Stephens v. State, 440 So.2d 920 (La.Ct.App.1983), cert. denied, 443 So.2d 1119 (1984); Agnello v. Puzzo, 110 Ill.App.3d 913 (1982); Dongo v. Banks, 448 A.2d 885 (Me.1982); Hall v. Warren, 632 P.2d 848 (Utah 1981); Vandergrift v. Johnson, 157 W.Va. 958 (1974). | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/03%3A_Negligence/3.05%3A_Negligence_Per_Se_and_Res_Ipsa_Loquitur.txt |
Causation in Fact versus Proximate Cause. There are two distinct inquiries to satisfy the causation element for negligence. The first, “cause in fact,” poses a factual causation (did this thing cause that injury) and the second, “proximate cause,” poses a policy question (given that this thing did cause that injury, should the law limit or find liability in this case?) The first question is descriptive; the second question is normative. Proximate cause functions somewhat like duty in that both can operate as liability-limiting principles except that duty is a question of law determined by the judge and often used as a gatekeeping mechanism; proximate cause is a question of fact decided by the jury and thus usually requires development of a fuller factual record. Both causation and proximate cause are questions of fact determined by the jury. One might reasonably ask why cause in fact would be a jury question given that it can sometimes involve intensely complicated fact patterns. The plaintiff may have to describe complex manufacturing processes or be able to trace harm back to exposure to chemicals, for example, thus requiring the jury to ascertain the existence of some sort of careless mistake and the likelihood that it caused the plaintiff’s injury. One might also reasonably ask why proximate cause would be a jury question given that it requires a clear policy determination and judges seem likelier to be versed in making policy determinations. We will return to this question below when we discuss proximate cause in the next chapter. This introductory discussion deliberately defers the greater complexities associated with causation, such as when there are multiple sufficient causes or when causes may combine to create concurrent consequences. The initial focus here is on the most foundational understanding of causation in fact.
Causation in fact is often described using a counterfactual inquiry that begins with the defendant’s breach of conduct, whatever it constituted. Was that breach the “sine qua non” (Latin for the thing “without which, there would be none”)? That is, if we subtracted the defendant’s unreasonable conduct from the facts of the case and the harm would not have happened, then causation in fact is met. If the breach of due care, when removed, makes no difference to the plaintiff’s injuries, causation in fact is typically not met. In some cases a different test may be required because of multiple tortfeasors or causes. But this initial test of “but-for causation” is the primary means of satisfying the first prong of the causation element.
Questions or Areas of Focus for the Readings
• Causation in fact is a factual question for the jury. As you read cases of varying kinds and complexity, do they seem applicable amenable to jury decision making?
• If certain kinds of harm make causation harder, more expensive, or impossible to prove, what mechanisms or outcomes seem appropriate to adopt?
• Causation in fact is distinguished from proximate cause in that the former inquiry is “factual” and the latter is normative, based on policy considerations, as you will learn in a subsequent set of readings. However, the distinction between them suggests that causation in fact possesses fewer policy issues. Consider whether the causation element seems distinguishable from tort law’s more explicitly policy-driven questions.
(334 Or. 264) (Facts excerpted from trial and appellate opinions)
[***] “Gary Garrison was severely injured in a fall at the Fryrear transfer station, which is owned and operated by Deschutes County. The transfer station was designed and built using ‘Z-wall construction’, which consists of a concrete upper slab with a 14.5-foot retaining wall that drops to a concrete lower slab. The design allows persons using the transfer station to back their vehicles onto the upper slab and dump their garbage into semi-truck trailers that have been placed on the lower slab. There is a seven-inch railroad tie at the edge of the upper slab that serves as a barrier to warn drivers not to back their vehicles any further. At the time of Garrison’s fall, there were no other barriers or fences on the upper slab, and there were no signs warning users of the danger of falling from the upper to the lower one.
On the day that Garrison was injured, he and his wife had driven to the transfer station in their pickup with a load of refuse. Both had been to the transfer station before and, as at those earlier times, Garrison backed the pickup up to the railroad tie barrier and lowered the tailgate. When the tailgate was lowered, it protruded out over the edge of the upper slab. Both Garrison and his wife were aware of the distance of the drop from the upper to the lower slab and had discussed the importance of being careful so as not to fall. Garrison stood in the back of the pickup and threw the refuse over the edge and into the trailer below. When he was finished, he grabbed a lumber rail on *268 the back of the pickup and attempted to swing out onto the pavement of the upper slab. In doing so, he fell to the pavement of the lower slab, suffering severe injuries to his face, head, arms and chest.” 162 Or. App. at 162-63.
Plaintiffs’ amended complaint alleged that the county was negligent “[i]n failing to maintain a premises which is reasonably safe from dangers which were known or, in the exercise of reasonable care, should have been known to defendant by placing fences, barriers, or other protective devices next to the wall to prevent individuals from falling,” and “[i]n failing to protect invitees from unreasonably dangerous conditions on the premises which were known to the defendant or, in the exercise of reasonable care, should have been known to the defendant by posting signs or other warning devices warning of the immediate drop off.” [***]
[P]laintiffs contended that the county had a duty to warn of any known dangerous condition on its land and had failed to do so. [***]
The trial court [***] rejected plaintiffs ‘failure-to-warn claim, based on what the court termed a “lack of causation.” The court observed that the danger was open and obvious and, in light of plaintiffs’ deposition testimony that they were well aware of the risk, the failure to warn did not expose them to any greater risk of harm than would have been present had they been warned. Accordingly, the court concluded that there was no genuine issue of fact or evidence in the record from which a reasonable juror could have found that there was a causal link of any kind between the failure to warn and the accident that befell Garrison [***] [T]he Court of Appeals agreed that the danger was an obvious one, that plaintiffs were fully aware of the danger, and, consequently, that the absence of a warning did not expose plaintiffs to any greater risk of harm than if they had been warned.
Plaintiffs’ first and third specifications of negligence, concerning the county’s allegedly negligent design of the transfer station,[1] invoke the general common-law responsibility of all persons to avoid conduct that creates a specific *272 risk of injury to others, as well as the special duties that a possessor of land owes to business invitees. In similar cases involving private landowners and occupiers, this court typically begins by examining the claims to determine whether the property owner’s alleged conduct was unreasonable in the circumstances and created a foreseeable, unreasonable risk of harm to the plaintiff. [c] A private landowner or occupier of land in a position similar to the county’s would be required to take care to protect patrons on the premises from injuries resulting from known, dangerous conditions on the premises or, at least, to warn them of the danger. Woolston v. Wells, 297 Or. 548, 557-58 (1984). [***]
Plaintiffs argue that Woolston stands for the proposition that even obvious hazards must be considered within a scheme of comparative fault. The court there stated:
“Each party is held to the same standard of care with respect to common law negligence. Negligence is conduct falling below the standard established for the protection of others, or oneself, against unreasonable risk of harm. The standard of care is measured by what a reasonable person of ordinary prudence would, or would not, do in the same or similar circumstances.” * * *
In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee’s visit. The possessor must exercise the standard of care above stated to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm. The invitee is required to exercise that same standard of care in avoiding harm from a condition of the premises of which he knows, or, in the exercise of that standard of care, of which he should know. *279
Instructions to the jury should be framed in terms of that standard of care. The jury will thereby be enabled to determine whether any given party is at fault and if both are at fault to compare that fault as the statute commands. In determining and comparing fault, the jury must necessarily consider the obviousness of danger and the ease or difficulty with which harm to the plaintiff from that danger could be avoided by either party.” 297 Or. at 557-58, (citation omitted).
Plaintiffs contend that the Court of Appeals’ holding is inconsistent with the foregoing directive. They assert that the Court of Appeals effectively held, as a matter of law, that there is no “causal link” when the invitee confronts a known or obvious danger. [***]
Plaintiffs misunderstand the Court of Appeals’ holding. The Court of Appeals concluded that, on the undisputed evidence in this case, there was no causal link between the county’s failure to warn and the injuries that befell plaintiffs. That conclusion is well supported by the evidence that plaintiffs were fully aware of the danger presented by the drop-off and the lack of a barrier at the edge of the platform.
In the present case, the evidence on summary judgment establishes that the county’s failure to warn did not expose plaintiffs to any greater risk of harm than if they had been warned. Plaintiffs testified at length at their depositions that they had used the transfer station before, that they knew of and always had been concerned about the drop-off and the lack of a protective barrier at the edge of the platform, and that they had discussed the importance of being careful not to fall. Given that testimony, no reasonable juror could find that a warning would have made a difference. The Court of Appeals was correct in so holding.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Note 1. This case also featured two additional important issues: first, the question of the government’s qualified immunity from suit here (to which Module 4 returns, using this same case), and second, the question of whether the transfer station was negligently designed. Can you see the significance of those questions looming in the background, in addition to this more straightforward doctrinal issue of causation?
Note 2. What was the act or acts that constituted a potential breach of duty here? Why did this not matter? Did the court’s reasoning rest on the plaintiff’s conduct or the defendant’s (or both)?
Note 3. If the plaintiff had been clearly negligent in his conduct, how might the analysis need to shift? When “but-for causation” fails because of multiple sources of negligent conduct, many courts apply the substantial factor test in which they ask whether the unreasonable conduct was a substantial factor in the ultimate harm. This test has been critiqued because of its malleability since “substantial,” like “reasonable” is a standard that lacks a fixed meaning. However but it can be useful when the causal nexus is complicated.
Challenges for Causation Analysis
It is not uncommon in accidents caused by allegedly tortious conduct to find that multiple factors played a role in causing the harm. In some instances, as you will see in the cases throughout this section, it can be proven that either one or another factor (or party) caused the harm but it may remain difficult for the plaintiff to determine which of the two alternate possible tortfeasors was the actual tortfeasor. Such a scenario invites the application of alternate liability, as in Summers v. Tice. However, even more commonly, there are more than two parties or factors potentially to blame. If the factors must havecombined to cause the harm, then under concurrent liability it may be that all are blameworthy whether or not they are all reachable through a lawsuit. (Sometimes, one party is immune or judgment proof or unavailable for some other reason.) Joint and several liability may also apply in some cases.
Under joint and several liability, any of the tortfeasors may be individually liable for the amount they alone caused or for the amount of harm caused by the whole group, either because the actors were acting in concert (on some sort of outing or joint venture perhaps) or because they caused harm that is effectively indivisible. These are problems of liability—who caused the harm—but also problems of allocation—who should pay for the harm regardless of who actually caused it. In some rare instances, there are numerous separate entities causing wrongdoing and sometimes it is not clear which tortfeasor caused the specific harm suffered by a particular plaintiff. In concert liability fails because the entities are not connected; joint liability fails for the same reason. Alternate liability would also fail because there are more than two. In response to a case of widespread harm in the form of birth defects caused by a drug ingested by pregnant women, the California Supreme Court applied a new doctrine, market share liability, which allows a plaintiff who suffers from some defective product to pursue a manufacturer of the product even if it’s unclear whether that manufacturer or another one caused their harm. There are particular limits as different courts have adopted the doctrine and it is extremely rare for courts to apply it for reasons explained in a later case. In Smith v. Cutter Biological 72 Haw. 416 (1991), the court declined to adopt either alternate liability or joint liability when the hemophiliac recipient of a blood transfusion contracted AIDS from the procedure, but the court found that the plaintiff could recover under market share liability.
(33 Cal.2d 80)
Each of the two defendants appeals from a judgment against them in an action for personal injuries. Pursuant to stipulation the appeals have been consolidated. Plaintiff’s action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. The case was tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to ‘keep in line.’ In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in flight to a ten foot elevation and flew between plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff’s direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as *83 the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent.
First, on the subject of negligence, defendant Simonson contends that the evidence is insufficient to sustain the finding on that score, but he does not point out wherein it is lacking. There is evidence that both defendants, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence. The issue was one of fact for the trial court. [c]
Defendant Tice states in his opening brief, ‘we have decided not to argue the insufficiency of negligence on the part of defendant Tice.’ It is true he states in his answer to plaintiff’s petition for a hearing in this court that he did not concede this point but he does not argue it. Nothing more need be said on the subject.
Defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk as a matter of law. He cites no authority for the proposition that by going on a hunting party the various hunters assume the risk of negligence on the part of their companions. Such a tenet is not reasonable. It is true that plaintiff suggested that they all ‘stay in line,’ presumably abreast, while hunting, and he went uphill at somewhat of a right angle to the hunting line, but he also cautioned that they use care, and defendants knew plaintiff’s position. We hold, therefore, that the trial court was justified in finding that he did not assume the risk or act other than as a person of ordinary prudence under the circumstances. [***] None of the cases cited by Simonson are in point.
The problem presented in this case is whether the judgment against both defendants may stand. It is argued by defendants that they are not joint tortfeasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries the shooting by Tice or that by Simonson. Tice argues that there is *84 evidence to show that the shot which struck plaintiff came from Simonson’s gun because of admissions allegedly made by him to third persons and no evidence that they came from his gun. Further in connection with the latter contention, the court failed to find on plaintiff’s allegation in his complaint that he did not know which one was at fault did not find which defendant was guilty of the negligence which caused the injuries to plaintiff.
Considering the last argument first, we believe it is clear that the court sufficiently found on the issue that defendants were jointly liable and that thus the negligence of both was the cause of the injury or to that legal effect. It found that both defendants were negligent and ‘That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff’s right eye and that another birdshot pellet was caused to and did lodge in plaintiff’s upper lip.’ In so doing the court evidently did not give credence to the admissions of Simonson to third persons that he fired the shots, which it was justified in doing. It thus determined that the negligence of both defendants was the legal cause of the injury or that both were responsible. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. The one shot that entered plaintiff’s eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants. It was from one or the other only.
It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. …These cases speak of the action of defendants as being in concert as the ground *85 of decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v. Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated (110 So. 668): ‘We think that * * * each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.’ (Emphasis added.) 110 So. p. 668.
It is said in the Restatement: ‘For harm resulting to a third person from the tortious conduct of another, a person is liable if he * * * (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.’ (Rest., Torts, sec. 876(b)(c).) Under subsection (b) the example is given: ‘A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal this being negligent as to persons on the road. A hits the animal. B’s bullet strikes C, a traveler on the road. A is liable to C.’ (Rest., Torts, Sec. 876(b), Com., Illus. 3.) An illustration given under subsection (c) is the same as above except the factor of both defendants shooting is missing and joint liability is not imposed. It is further said that: ‘If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself sufficient to bring about harm to another, the actor’s negligence may be held by the jury to be a substantial factor in bringing it about.’ (Rest., Torts, sec. 432.)
Dean Wigmore has this to say: ‘When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person’s two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. (b) * * * The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how *86 much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. * * * ’ (Wigmore, Select Cases on the Law of Torts, sec. 153.) Similarly Professor Carpenter has said: ‘(Suppose) the case where A and B independently shoot at C and but one bullet touches C’s body. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. It is suggested that there should be a relaxation of the proof required of the plaintiff * * * where the injury occurs as the result of one where more than one independent force is operating, and it is impossible to determine that the force set in operation by defendant did not in fact constitute a cause of the damage, and where it may have caused the damage, but the plaintiff is unable to establish that it was a cause.’ (20 Cal.L. Rev. 406.)
When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. This reasoning has recently found favor in this Court. In a quite analogous situation this Court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. Ybarra v. Spangard, 25 Cal.2d 486. There the Court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to *87 defendants to explain the cause of the injury. It was there said: ‘If the doctrine is to continue to serve a useful purpose, we should not forget that ‘the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.’’ 25 Cal.2d at page 490. Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury. [***]
Cases are cited for the proposition that where two or more tortfeasors acting independently of each other cause an injury to plaintiff, they are not joint tortfeasors and plaintiff must establish the portion of the damage caused by each, even though it is impossible to prove the portion of the injury caused by each. [cc] In view of the foregoing discussion it is apparent that defendants in cases like the present one may be treated as liable on the same basis as joint tortfeasors, and hence the last cited cases are distinguishable inasmuch as they involve independent tortfeasors.
In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent tortfeasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. [c] Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tortfeasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not a position to complain of uncertainty. [c]
It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. From what has been said it is clear that there has been no change in theory. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the case under either theory. We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.
The judgment is affirmed.
Note 1. Why does the court not discuss whether the parties breached their duty of due care?
Note 2.Summers v. Tice laid down a rule known now as “alternative liability” to cure the problem created when two defendants are found to have breached their duty, but it is unknown which of them caused the plaintiff’s harm. Do you follow the court’s discussion of in concert liability? And joint liability? Alternative liability differs from “in concert” liability. Can you identify how it does so? Does alternative liability rule seem fair to you? Why or why not? Does it seem efficient, whether or not it seems fair?
Note 3. The court mentions the problem of “more than one independent force is operating,” which may make it difficult to establish cause and quotes approvingly an article stating that in such cases “there should be a relaxation of the proof required of the plaintiff.” What does it mean, precisely, to “relax” the proof required? Did Ybarra v. Spangard, supra “relax” the proof for the plaintiff? If so, was it in a similar fashion as in Summers? If not, how would you characterize the application of RIL in Ybarra?
Note 4. If the facts of Summers changed to include multiple hunters, would this change your analysis?
Note 5.Multiple Sufficient Acts / Overdetermined Causation. In rare instances, more than one act or factor could independently cause a plaintiff’s injuries. The paradigmatic example is fire. Imagine two defendants separately and negligently cause fires to start on either side of the plaintiff’s home and the home is destroyed. Such a scenario would, under the but-for causation test, produce an unfair result: “But for Defendant 1’s negligent conduct, would the plaintiff’s harm still have occurred?” The answer must be yes, since Defendant 2’s conduct would also have resulted in destroying the home. In some cases, forensic analysis or a timeline can provide clues as to which party was more at fault, but in cases of indivisible harm that is occasionally impossible. It would be unfair to allow both parties to escape liability on the grounds that they each could point to the other as also being liable. This is different from Summers v. Tice in which one or the other but not both were liable. Hence a rule evolved to treat both their actions as a cause.
The Restatement (Third) of Torts: Phys. & Emot. Harm § 27 (2010) provides: “If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.”
Be sure to distinguish a scenario featuring successive tortfeasors from a multiple sufficient causes scenario. Imagine Defendant 1’s tortious conduct causes a collision that kills a plaintiff, if a second negligent ambulance driver comes, correctly confirms the plaintiff is dead and then does some additional minor damage to the plaintiff’s body in transporting it to a morgue. The ambulance driver might be liable for the additional minor damage to the corpse under a wrongful death statute. But they are a successive tortfeasor if so, not a cause of the plaintiff’s death; that liability falls to Defendant 1.
(140 F.3d 381)
[***] This suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680, was originally filed by Patricia Zuchowicz, who claimed to have developed primary pulmonary hypertension, a fatal lung condition, as a result of the defendant’s negligence in prescribing an overdose of the drug Danocrine. Following Mrs. Zuchowicz’s death in 1991, her husband, Steven, continued the case on behalf of his wife’s estate, claiming that the defendant was responsible for her death. After a bench trial, the district court awarded the plaintiff \$1,034,236.02 in damages.
The case statement recited above goes to the heart of the law of torts. A plaintiff claims to have developed a fatal condition as a result of a defendant’s negligence in prescribing an excessive amount of a drug—a tragic injury allegedly caused by defendant’s wrong. There is no doubt in the case before us either as to the injury or as to the defendant’s wrong; both are conceded. The only issue is causation. Did the action for which the defendant is responsible cause, in a legal sense, the harm which the plaintiff suffered?—a question easily put and often very hard to answer. There is, moreover, no older requirement in this area of law than the need to show such a link between the defendant’s actions and the plaintiff’s loss. It long precedes the obligation to show that the defendant was at fault.[2] Along with the showing of injury, *384 causation constituted an essential part of what the plaintiff had to demonstrate for the early common law action in trespass to lie.[3]
Over the centuries the courts have struggled to give meaning to this requirement—in the simplest of situations, who hit whom, [fn] and in the most complex ones, which polluter’s emissions, if any, hurt which plaintiff.[4] It is the question that we must seek to answer today in the context of modern medicine and a very rare disease.
II. Background
The facts, as determined by the district court, are as follows. On February 18, 1989, Mrs. Zuchowicz filled a prescription for the drug Danocrine at the Naval Hospital pharmacy in Groton, Connecticut. The prescription erroneously instructed her to take 1600 milligrams of Danocrine per day, or twice the maximum recommended dosage. The defendant has stipulated that its doctors and/or pharmacists were negligent and violated the prevailing standard of medical care by prescribing this wrong dosage. [***] In October 1989, she was diagnosed with primary pulmonary hypertension (“PPH”), a rare and fatal disease in which increased pressure in an individual’s pulmonary artery causes severe strain on the right side of the heart. At the time she was diagnosed with the disease, the median life expectancy for PPH sufferers was 2.5 years. [***] PPH is very rare. A National Institute of Health registry recorded only 197 cases of PPH from the mid–1980s until 1992. It occurs predominantly in young women. Exogenous agents known to be capable of causing PPH include birth control pills, some appetite suppressants, chemotherapy drugs, rapeseed oil, and L–Tryptophan. [***]
Danocrine has been extensively studied and prescribed since the late 1960s for endometriosis. According to the testimony of plaintiff’s expert Dr. W. Paul D’Mowski, who personally performed much of the initial research on the drug, Danocrine is safe and effective when administered properly. Based on studies by Dr. D’Mowski and others, Danocrine was approved by the Food and Drug Administration (“FDA”) for use in dosages not to exceed 800 mg/day. Mrs. Zuchowicz was accidentally given a prescription instructing her to take twice this amount—1600 mg/day. According to Dr. D’Mowski no formal studies of the effects of Danocrine at such high doses have been performed, and very, very few women have received doses this high in any setting.
The rarity of PPH, combined with the fact that so few human beings have ever received such a high dose of Danocrine, obviously impacted on the manner in which the plaintiff could prove causation. The number of persons who received this type of overdose was simply too small for the plaintiff to be able to provide epidemiological, or even anecdotal, evidence linking PPH to Danocrine overdoses. The plaintiff (Mrs. Zuchowicz’s husband and executor), therefore, based his case primarily on the testimony of two expert witnesses, Dr. Richard Matthay, a physician and expert in pulmonary diseases, and Dr. Randall Tackett, a professor of pharmacology who has published widely in the field of the effects of drugs on vascular tissues. In rendering a judgment for the plaintiff, the district court relied heavily on the evidence submitted by these two experts. The defendant challenges both the admissibility and the sufficiency of their testimony.
Dr. Richard Matthay is a full professor of medicine at Yale and Associate Director and Training Director of Yale’s Pulmonary and Critical Care Section. He is a nationally recognized expert in the field of pulmonary medicine, with extensive experience in the area of drug-induced pulmonary diseases. Dr. Matthay examined and treated Mrs. Zuchowicz. His examination included taking a detailed history of the progression of her disease, her medical history, and the timing of her Danocrine overdose and the onset of her symptoms. Dr. Matthay testified that he was confident to a reasonable medical certainty that the Danocrine caused Mrs. Zuchowicz’s PPH. When pressed, he added that he believed the overdose of Danocrine to have been responsible for the disease. His conclusion was based on the temporal relationship between the overdose and the start of the disease and the differential etiology method of excluding other possible causes. While Dr. Matthay did not rule out all other possible causes of pulmonary hypertension, he did exclude all the causes of secondary pulmonary hypertension. On the basis of Mrs. Zuchowicz’s history, he also ruled out all previously known drug-related causes of primary pulmonary hypertension.
Dr. Matthay further testified that the progression and timing of Mrs. Zuchowicz’s disease in relation to her overdose supported a finding of drug-induced PPH. Dr. Matthay emphasized that, prior to the overdose, Mrs. Zuchowicz was a healthy, active young woman with no history of cardiovascular problems, and that, shortly after the overdose, she began experiencing symptoms of PPH such as weight gain, swelling of hands and feet, fatigue, and shortness of breath. He described the similarities between the course of Mrs. Zuchowicz’s illness and that of accepted cases of drug-induced PPH, and he went on to discuss cases involving classes of drugs that are known to cause other pulmonary diseases (mainly anti-cancer drugs). He noted that the onset of these diseases, which are recognized to be caused by the particular drugs, was very similar in timing *386 and course to the development of Mrs. Zuchowicz’s illness.
Dr. Randall Tackett is a tenured, full professor of pharmacology and former department chair from the University of Georgia. He has published widely in the field of the effects of drugs on vascular tissues. Dr. Tackett testified that, to a reasonable degree of scientific certainty, he believed that the overdose of Danocrine, more likely than not, caused PPH in the plaintiff by producing: 1) a decrease in estrogen; 2) hyperinsulinemia, in which abnormally high levels of insulin circulate in the body; and 3) increases in free testosterone and progesterone. Dr. Tackett testified that these hormonal factors, taken together, likely caused a dysfunction of the endothelium leading to PPH. Dr. Tackett relied on a variety of published and unpublished studies that indicated that these hormones could cause endothelial dysfunction and an imbalance of vasoconstrictor effects.
II. Discussion
A. Was the Admission of the Plaintiff’s Experts’ Testimony Manifestly Erroneous?
The defendant’s first argument is that the district court erred in admitting the testimony of Dr. Tackett and Dr. Matthay. We review the district court’s decision to admit or exclude expert testimony under a highly deferential abuse of discretion standard. [c] The Federal Rules of Evidence permit opinion testimony by experts when the witness is “qualified as an expert by knowledge, skill, experience, training, or education,” and “[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.” Fed.R.Evid. 702. And though in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588–89, (1993), the Supreme Court altered the traditional test for the admissibility of expert testimony, it did not change the standard of appellate review of these decisions [c].[5]
Under Daubert, trial judges are charged with ensuring that expert testimony “both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. at 597. Thus, while Daubert and the Federal Rules of Evidence “allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the ‘gatekeeper’ role of the trial judge in screening such evidence.” [c] Indeed Daubert strengthens this role, for it requires that judges 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.” 509 U.S. at 592–93.
The factors identified by the Supreme Court as relevant to this inquiry are: (1) whether the theory can be (and has been) tested according to the scientific method; (2) whether the theory or technique has been subjected to peer review and publication; (3) in the case of a particular scientific technique, the known or potential rate of error; and (4) whether the theory is generally accepted. See id. at 593–94. The Court emphasized, however, that these factors were not an exclusive or dispositive list of what should be considered, and *387 that the trial court’s inquiry should be a “flexible one.” Id. at 594.
The question in this case is whether, in light of these factors, the district court’s decision to admit the testimony of Dr. Matthay and Dr. Tackett was an abuse of discretion. [***] In the case before us [***] the district court carefully undertook and fulfilled its role in making the evaluation required by Daubert—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.” 509 U.S. at 592–93. Where, as in this case, the district court decides to admit the testimony of well-credentialed experts relying on scientific methodology, we should and will be reluctant to upset that decision as an abuse of discretion.
In the district court, the defendant made substantially the same arguments, regarding the validity of the methods used by Dr. Matthay and Dr. Tackett in reaching their conclusions, that it now raises on appeal. The district court rejected these arguments, stating that the plaintiff’s experts “based their opinions on methods reasonably relied on by experts in their particular fields.” We do not believe that the district court’s decision in this regard was erroneous, let alone manifestly so.
B. Were the District Cour t’s Factual Findings with Respect to Causation Clearly Erroneous?
We review the district court’s factual findings for clear error. [c] The defendant argues that, even assuming that the testimony of the plaintiff’s experts was admissible, the district court’s finding that the Danocrine overdose more likely than not caused Mrs. Zuchowicz’s illness was clearly erroneous. The defendant contends that, since Danocrine has never been previously linked to PPH, the district court’s conclusion that the drug caused Mrs. Zuchowicz’s illness was impermissible. For the reasons stated below, we reject the defendant’s arguments.
The liability of the federal government under the Federal Tort Claims Act is determined according to the law of the state in which the injury occurred. See 28 U.S.C. § 1346(b); [c] Connecticut law, therefore, provides the applicable standards in this case. A plaintiff alleging medical malpractice in Connecticut must first prove that the defendant negligently deviated from the customary standard of care. [c] Since the defendant has stipulated that its agents were negligent in prescribing an overdose of the drug Danocrine, there is no question that this requirement is satisfied. In addition, “the plaintiff must establish a causal relationship between the physician’s negligent actions or failure to act and the resulting injury by showing that the action or omission constituted a substantial factor in *388 producing the injury.” [cc] This “substantial factor” causation requirement is the crux of the case before us.
To meet the requirement that defendant’s behavior was a substantial factor in bringing about the plaintiff’s injury, the plaintiff must generally show: (a) that the defendant’s negligent act or omission was a but for cause of the injury,[6] (b) that the negligence was causally linked to the harm, [fn] and (c) that the defendant’s negligent act or omission was proximate to the resulting injury. *389 [fn] [***]
In the case before us, as we shall see, neither the requirement of proximity nor that of causal link gives rise to any problems (though the presence of a strong causal link will prove to be highly significant). The case turns only on the difficulty of showing a but for cause. On whether, in other words, the plaintiff has sufficiently demonstrated: (a) that defendant’s act in giving Mrs. Zuchowicz Danocrine was the source of her illness and death, and (b) that it was not just the Danocrine, but its negligent overdose that led to Mrs. Zuchowicz’s demise.
We hold that, on the basis of Dr. Matthay’s testimony alone, the finder of fact *390 could have concluded—under Connecticut law—that Mrs. Zuchowicz’s PPH was, more likely than not, caused by Danocrine. While it was not possible to eliminate all other possible causes of pulmonary hypertension, the evidence presented showed that the experts had not only excluded all causes of secondary pulmonary hypertension, but had also ruled out all the previously known drug-related causes of PPH. In addition, [***] that the progression and timing of Mrs. Zuchowicz’s illness in relationship to the timing of her overdose supported a finding of drug-induced PPH to a reasonable medical certainty. In this respect, we note that in the case before us, unlike many toxic torts situations, there was not a long latency period between the onset of symptoms and the patient’s exposure to the drug that was alleged to have caused the illness. Rather, [***] the plaintiff began exhibiting symptoms typical of drug-induced PPH shortly after she started taking the Danocrine. Under the circumstances, we cannot say that the fact finder was clearly erroneous in determining that, more probably than not, the Danocrine caused Mrs. Zuchowicz’s illness.
To say that Danocrine caused Mrs. Zuchowicz’s injuries is only half the story, however. In order for the causation requirement to be met, a trier of fact must be able to determine, by a preponderance of the evidence, that the defendant’s negligence was responsible for the injury. In this case, defendant’s negligence consisted in prescribing an overdose of Danocrine to Mrs. Zuchowicz. For liability to exist, therefore, it is necessary that the fact finder be able to conclude, more probably than not, that the overdose was the cause of Mrs. Zuchowicz’s illness and ultimate death. The mere fact that the exposure to Danocrine was likely responsible for the disease does not suffice.
The problem of linking defendant’s negligence to the harm that occurred is one that many courts have addressed in the past. A car is speeding and an accident occurs. That the car was involved and was a cause of the crash is readily shown. The accident, moreover, is of the sort that rules prohibiting speeding are designed to prevent. But is this enough to support a finding of fact, in the individual case, that speeding was, in fact, more probably than not, the cause of the accident? The same question can be asked when a car that was driving in violation of a minimum speed requirement on a super-highway is rear-ended. Again, it is clear that the car and its driver were causes of the accident. And the accident is of the sort that minimum speeding rules are designed to prevent. But can a fact finder conclude, without more, that the driver’s negligence in driving too slowly led to the crash? To put it more precisely—the defendant’s negligence was strongly causally linked to the accident, and the defendant was undoubtedly a but for cause of the harm, but does this suffice to allow a fact finder to say that the defendant’s negligence was a but for cause?
At one time, courts were reluctant to say in such circumstances that the wrong could be deemed to be the cause. They emphasized the logical fallacy of post hoc, ergo propter hoc, and demanded some direct evidence connecting the defendant’s wrongdoing to the harm. See, e.g., Wolf v. Kaufmann, 227 A.D. 281, 282 (1929) (denying recovery for death of plaintiff’s decedent, who was found unconscious at foot of stairway which, in violation of a statute, was unlighted, because the plaintiff had offered no proof of “any causal connection between the accident and the absence of light”).
All that has changed, however. And, as is so frequently the case in tort law, Chief Judge Cardozo in New York and Chief Justice Traynor in California led the way. In various opinions, they stated that: if (a) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm. Where such a strong causal link exists, it is up to the negligent party to bring in evidence denying but for cause and suggesting *391 that in the actual case the wrongful conduct had not been a substantial factor.
Thus, in a case involving a nighttime collision between vehicles, one of which did not have the required lights, Judge Cardozo stated that lights were mandated precisely to reduce the risk of such accidents occurring and that this fact sufficed to show causation unless the negligent party demonstrated, for example, that in the particular instance the presence of very bright street lights or of a full moon rendered the lack of lights on the vehicle an unlikely cause. See Martin v. Herzog, 228 N.Y. 164 (1920); see also Clark v. Gibbons, 66 Cal.2d 399 (1967) (Traynor, C.J., concurring in part and dissenting in part on other grounds).
The general acceptance of this view is both signaled and explained by Prosser, which states categorically:
And whether the defendant’s negligence consists of the violation of some statutory safety regulation, or the breach of a plain common law duty of care, the court can scarcely overlook the fact that the injury which has in fact occurred is precisely the sort of thing that proper care on the part of the defendant would be intended to prevent, and accordingly allow a certain liberality to the jury in drawing its conclusion.
Prosser, supra note 6, § 41, at 270; see also Calabresi, supra note 6, at 71–73.
It is clear that Connecticut accepts this approach. [***] The case before us is a good example of the above-mentioned principles in their classic form. The reason the FDA does not approve the prescription of new drugs at above the dosages as to which extensive tests have been performed is because all drugs involve risks of untoward side effects in those who take them. Moreover, it is often true that the higher the dosage the greater is the likelihood of such negative effects. At the approved dosages, the benefits of the particular drug have presumably been deemed worth the risks it entails. At greater than approved dosages, not only do the risks of tragic side effects (known and unknown) increase, but there is no basis on the testing that has been performed for supposing that the drug’s benefits outweigh these increased risks. See generally 21 U.S.C. § 355(d) (indicating that the FDA should refuse to approve a new drug unless the clinical tests show that the drug is safe and effective for use under the conditions “prescribed, recommended, or suggested in the proposed labeling”). It follows that when a negative side effect is demonstrated to be the result of a drug, and the drug was wrongly prescribed in an unapproved and excessive dosage (i.e. a strong causal link has been shown), the plaintiff who is injured has generally shown enough to permit the finder of fact to conclude that the excessive dosage was a substantial factor in producing the harm.
In fact, plaintiff’s showing in the case before us, while relying on the above stated principles, is stronger. For plaintiff introduced some direct evidence of causation as well. On the basis of his long experience with drug-induced pulmonary diseases, one of plaintiff’s experts, Dr. Matthay, testified that the timing of Mrs. Zuchowicz’s illness led him to conclude that the overdose (and not merely Danocrine) was responsible for her catastrophic reaction.
Under the circumstances, we hold that defendant’s attack on the district court’s finding of causation is meritless.
Note 1. Why was it a challenge for the plaintiff to establish causation? The court offers reasoning that suggests the facts of this case made it especially difficult. When do you imagine it is not difficult to prove causation in cases involving pharmaceutical drugs and other complex chemicals? What level of certainty should be required in assessing causation in humans if no human trials have been conducted?
Note 2. What role does negligence per se play in this case?
Note 3.Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).Zuchowicz refers to Daubert, a case that reformed the standards by which scientific testimony could be admitted in federal courts. Post-Daubert, testimony must be both relevant (under the Federal Rules of Evidence) and reliable (using a new list of factors cited in the opinion above) before it may be admissible. You will likely learn about Daubert (pronounced DOW (rhymes with cow)-burt) when you study Evidence (in law school or for the bar exam), and it’s an important case for tort law’s breach, causation and damages inquiries. What you need to know for tort law is that it’s the applicable standard for scientific and medical evidence in federal courts. Some state courts have also adopted Daubert while others retained Frye, the older standard, which required that expert testimony be subject to “generally accepted principles.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
(184 Misc.2d 639)
Defendant City of New York moves, and co-defendants, 1845 7th Avenue Realty Associates, L.P., 1845 7th Avenue, Inc., Ari Parnes and Sharp Management Corp., cross-move, for an order compelling plaintiffs to provide authorizations for the siblings’ complete school records, including colleges or universities attended, courses taken and grades received, teacher reports and evaluations, and the results of standardized tests, SAT and Advanced Placement tests, and psychological testing and evaluations. Alternatively, defendants move and cross-move for an order precluding plaintiffs from offering any evidence at trial regarding the academic performance of the infant plaintiff’s siblings. Plaintiffs oppose the motion and cross-motion.
This is an action for damages for personal injuries sustained by the infant plaintiff, Jordan Nieves, born on September 5, 1992, as the result of exposure to lead-based paint while residing at 1851 7th Avenue, Apt. 15, New York, New York. In May 1997, defendant City served a Demand for Discovery and Inspection requesting, inter alia, the name, date of birth and current address of any siblings of the infant plaintiff, and for each sibling, the “[n]ames and addresses of any and all schools, pre-schools or day-care centers attended, and duly executed authorizations allowing those institutions to release their records to the defendant(s).” Plaintiffs responded with the names and dates of birth of three siblings (Kevin Michael Cleare, DOB 1/9/81; David Christopher Nieves, DOB 2/16/81; and Ishmael Cleare, DOB 10/3/83), but objected to the demand for academic information as “seek[ing] irrelevant and private information.” In August 1998, co-defendants served a Demand for Authorizations to obtain the complete educational records of the infant plaintiff’s siblings, to which plaintiffs’ counsel objected.
In May 1999, plaintiffs served their Response for Expert Information, which identified Dr. Leon I. Charash, M.D., a pediatric neurologist, as their expert witness, and annexed his April 6, 1999 report. In that report, Dr. Charash concludes that Jordan Nieves
is behind academically and has been tested as having problems with processing of information and problems with attention deficit disorder. These are all evident on today’s examination. Within reasonable certainty his lead poisoning is causally responsible for these problems and has *641 significantly impacted upon his intelligence and his ability to achieve academically as well as his problems with coordination and speech. Finally, of course, his attention deficit problems are additionally viewed as being related to his plumbism [plumbism is the technical term for lead poisoning]. Of special interest is the fact that he has three older siblings, one of whom entered UCLA having finished high school a year earlier than normal. Another brother has done well at school and is planning to go onto college and to study law if possible. His sixteen year old brother is also doing well. There is some indication that all three of these boys have been variably placed in gifted programs through their school careers.
In support of this motion to compel or preclude, defendants contend that they are entitled to discovery regarding the siblings’ academic performance, because it bears directly on a significant issue raised by plaintiffs. Defendants assert that plaintiffs now intend to use the very evidence they deemed irrelevant and refused to give discovery on two years ago, to support their own claim that Jordan would have gone to college if he had not been exposed to lead paint. According to counsel for defendant City, when the parties appeared for a compliance conference before this Court on June 4, 1999, “plaintiffs’ attorney admitted that plaintiffs would claim at trial that Jordan would have attended college but for his lead poisoning, and intended to offer fact and expert evidence regarding how Jordan’s siblings had done academically.” Defendants argue that if plaintiffs are permitted to offer evidence as to the successful academic performance of Jordan’s brothers, defendants are entitled to the brothers’ school records, so that they will be in a position to refute plaintiffs’ claim and to cross-examine Dr. Charash and any other witnesses testifying as to this issue. Alternatively, defendants argue that if plaintiffs do not wish to provide such discovery, they should be precluded from offering any evidence of the brothers’ academic performance.
In opposition to the motion, plaintiffs assert that the brothers’ school records are not material and relevant to any issue in this action, and that defendants are entitled only to the general factual observations of the infant plaintiff’s mother, who testified at her further deposition as to the specific schools attended by the siblings and the dates of attendance. Plaintiffs assert that Dr. Charash did not examine the siblings’ school records, and the statements in his report are based on the history provided by the infant plaintiff’s father, who made general observations of his children’s academic performance. Alternatively, plaintiffs argue that if the motion to compel is granted, the records should be examined by the Court in camera.
*642 [***] Defendants’ motion and cross-motion to compel disclosure or to preclude are denied except to the limited extent indicated below. It is undisputed that two siblings, Kevin Cleare and David Nieves, have both reached the age of majority, and, as such, only they, nonparties to this action, can provide the authorizations sought by defendants. [***] As neither Kevin Cleare nor David Nieves was served with the order to show cause or the notice of cross-motion, the Court lacks jurisdiction over them for the purposes of the motion and cross-motion. In any event, even if Kevin Cleare and David Nieves had been properly served, the motion and cross-motion to compel disclosure is hereby denied with respect to the academic records of all three siblings, as defendants’ discovery demand is over broad, and the relevance and materiality of the requested information to any claim or defense in the action has not been established. [cc] See Andon v. 302–304 Mott Street Assocs., 94 N.Y.2d 740; Monica W. v. Milevoi, 252 A.D.2d 260, 263 (1st Dept.1999); McGuane v. M.C.A. Inc., 182 A.D.2d 1081 (4th Dept.1992).
Generally, in the reported decisions on disclosure in lead paint cases, defendants seek intelligence quotient (I.Q.) testing, and medical, academic and employment records of parents and siblings, who are usually non-parties, to dispute the issue of causation, theorizing that the requested information may lead to the discovery of admissible evidence relevant to whether the infant plaintiff’s condition is the result of a genetic disorder or some environmental factor other than lead. See e.g. [cc]; Wepy v. Shen, 175 A.D.2d 124 (2nd Dept.1991); *643Baldwin v. Franklin General Hospital, 151 A.D.2d 532 (2d Dept.1989); Van Epps v. County of Albany, 184 Misc.2d 159 (Sup.Ct., Albany Co.); Espinal v. 570 W. 156th Assocs, N.Y.L.J., December 31, 1998, p. 27, col. 2 (Sup.Ct., N.Y.Co.); Washington v. Bayley Seton Hospital, N.Y.L.J., May 12, 1998, p. 25, col. 5 (Sup.Ct., N.Y.Co.); Anderson v. Seigel, 175 Misc.2d 609 (Sup.Ct., Kings Co.), aff’d as modified, 255 A.D.2d 409 (2nd Dept.1998); Alan C. Eagle & Charlotte Biblow, Courts in Lead Cases Allow Discovery of Siblings’ Academic & IQ Records, N.Y.L.J., April 12, 1999, p. 1, col. 1; Hope Viner Sanborn, Blame It On the Bloodline, Discovery of Non–Parties’ Medical and Psychiatric Records is Latest Defense Tactic in Disputing Causation, 85 A.B.A.J. 28 (Sept.1999); Jennifer Wriggins, Genetics, IQ, Determinism, and Torts: The Example of Discovery in Lead Exposure Litigation, 77 B.U.L. Rev. 1025 (1997).
In the decisions reported to date, the First Department, Appellate Division and the Second Department, Appellate Division rely on the identical legal principles in analyzing the issues on a case-by-case basis, but have split on the outcomes reached. The First Department so far has denied such disclosure, Andon v. 302–304 Mott Street Assocs., 257 A.D.2d 37 (1st Dept. 1999), aff’d 94 N.Y.2d 740; [cc] and the Second Department has consistently granted it [cc].
The one opinion by the Court of Appeals rendered recently in Andon v. 302–304 Mott Street Assocs, supra, affirmed the First Department, Appellate Division’s denial of defendants’ motion to compel the plaintiff-mother to submit to an IQ test. Rejecting defendants’ argument that the Appellate Division had created a “blanket prohibition” against discovery of maternal IQ in all lead paint cases, the Court of Appeals found that the Appellate Division had “evaluated defendants’ request in the context of this case and in light of the evidence presented to it. The Appellate Division concluded that the burden of subjecting plaintiff-mother to an IQ test outweighed any relevance her IQ would bear on the issue of causation. The Court noted that the mother’s mental condition is not in dispute and that IQ results, while not confidential, are private. Under these circumstances, we are satisfied that the Appellate Division did not abuse its discretion as a matter of law.” [fn]
*644 Here, neither plaintiffs nor defendants have made a sufficient showing that the siblings’ academic records are relevant or material to the question of whether the infant plaintiff’s cognitive deficits and emotional behavior problems are causally related to his ingestion of lead paint. The discovery dispute over the siblings’ academic records resurfaced when plaintiffs exchanged the report of their expert neurologist, Dr. Charash. This report includes limited second-hand information about the siblings’ successful academic performance, which Dr. Charash attempts to use as further support for his conclusion that the infant plaintiff’s impairments were caused by exposure to lead paint. However, any claim by plaintiffs, that there is a correlation between the infant plaintiff’s impairments and his siblings’ academic performance, is speculative, at best. [cc] [T]he parties have failed to produce an expert affidavit “to demonstrate that the extent to which the adverse effects of lead exposure contributed to the mental and physical condition of the infant plaintiffs cannot be ascertained by reference to objective clinical criteria and expert testimony.” Supra, at 263, 685 N.Y.S.2d 231.
Defendants likewise fail to show how the siblings’ academic information pertains to any disability or developmental impairment experienced by the infant plaintiff, as the record contains no indication that the siblings share any of the infant plaintiff’s impairments. [***] To the contrary, Ms. Cleare testified that the siblings Kevin Cleare and Ishmael Cleare were never evaluated for any special education, speech or learning problems, and that they were both in gifted programs at various times.
Thus, under the circumstances presented, neither proof nor case law provides a basis for concluding that the siblings’ academic records are material and relevant to the issue of causation. However, if at trial, plaintiffs intend to introduce evidence that the siblings attended certain schools or certain programs, plaintiffs shall provide defendants with documentary proof of *645 the siblings’ enrollment at the schools, within 45 days of the date of this order. The court herein makes no determination as to the admissibility of such evidence at trial, which shall be reserved for the trial court.
[Defendant’s motion and cross-motion denied.]
Note 1. What did the defendants’ strategy appear to be with respect to the siblings’ academic records it sought? What alternative strategies might be available in light of this motion’s denial?
Note 2. Would it help the plaintiff on this issue to be able to bring the claim under strict liability rather than negligence? Why or why not?
Note 3. Would you distinguish between a parent and a sibling’s records, with respect to an infant’s exposure to a toxic environment? Is it possible that toxicity in an environment might manifest in ways that affect both parent and infant, and should that be relevant for the question of causation in fact? To what extent is genetic testing a proxy for other factors and what do you think, normatively, about its utility and appropriateness in cases of long-term injury such as this one?
Note 4. Should courts considering the use of siblings’ or parents’ educational records to assess causation take into account the way socioeconomic privilege and race have historically determined (and limited) educational and professional opportunities? Are structural problems like systemic inequity in education beyond the scope of tort law?
Note 5. The court cites numerous cases and articles on the topic of lead paint litigation. In fact the harms posed by lead point are substantial and widespread. Many homes built in the first half of the twentieth century contain lead-based paint, whose use was banned starting in 1978. The lead-based paint may chip, flake or be absorbed into groundwater and dirt and thus be ingested by children in one or many forms. “Studies have linked high lead exposure to decreased fertility, spontaneous abortions, miscarriages, and other pathologies. Studies dating back to 1929 have established especially pernicious consequences of high lead exposure to children including …brain damage and learning disabilities, hyperactivity, and impaired hearing. Such effects are long-term.” Donald E. Lively, The Diminishing Relevance of Rights: Racial Disparities in the Distribution of Lead Exposure Risks, 21 B.C. Envtl. Aff. L. Rev. 309, 314 (1994) (internal citations omitted).
The Center for Disease Control considers any reading blood-level higher than ten mg/dL, to require intervention. The Secretary of Health and Human Services has described lead poisoning as “the number one environmental threat to the health of children in the United States.” Id. at 316. The toxicity and ubiquity of lead-based paint present a significant public health problem. Yet its impact lands disproportionately among people of color. “[S]ignificant disparities in blood-lead levels exist on the basis of ethnicity. Recent studies have confirmed consistent and significant exposure variances correlated to race. When race and income are factored together disparities are even more egregious. An Agency for Toxic Substances and Disease Registry study disclosed that, among families with an annual income under \$6,000, the percentage of black children having blood-lead levels exceeding fifteen mg/dL is sixty-eight percent, contrasted with a level for white children of thirty-six percent. The independent significance of race is further evidenced by results showing that 26.6 percent of all African-American children, as opposed to 7.1 percent of all white children, have blood-lead levels exceeding fifteen mg/dL.” Id. at 317.
White flight and other demographic changes in cities have contributed to this concentration of higher-risk in lower-income communities. Whatever the other causes, the racial disparity in toxic injury is clear. What is the proper role for tort law, if any, in systematically remedying the wrongs caused by common use of lead-based paints? What is the proper role for the legislature, if any?
(613 Fed.Appx. 187)
D.M., a minor (“Plaintiff”), by and through her mother, Ravonnia Ray, appeals *188 the dismissal of her substantive due process claim against the Philadelphia Housing Authority (the “PHA”) for D.M.’s exposure to lead point that occurred while she and Ray lived in Section 8 housing.[7] We will affirm. [***] Sometime before June 1, 2006, the PHA entered into a Housing Assistance Payment (“HAP”) contract with John Cassidy, the owner and landlord of an apartment building in Philadelphia, Pennsylvania (the “Property”), pursuant to the Federal Housing Choice Voucher Program under Section 8 of the United States Housing Act, 42 U.S.C. § 1437, et seq. (the “Section 8 Program”). Cassidy “operated, managed, maintained, [and] controlled” the Property. App. 32A.
On June 1, 2006, Ray entered into a two-year lease agreement for the Property with Cassidy. The PHA approved Ray’s lease for inclusion in the Section 8 Program and, in accordance with the HAP contract, paid Cassidy \$501 per month in subsidies on Ray’s behalf.[8]
On June 1, 2008, Ray renewed her lease, which the PHA again approved for inclusion in the Section 8 Program. The lease renewal included a “Lead–Based Paint Disclosure Addendum” that was binding on Cassidy. In March 2009, the PHA inspected the Property and discovered several violations of the Section 8 Program’s Housing Quality Standards (“HQS”), including uncovered electrical outlets, broken windows, and inoperable range burners. The PHA re-inspected the Property three times in April and May 2009, and reported that Cassidy failed to address the HQS violations. None of the PHA’s inspection reports identified lead paint-related hazards in the Property.
On June 25, 2009, D.M. underwent a blood test that revealed “dangerously elevated levels of lead.” Ray sent D.M.’s blood test results to the Philadelphia Department of Health (the “DOH”), which inspected the Property and found lead-based paint on more than eighty surfaces. The DOH ordered Cassidy to eliminate the lead-based paint, but he failed to do so. D.M. and Ray eventually moved out of the Property.
Plaintiff filed a five-count Complaint against Cassidy and the PHA in connection with D.M.’s lead paint exposure. The District Court granted the PHA’s motion to dismiss under Fed.R.Civ.P. 12(b)(6), holding in pertinent part that Plaintiff’s 42 U.S.C. § 1983 state-created danger claim against the PHA failed to allege that the PHA’s approval of the Property for inclusion in its Section 8 Program was a “fairly direct” cause of D.M.’s injuries. Plaintiff appeals [The District Court dismissed all of Plaintiff’s claims against the PHA, but Plaintiff only appeals its dismissal of her state-created danger claim (Count IV)].
Plaintiff alleges that the PHA violated her due process rights by “exercis[ing its] authority in a manner” that made her “more vulnerable to danger” from lead-based paint in the Property. “[T]he Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary *190 to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998 (1989). A state actor, however, “may be held liable under the ‘state-created danger’ doctrine for creating a danger to an individual in certain circumstances.” Henry v. City of Erie, 728 F.3d 275, 281 (3d Cir.2013) [c]).
A state-created danger claim has four elements:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the conscience;
(3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.
Id. at 282. “To fulfill the ‘fairly direct’ requirement of the state-created danger claim, the plaintiff must plausibly allege that state officials’ actions precipitated or were the catalyst for the harm for which the plaintiff brings suit.” [c] “Precipitate, in turn, means to cause to happen or come to a crisis suddenly, unexpectedly, or too soon.” Id. (internal quotation marks omitted). Thus, for purposes of the fairly direct requirement, it “is insufficient to plead that state officials’ actions took place somewhere along the causal chain that ultimately led to the plaintiff’s harm.” Id. (dismissing § 1983 state-created danger claim for the plaintiffs’ fire-related injuries incurred while living in Section 8 housing because the “defendants’ approval and subsidization of the apartment did not lead ‘fairly directly’ to the fire that claimed the [plaintiffs’] lives”).
Plaintiff failed to plausibly allege that the PHA precipitated, caused, or was the catalyst for her harm. Plaintiff alleges that the PHA “failed to discover” the lead paint in its March 2009 annual inspection, and “rendered plaintiff[ ] more vulnerable to danger than had [it] not acted at all” by: (1) including the Property in the Section 8 program despite numerous HQS violations; (2) making repeated HAP payments to Cassidy despite the HQS violations; and (3) “[r]equiring” that Plaintiff “remain” at the Property despite the “life-threatening violations of HQS” and lead paint hazards. However, Plaintiff does not allege that the PHA introduced lead paint to the Property or was responsible for its presence there.[9]See Henry, 728 F.3d at 285 (finding no “fairly direct” causation where the plaintiffs “did not allege that [municipal] defendants caused the fire,” “increased the apartment’s susceptibility to fire,” or “failed to install a smoke detector and a fire escape”). Nor does Plaintiff allege that the PHA increased the quantity of lead paint in the Property or “did anything to hinder [Cassidy] from bringing [the Property] into compliance” with HQS. Id. at 285. While the PHA subsidized the Property and was allegedly “aware of the dangers that [Plaintiff] faced …, it played no part in their creation, nor did it do anything to *191 render [Plaintiff] any more vulnerable to them.” DeShaney, 489 U.S. at 201. In short, Plaintiff’s allegations fail to show “that [the PHA] created the danger” Plaintiff faced while living in the Property. Henry, 728 F.3d at 286.[10]
For the foregoing reasons, we will affirm.
Note 1. How significant was the fact that the plaintiff signed a lease with a lead discloser addendum, do you think? Have you signed such documents before? Do you read them thoroughly before signing? Have you ever chosen not to go through with signing a document because of discovering a particular term, clause, or disclosure? Regardless of the plaintiff’s awareness of the lead, should it bar her infant daughter’s right of recovery? Why or why not?
Note 2. The state-created danger doctrine provides a cause of action against a state official that is analogous in several respects to negligence claims against private individuals. Reviewing the 4-pronged test set out above, do you see parallels to duty, breach, causation and damages? Do you see how the plaintiff’s case could be said to have failed due to lack of causation, or her inability to prove it?
Note 3. Is the causation requirement fatally flawed in the context of chemical or toxic torts? At least one scholar has called for its elimination. Margaret A. Berger, Eliminating General Causation: Notes Towards A New Theory of Justice and Toxic Torts, 97 Colum. L. Rev. 2117, 2145 (1997) Berger points to asbestos litigation as a paradigmatic example and observes that manufacturers knew about its risks and harms long before they were willing to disclose them to the public. This failure to disseminate information in a responsible manner had several negative consequences. It augmented the number of people who suffered from asbestos exposure, contributed to burdening judicial dockets, and ultimately made causation more challenging to establish as well. Id. at 2143. Berger argues that the problem is structural; businesses are incentivized to behave in this way:
Even when a corporation is well-aware of the risk it is creating, it may gamble that the future costs for compensation and litigation and administrative penalties, offset by insurance and discounted by inflation, will be less than the current cost of adding safety measures, providing information, or paying for more research. Moreover, once the corporation acknowledges the foreseeability of a toxic tort problem, particularly if there are many potential plaintiffs, the price of its stock may drop in anticipation of lawsuits with enormous transaction costs and huge settlement potential. Such a result is, of course, extremely unpalatable, both because corporate managers’ chief obligation is to their current shareholders, and because the increasing use of stock options as a major component of corporate remuneration means that their own compensation may be tied directly to stock performance. The conflict between short-term and long-term consequences puts management into a bind. The uncertainty about the future proof of causation and the time-lag before anything definitive will emerge tip the balance in favor of resolutions that maximize short-term objectives. Id. at 2139-2140.
Berger proposes conditioning liability in negligence on failure to provide substantial information relating to risk. Instead of the plaintiff’s needing to prove causation, defendants would benefit from a kind of safe harbor. Provided they proved that they had complied with a mandatorily established standard of care, potential defendants would be insulated from liability for injuries caused by exposure to their products. Berger proposes two additional defenses, “as a matter of fairness and as an inducement to conduct future research.” The first would allow defendants to prove that certain adverse health reactions could not plausibly arise from exposure to their product; the second would allow a reduction of damages in cases in which defendants prove that “a particular plaintiff’s injury is attributable or partly attributable to another cause, such as smoking.” Id. at 2144-2145.
Does Berger’s idea strike the right balance, in your view? Do her additional defenses effectively create a backdoor requirement of causation for certain plaintiffs, in the language referring to injury’s being “attributable to another cause”? Referring to tort law’s various purposes, what arguments support maintaining causation versus eliminating or modifying it?
Joint and Several Liability
Joint and several liability is a rule followed in many jurisdictions that allows a plaintiff whose harm was caused by more than one tortfeasor to recover the full amount of their compensation from any single one of the individuals or from them as a group. The benefit of the rule, from the plaintiff’s perspective, is that if one of the tortfeasors is immune to liability, judgment proof, unidentified or otherwise unavailable, the plaintiff can recover that party’s portion from other tortfeasors. Likewise, if there is one party with deep pockets (or a relevant insurance policy), the plaintiff stands a better chance of receiving the compensation tort law would ostensibly award them if the plaintiff can proceed directly against the deep-pocketed party rather than seeking compensation from multiple parties. From the defendants’ perspective, joint and several liability can seem quite unfair because it doesn’t necessarily track the amount of the tortfeasor’s fault. Further, one party may be better or worse able to pay a judgment and yet still find they owe such a payment regardless of their lesser capacity to pay it. Despite its name, “joint and several liability” is a rule of allocation as much as a rule of liability. In some cases, it is used to find liability with respect to a tortfeasor whose involvement cannot be as clearly established as others also involved; in other cases, it is used to reallocate or shift from one defendant to another the obligation to compensate the plaintiff for the injuries caused by a group of defendants’ wrongful conduct. Often, the party who satisfies the judgment will seek contributions or indemnification from the other tortfeasors.
“Several liability” means a plaintiff whose harm was caused by more than one tortfeasor can proceed against an individual tortfeasor only for the amount that tortfeasor personally owes under the judgment; the plaintiff may not seek the amount of the full judgment against the group from a single plaintiff in the way joint and several liability permits.
Jurisdictions have arrived at various different rules regarding joint and several liability. It is not uncommon, even in states that retained joint and several liability, to have limited it in certain domains (such as medical malpractice or products liability cases).
(72 Haw. 416)
[By certified question from Smith v. Cutter Biological, Inc., 911 F.2d 374 (9th Cir. 1990)]
[***] Question 3. Would Hawaii allow recovery in this case when the identity of the actual tortfeasor cannot be proven? If Hawaii would allow recovery, what theory (i.e. burden-shifting, enterprise liability, market share or other) would the Hawaii Supreme Court adopt?
[***] The instant problem is that the plaintiff cannot identify which particular defendant caused his injury. Our consideration of the issues is limited to the facts as stated in this record. Procedurally, this case reached the Ninth Circuit Court on a summary judgment motion. The order granting summary judgment did not rule on duty and breach as to the manufacturers; summary judgment was granted on the basis that plaintiff failed to prove causation. The other elements of negligence, i.e., duty, breach and damages, are not at issue here. We note that at least two courts have determined, in cases similar to the instant action, that there was no breach of duty. Jones v. Miles Laboratories, Inc., 887 F.2d 1576 (11th Cir.1989); McKee v. Cutter Laboratories, Inc., 866 F.2d 219 (6th Cir.1989). However, those cases are distinguishable.[11] We do not render an opinion as to whether appellant here will overcome the obstacles met by plaintiffs in those cases; the duty and breach issue here has not only not been decided, it is not before this court on the certified questions. Therefore, we do not deal with the viability of those questions.
*421 Our conclusions deal only with this case—as it comes to us. Therefore, on our reading of the record as it stands, the relevant statutes, and the relevant case law, [***] our answer to question three is “yes,” using the alternative market share theory of recovery, as defined herein.[12]
Appellant is a hemophiliac who has tested HIV-positive with the AIDS virus.[13] He claims that his exposure to the AIDS virus occurred in 1983 or 1984, through injections of the Antihemophilic Factor Concentrate (Factor VIII or AHF). [fn] Factor *422 VIII, as more fully discussed in Part III, is a blood protein which enables the blood to properly coagulate when a hemophiliac suffers a bleeding episode. The original source of the Factor VIII is through blood donors.
The United States Tripler Army Medical Hospital (U.S.) was appellant’s dispensary for Factor VIII during the period of time in which appellant claims to have been infected. According to appellant, appellee manufacturers [fn] furnished to the U.S., the Factor VIII which was used by appellant. Upon appellant’s first being tested for HIV antibodies in 1986, the results were positive.
Appellant filed suit against the four appellee manufacturers of Factor VIII for negligence and strict liability.[14] Defendants moved for summary judgment. Despite acknowledging “that this is a case in which it might be reasonable to apply the principles of market *423 share theory of liability,” the district court granted summary judgment in favor of appellees, holding that appellant failed to prove specifically which manufacturer’s product caused his infection. Appellant took the case to the Ninth Circuit, which certified the questions to this court. [***] *425 IV.
The reason this case is before this court is because the legislature has not fully legislated in the field of torts. When the occasion arises for which there is no specific rule to apply, “we are free to fashion an appropriate rule of law.” Armstrong v. Cione, 69 Haw. 176, 738 P.2d 79 (1987). We must consider what justification there is for deviating from the traditional proof in a negligence case, which, as this court has previously said, includes the factor of causation. See Knodle v. Waikiki Gateway, 69 Haw. 376, 385 (1987).
Appellees take issue with applying theories which were developed, in a large part, for remedies in the field of diethylstilbestrol (DES) drug litigation and the inherent problems associated with those actions.[fn] Their strongest argument against using these theories *427 is the lack of comparison of DES to Factor VIII as a fungible product. DES was produced by more than 200 different companies, some of which are defunct, but the identical formula was used universally in a highly regulated industry. With Factor VIII, there are only a handful of manufacturers, and although the product is fungible insofar as it can be used interchangeably, it does not have the constant quality of DES. The reason is obvious—the donor source of the plasma is not a constant. Therefore, Factor VIII is only harmful if the donor was infected; DES is inherently harmful. As we see that the lack of screening of donors and failure to warn are the breaches alleged, appellee’s argument for not using DES theories is not convincing. We find consideration of the theories discussed in the DES cases to be helpful, as we strive to find an equitable and fair solution to the case at bar.
Our initial reference is to the reasoning of the Supreme Court of California, in Sindell v. Abbott Laboratories, 26 Cal.3d 588, cert. denied, 449 U.S. 912 (1980). We subscribe to the policy reasons propounded in Sindell, and discussed infra, for by-passing the identification requirement.
In addition, we note that tort law is a continually expanding field. As discussed in the American Law Institute Enterprise Responsibility for Personal Injuries—Reporter’s Study (1991) (ALI Study), the field of torts has now expanded to include personal injury actions described in three tiers of actions. I ALI Study 9. These are loosely defined as first, the traditional level which includes accidents where an individual defendant causes harm to a stranger. The second level includes product defects and medical mishaps which include high stakes cases with erratic jury *428 results. Finally, the third tier includes “mass” torts where toxic exposure to many plaintiffs may, many years later, cause cancer or other illness. Id. at 9–10. It is this final tier with which this case deals. It necessitates considering how to fairly deal with the plight of plaintiffs unable to identify, for no fault of their own, the person or entity who should bear the liability for their injury.
No longer can we apply traditional rules of negligence, such as those used in individual and low level negligence to mass tort cases, especially here, where we are dealing with a pharmaceutical industry that dispenses drugs on a wide scale that could cause massive injuries to the public, and where fungibility makes the strict requirements difficult to meet. The problem calls for adopting new rules of causation, for otherwise innocent plaintiffs would be left without a remedy. We concede that there is a difference of opinion regarding the need for this change. For instance, in regard to DES cases, the Illinois Supreme Court refused to adopt the market share theory of liability, in part because “[a]cceptance of market share liability and the concomitant burden placed on the courts and the parties will imprudently bog down the judiciary in an almost futile endeavor.” Smith v. Eli Lilly & Co., 137 Ill.2d 222, 253 (1990). In addition, that court criticized the fairness of results in apportioning damage when reliable information on all manufacturers might not be available. Id. Part of that reasoning, of course, is based on the fact that the potential number of defendants in DES cases extends into the hundreds. Id. at 254, 148 Ill. Dec. at 36. The numbers here are not nearly so large, and therefore, the harshness of the result, that is, burdening the innocent plaintiff without a remedy, to us seems totally unfair and out of step with current efforts to allow recovery when the proper case is brought.
The policies in Sindell and Hall convince us that it is appropriate to consider a negligence action where the actual tortfeasor cannot be proven. Therefore, although inherent in the proof of *429 negligence is proof of causation, we believe that this state is amenable to consideration of group theories of liability.
[***] There are several theories which have evolved in the last several years. The genesis of these theories comes from Sindell v. Abbott Laboratories, 26 Cal.3d 588 (1980). The theories are generally described as: alternative liability, concert of action, enterprise or industry-wide liability, and market share liability. In the evolution of the DES cases, the market share theory has undergone various modifications, to suit the policies and needs of the particular courts.
A. Alternative Liability
This theory is epitomized in the well-known case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). In that case, two hunters negligently shot in the direction of the plaintiff; one of them injured him. Upon deciding that both were wrongdoers and negligent to the plaintiff, the court felt that it was unfair to leave an impossible burden of proof on the plaintiff, and shifted that burden to the defendants to absolve themselves. The rule of Summers v. Tice is included in the Restatement (Second) of Torts (Restatement) as follows:
Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.
*430Restatement § 433B (3) (1965). The comments in the Restatement also suggest that this theory may appropriately be subject to modification at a later time. Id., comment h.
Two presumptions follow this theory. First, the plaintiff must prove that “all defendants acted tortiously and that the harm resulted from the conduct of one of them.” Sindell, 163 Cal.Rptr. at 139 n. 16, citing Restatement § 433B, comment g. This has been interpreted to mean that the tortious actions must occur simultaneously. Starling v. Seaboard Coast Line R.R., 533 F. Supp. 183, 191 (S.D.Ga.1982) (court considering theories in asbestos related injury). However, another court, in applying the theory in a Factor VIII case, disagreed. Poole v. Alpha Therapeutic, 696 F. Supp. 351, 356 (N.D. Ill.1988).
Second, all responsible parties must be joined. Sindell, 163 Cal.Rptr. at 139. Typically, this theory is useful in multiple car crash cases, cases of pollution by several defendants, and injury during medical operations where the plaintiff is sedated. Agent Orange Litigation, 597 F. Supp. 740 (E.D.N.Y.1984). Additionally, however, joint and several liability is inherent in the application of alternative liability.
We choose not to alter the theory to the point that it would be useful on the facts here. Several problems arise which lead us to this decision. First, we look at the various theories of negligence which appellant suggested. One argument is that there was a duty to properly select and screen donors; other arguments follow the same line of reasoning—that the manufacturers should have implemented verified surrogate laboratory tests, or that they should have ceased using plasma from donor centers where the population groups had significant numbers of AIDS incidents. It is obvious that each manufacturer acted at various different times, so the simultaneous requirement of a strict application of the theory *431 fails. Also, although appellant has alleged that manufacturers are “most” of the possible tortfeasors, and the manufacturers have not clearly rebutted that argument, it is still subject to factual proof and findings. Finally, we do not believe that joint and several liability is appropriate under the circumstances of this case. Therefore, this theory cannot be applied here, unless modified, and we choose not to do so based on these facts, as other theories, discussed infra, have already been appropriately modified.
B. Concert of Action
This theory derives from the criminal law concept of aiding and abetting. Starling, 533 F. Supp. at 187. See Restatement § 876. Concert of action is usually applied with a small number of defendants, a single plaintiff, and a short time period between the tort and its discovery. The defendants’ joint plan is the basis of the cause of action, and most often the plaintiff is able to identify which defendant actually caused the injury. Abel v. Eli Lilly and Co., 418 Mich. 311, 338, cert. denied sub nom, E.R. Squibb & Sons, Inc. v. Abel, 469 U.S. 833 (1984).[15] The court stated that the identification did not preclude use of the theory. Id. According to the court, the only burden of plaintiffs to withstand a summary judgment motion, for failure to state a cause of action, was to “allege that the defendants were jointly engaged in tortious activity as a result of which the plaintiff was harmed.” Id. Inherent in this theory is the application of joint and several liability. As the Michigan court also stated, “[i]f plaintiffs can establish that all defendants acted tortiously pursuant to a common design, they will all be held liable for the entire result.” Id.*432 Even if we thought this theory appropriate in a Factor VIII case, again, we do not wish to burden defendants with joint and several liability. Therefore, we choose not to allow this theory to be applied to this case.
C. Enterprise or Industry–Wide Liability
The essence of the enterprise theory is that there is joint control of the risk throughout a particular industry. The theory originated in the blasting caps case, Hall v. E.I. DuPont de Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y.1972). The basis of the case was that there was an industry-wide standard concerning safety; the safety planning was delegated to a central group; and there was cooperation in the manufacture and design. Policy dictates that when all of those facts occur, the entire enterprise is liable. Therefore, the industry-wide standard became the cause of the plaintiff’s injury.
The main premise against this theory is stated in one of the DES cases:
The underlying rationale in all of the decisions rejecting enterprise liability is that the law of torts does not include a theory of liability which would allow an entire industry to be held strictly liable for an injury caused by a defective product. Enterprise liability as described in Hall is predicated upon industry-wide cooperation of a much greater degree than that alleged by the plaintiff.
Martin v. Abbott Laboratories, 102 Wash.2d 581, 600 (1984). That premise is directly disputable by reading Hall, as the court states:
There is thus no support for defendants’ argument that to establish joint control of risk, plaintiffs must demonstrate that the explosives industry was “rigidly *433 controlled” through the trade association with regard to blasting cap design, … and that the object of such control was some particularly reprehensible breach of duty. The variety of business and property relationships in which joint control of risk has been found demonstrates the flexibility of the doctrine. Liability is not limited to particular formal modes of cooperation, nor to illegal or grossly negligent activities.
Hall v. E.I. DuPont de Nemours, 345 F. Supp. at 374.
However, another court has aptly stated the plaintiff’s burden of proof with a showing:
(1) that the product was manufactured by one of a small number of defendants in an industry; (2) the defendants had a joint capacity to reduce the risks of the product; and (3) each of them failed to take steps to reduce the risk at a substantially concurrent time by delegating their responsibility to an association.
Conley v. Boyle Drug Co., 477 So.2d 600, 604 (Fla.App.1985), rev’d on other grounds, 570 So.2d 275 (Fla.1990) (specifically approving the analysis of the lower court as to alternative, concert of action, enterprise, and Sindell market share theories of liability).
Based on the steps as set forth in Conley, the enterprise theory appears to be somewhat persuasive a method of approaching this case. We note that the pleadings do not raise the allegation that the defendants had the joint capacity to reduce the risk. Appellant does not even argue this theory in his opening brief; however, the facts alleged in the brief lend credibility to this type of argument. Were it not that we are again faced with the inherent application of joint liability, and the fact in addition, that we find one aspect of the Hall scenario convincingly distinguishable, we might endorse this theory in answer to the certified question.
*434 First, we mention the distinguishable characteristic of Hall, which is convincingly pointed out to us by appellees and the court in Sindell v. Abbott Laboratories, 26 Cal.3d 588 (1980). The court there noted that “the drug industry is closely regulated by the Food and Drug Administration, … [t]o a considerable degree, therefore, the standards followed by drug manufacturers are suggested or compelled by the government.” Id., 163 Cal.Rptr. at 143. With the government in control of the parties’ actions, it is unfair to hold them liable for following the standards. Appellees’ arguments convince us that such reasoning is appropriate here, too, to eliminate this theory on these facts.
We further digress to expound on our reluctance to adopt joint liability in the Factor VIII cases. First, as we are writing a new chapter in tort law in the State of Hawaii, we endeavor to set principles which we think would be adopted by our legislature. We note that by statute, joint and several liability in tort will be abolished to some extent as of October 1991. HRS § 663–10.9 (Supp.1990). As to what is still allowed, damages are still limited by the doctrine of modified comparative negligence. HRS § 663–31 (1985). Therefore, we believe the legislature has seen a need to balance the equities in this evolving field.
In addition, as noted by many of the opinions in DES cases, there is an inherent unfairness in holding one or two parties responsible in full for the actions of tortfeasors who may escape liability for some reason. It seems at least a fair trade-off, where the plaintiff cannot identify which party actually caused his injuries, to at least allow the defendants to limit their share of liability to their relative proportion of the market. Therefore, we move on to discuss, and endorse, market share liability, with modifications.
D. Market Share Liability & Its Progeny
This theory has been most susceptible to variations and refinements, especially in DES litigation, but also in line with the *435 law of the state in which it has been applied. It was first defined in Sindell, 26 Cal.3d 588 (1980). The policies there stated included: 1. the reasoning of Summers v. Tice, 33 Cal.2d 80 (1948), that between innocent plaintiffs and negligent defendants, the negligent party should be held liable; 2. advances in science and the creation of fungible goods whose source cannot be traced; 3. the financial ability of defendants to bear the costs; and 4. the fact that manufacturers are in the better position to prevent defective products from reaching the consumer market. Sindell, 163 Cal.Rptr. at 144. We expand on those policies to acknowledge that defendants may bear the loss by passing that cost of doing business on to consumers. In addition, we feel that equity and fairness calls for using the market share approach. Another justification is that where many drugs can be lethal, and it is difficult for the consumer to identify the source of the product, the burden should shift. The concept itself meets the objectives of tort law, both by providing plaintiffs a remedy, but also by deterring defendants from negligent acts.
After stating its policies, the Sindell court stated:
[W]e hold it to be reasonable in the present context to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff by the percentage which the DES sold by each of them for the purpose of preventing miscarriage bears to the entire production of the drug sold by all for that purpose.
Id. at 145. Included in the definition was a requirement that a substantial percentage of the market must be joined as defendants, and that an exculpatory clause be included. Id. We feel that this basic theory, with modifications and distinctions to suit the policies of this state, discussed infra, provides an appropriate modem for appellant’s case. The relevant considerations *436 are: 1. defining the market, 2. identification and joint and several liability, and finally 3. exculpatory allowances.
1. Defining the Market
Criticisms of Sindell include the need for a definition of “substantial share” of the market, in order not to distort the share of liability. Martin v. Abbott Laboratories, 102 Wash.2d 581, 602 (1984). The Martin court adopted a narrow definition of the market, that being the plaintiff’s particular geographic market. Id. at 605. The justification is that the narrow market share purports to make a “particular defendant’s potential liability … proportional to the probability that it caused plaintiff’s injury.” Id. This policy was later reaffirmed by the same court, with acknowledgement that lacking evidence of the specific market, then “other figures, … such as within the county, state, or even in the country may in certain circumstances be introduced.” George v. Parke–Davis, 107 Wash.2d 584, 592 (1987). The Florida Supreme Court, in Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990), agreed with the Washington court that the relevant market should be “as narrowly defined as the evidence in a given case allows.” Id. at 284. The court found this manner of definition to be consistent with the Martin theory of allowing a defendant to exculpate itself by showing no participation in that market. It does meet the goal of market-share liability to impose liability only on those companies who could have manufactured the injurious product.
Another court has specifically adopted the national market as the best option. Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487, 511 (1989). Several premises supported this holding: 1. it was difficult to reliably determine any market smaller than the national one, 2. it avoided the need to establish separate *437 matrices as to market share, and 3. it avoided an unfair burden on litigants. Id. at 511. The national market was intended to “apportion liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large.” Id. at 512. This provides equitable relief for plaintiffs, and a rational distribution of responsibility among defendants. It also avoids a windfall escape to the producer who happens to sell only to certain distributors. The culpability, therefore, is for marketing the product.
As we are faced here with a minimal number of manufacturers of the product, we believe that culpability for marketing the product is a better policy. Should the issue arise under different circumstances at some point, we may find it appropriate to narrow the definition. For this case, however, we believe the national market is the more equitable consideration.
2. Identification and Joint and Several Liability
Courts differ on their requirements of an assertive effort on the part of plaintiffs to identify the actual manufacturer of the specific product which caused the harm. We take another approach to this concern. Whereas manufacturers here argue that appellant should have kept a log of which manufacturer’s product he was using, we fail to see how such failure affects the viability of appellant’s suit in view of our adoption of the theory of market share liability.
Plaintiffs should use due diligence to join all manufacturers, but failure to do so is not a defense. Failure to do so may affect the percentage of recovery, discussed infra. However, manufacturers are permitted to implead other manufacturers. But, in this case, all manufacturers are joined, so the issue is not before us. However, we note in passing that the conditions of the Martin court, which would allow plaintiffs to initiate suit against only one defendant, *438 and of Sindell, which would require plaintiffs to join a “substantial” number of defendants, are immaterial as long as plaintiffs realize their recovery will depend on joining as many manufacturers as they can; plaintiffs will endeavor to join all manufacturers.
We have already discussed our feeling that this action should not be subject to joint liability. We simply reiterate what other courts have said on this point, that “‘[t]he cornerstone of market share alternate liability is that if a defendant can establish its actual market share, it will not be liable under any circumstances for more than that percentage of the plaintiff’s total injuries.’ ” Conley, 570 So.2d at 285, quoting George v. Parke–Davis, 107 Wash.2d at 595. Therefore, we advocate several liability.
We define the rules of distribution as to market share for this case as was done in Martin, that is:
The defendants that are unable to exculpate themselves from potential liability are designated members of the plaintiffs’ … market[ ]…. These defendants are initially presumed to have equal shares of the market and are liable for only the percentage of plaintiff’s judgment that represents their presumptive share of the market. These defendants are entitled to rebut this presumption and thereby reduce their potential liability by establishing their respective market share of [Factor VIII] in the … market.
Martin, 102 Wash.2d 581, 605 (1984). As to several liability, we adopt the theory that a particular defendant is only liable for its market share. Defendants failing to establish their proportionate share of the market will be liable for the difference in the judgment to 100 percent of the market. However, should plaintiff fail to name all members of the market, the plaintiff will not recover 100 percent of the judgment if the named defendants prove an aggregate share of less than 100 percent.
3. Exculpatory Allowances
As a result of our determination that a national market is appropriate, as long as defendant is actually one of the producers of Factor VIII, there is little to justify exculpation of defendant. However, the exception would occur where defendant could prove that it had no product on the market at the time of the injury. As far as the defendants in this suit are concerned, it appears that none of them would be able to escape liability on that basis.[16]
In conclusion, we will recognize the basic market share theory of multi-tortfeasor liability, as defined herein. Acknowledging that this could open a Pandora’s box of questions, we believe that we have defined at least a starting point as to appropriately responding to the certified questions. However, as we are deciding issues in a virtual factual vacuum, we recognize that our opinion is limited to the facts presented to us, and we reserve the right to modify or amend our answers to these questions.
MOON, Justice, concurring and dissenting.
[***][T]he majority’s departure from well established tort law in Hawaii is based on a factual record that prevents plaintiff from establishing the existence of a legal duty and breach of *441 that duty, based on a provable standard of care, which is essential to the application of the market share theory of liability. [***]
Initially, it is important to note that until today, negligence liability under Hawaii law required a plaintiff to prove by a preponderance of the evidence four essential elements: 1) the existence of a legal duty; 2) breach of that duty; 3) causation; and 4) injury. Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376 (1987). However, the market share liability theory imposes liability without requiring identification of the wrongdoers who caused plaintiff’s harm and shifts the burden to defendants to prove that they did not cause the plaintiff’s injury. Eliminating causation as an element of proof and shifting the burden to the defendant is [***] a radical departure from traditional negligence law. [***]
In 1988, the American Medical Association reported that “in the pharmaceutical industry, meaningful product liability insurance has all but disappeared.” A.M.A., Report of the Board of Trustees on Impact of Product Liability on the Development of New Medical Technologies 2 (1988). This lack of insurance is largely due to the development of non-identification theories of liability.[17]
*446 The application of the market share liability theory may result in liability being placed on defendants bearing no responsibility for the defective product and may create unpredictable costs to innocent parties [***] The primary authority cited by the majority in support of its position is the DES case of Sindell v. Abbott Laboratories, 26 Cal.3d 588, cert. denied, 449 U.S. 912 (1980), which was the first to judicially promulgate the market share liability theory. In Sindell, the “DES daughter” plaintiff sought to recover damages for injuries resulting from cancer caused by DES, a miscarriage preventative. The mother ingested the drug over twenty years prior to the cause of action being filed. The trial court dismissed the action on the ground that plaintiff had conceded that the specific manufacturers of the drug could not be identified.
On appeal, the Supreme Court of California adopted the market share liability theory, which relieved plaintiff of the burden of identifying which of over 200 companies manufactured the DES drug ingested by her mother. The court, in reaching this *447 conclusion, reasoned: “In our contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer.” Sindell, 26 Cal.3d at 610. The court determined that two essential factual elements, fungibility and the inability to identify specific producers, must be present in order for the market share liability theory to be appropriate. Both elements are glaringly absent in the Factor VIII case before us. [***]
The primary authority cited by the majority in support of its position is the DES case of Sindell v. Abbott Laboratories, 26 Cal.3d 588, cert. denied, 449 U.S. 912 (1980), which was the first to judicially promulgate the market share liability theory. In Sindell, the “DES daughter” plaintiff sought to recover damages for injuries resulting from cancer caused by DES, a miscarriage preventative. The mother ingested the drug over twenty years prior to the cause of action being filed. The trial court dismissed the action on the ground that plaintiff had conceded that the specific manufacturers of the drug could not be identified.
On appeal, the Supreme Court of California adopted the market share liability theory, which relieved plaintiff of the burden of identifying which of over 200 companies manufactured the DES drug ingested by her mother. The court, in reaching this *447 conclusion, reasoned: “In our contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer.” Sindell, 26 Cal.3d at 610. The court determined that two essential factual elements, fungibility and the inability to identify specific producers, must be present in order for the market share liability theory to be appropriate. Both elements are glaringly absent in the Factor VIII case before us. [***]
IV. Judicial Restraint
The majority’s primary reason for adopting the market share liability theory, in a form that is even more expansive than in Sindell, is that “the harshness of the result, that is, burdening the innocent plaintiff without a remedy, to us seems totally unfair and out of step with current efforts to allow recovery when the proper case is brought.”
I, too, sympathize with Smith’s tragic situation. However, this court has been faced with similar situations and has applied judicial restraint by declining to expand established principles of the common law merely to provide a remedial measure. [***]
I submit that this court is again confronted with an issue which it is ill-equipped to rule upon. There are too many unanswered questions of social, economic, and legal import, which only the legislature, with its investigative powers and procedures, can determine. Deference to the legislature is especially appropriate due to the legislature’s enactment of the blood shield statute and the impact that any non-identification theory such as market share may have on the blood products industry.
Furthermore, I disagree with the majority’s statement that Hawaii would be “out of step with current efforts to allow recovery when the proper case is brought.” As defendant Cutter Biological notes in its answering brief, since the initial adoption of market share liability in Sindell, the highest courts of only four other states have adopted that theory. Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990) (DES case); Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, cert. denied, 493 U.S. 944, (1989) (DES case); Collins v. Eli Lilly & Co., 116 Wis.2d 166, cert. denied, 469 U.S. 826 (1984) (DES case); Martin v. Abbott Laboratories, 102 Wash.2d 581 (1984) (DES case).
Four state supreme courts have rejected the market share theory of liability doctrine: Smith v. Eli Lilly & Co., 137 Ill.2d 222 (1990) (DES case); Shackil v. Lederle Laboratories, 116 N.J. 155 (1989) (DPT vaccine case); Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986) (DES case); and Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo.1984) (DES case).
*456 A number of federal courts have also rejected the doctrine: Tidler v. Eli Lilly & Co., 851 F.2d 418 (D.C.Cir.1988) (DES case); Morton v. Abbott Laboratories, 538 F.Supp. 593 (M.D.Fla.1982) (DES case); Mizell v. Eli Lilly & Co., 526 F.Supp. 589 (D.S.C.1981) (DES case); Ryan v. Eli Lilly Co., 514 F.Supp. 1004 (D.S.C.1981) (DES case). An empirical study of this issue concluded that “[i]n the last several years decisions in a number of jurisdictions clearly indicate that courts are in no mood to extend that expansionary doctrine [market share liability] any further.” Henderson & Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37 U.C.L.A. L. Rev. 479, 492 (1990) (emphasis added).
The Iowa Supreme Court in Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986), aptly states some of the basic reasons why non-identification theories, which eliminate causation as an element of plaintiff’s proof, should not be adopted by the courts:
We acknowledge that plaintiff in a DES case with an unidentified product manufacturer presents an appealing claim for relief. Endeavoring to provide relief, courts have developed theories which in one way or another provided plaintiffs recovery of loss by a kind of court-constructed insurance plan. The result is that manufacturers are required to pay or contribute to payment for injuries which their product may not have caused.
This may or may not be a desirable result. We believe, however, that awarding damages to an admitted innocent party by means of a court-constructed device that places liability on manufacturers who were not proved to have caused the injury involves social engineering more appropriately within the legislative domain. In order to reach such a determination, three broad policy questions must be answered. One is whether the burden *457 of damages for these injuries should be transferred in a constitutional manner to the industry irrespective of an individual manufacturer’s connection with the particular injury. If so, the second question relates to the principles and procedures by which the burden would be transferred. Finally, how do we ascertain the extent of damages to be assessed against each manufacturer? … Plaintiffs request that we make a substantial departure from our fundamental negligence requirement of proving causation, without previous warning or guidelines. The imposition of liability upon a manufacturer for harm that it may not have caused is the very legal legerdemain, at least by our long held traditional standards, that we believe the courts should avoid unless prior warnings remain unheeded. It is an act more closely identified as a function assigned to the legislature under its power to enact laws.
Mulcahy v. Eli Lilly Co., 386 N.W.2d 67, 75–77 (Iowa 1986).
Leaving plaintiff without a remedy is a harsh result, however, this is not the proper case upon which this court should innovate and radically change the existing law. The application of market share liability in the context of this case would essentially make each defendant manufacturer an insurer of any infected individual who “might” or “could” have used its Factor VIII concentrate. [***] [S]uch a broad imposition of liability is wholly unjustified, unfair, and likely to discourage the future development and sale of blood therapies. The decision of whether such an expansive theory *458 of liability should apply as against manufacturers of blood products is best left to the legislature, which is equipped to address the “Pandora’s box” of questions that the majority acknowledges results by today’s decision.
I submit that the majority is mistaken if its characterization of the record as a “virtual factual vacuum” means that the facts are insufficient, and thus a trial is necessary to develop additional facts in this case. Additional facts will not change the inevitable—that is, Smith’s inability to establish when and how he was infected by the HIV virus, and the fact that information regarding AIDS and the techniques to detect the HIV virus were just being developed during the pertinent period, make it impossible for Smith to prove a standard of care. The majority’s decision now allows all of the parties to proceed to trial, which undoubtedly will result in substantial costs and attorneys’ fees being incurred. However, the expenditure of time and money will be for naught.
Note 1. What is the significance of the court’s declining to adopt alternate liability, enterprise or industry-wide liability and joint and several liability but allowing market share liability? What is the likely effect of that scope? How does the court delimit the scope of market share liability further?
Note 2. The majority opines that “tort law is a continually expanding field.” Yet in judicial opinions declining to expand the scope of tort law, you have likely seen statements to the contrary, or arguments against tort law’s expansion. What justification does the court offer here for the need for such expansion in the case at bar?
Note 3. What are the dissent’s arguments against the application of market share liability? Which opinion is more persuasive to you and why?
Note 4. In a footnote, the majority opinion distinguishes prior case law that found it was a breach of duty that defendant had not “use[d] “’high risk’ questioning as to the specifics of whether the donor was a homosexual [c]. …the donor, who was clearly identified, would not and did not admit that he was a member of one of the ‘high risk’ groups for AIDS.” At the height of the AIDS epidemic, fears of contagion and misunderstanding about the disease were rampant.
As the COVID-19 pandemic gripped the world in 2020 and 2021, many of the same fears and controversies about infectiousness and contagion vectors arose. A recent essay shared the perspective of one man who drew parallels between the two eras: “From the number of complaints I’m hearing of pandemic fatigue and the widespread resistance to simple precautionary measures such as wearing a mask at the grocery store, it’s clear to me that many people don’t fully appreciate what the gay community has been dealing with for the past 40 years and don’t understand how we survived the AIDS epidemic.”
It was almost certainly more difficult socially to come out as bisexual, gay or transgender in the 1980s and AIDS ramped up the challenges by layering on irrational fears of contagion. What do you think of tort cases considering whether a party breached its duty in some way by not asking about a plaintiff’s sexual orientation? Was it understandable—as a public health matter—to hold a party liable for not inquiring if evidence proved that sexual orientation was correlated with higher risk of AIDS? Or should a sense of privacy, propriety, dignity, or some combination of those have been permitted to shield providers and patients from a legal obligation to ask?
Would your answer change if it turned out that the reason for providers not wanting to broach the topic with patients carried legal consequences for patients, such as loss of a job or cancellation of medical insurance, that providers wished to avoid? How about if providers simply wished to avoid asking because they wanted to provide safe (and often free) medical care in the community without patients’ fearing that their sexual orientation would be outed? What if evidence suggested that patients wouldn’t seek testing if they knew they had to reveal their sexual orientation? What is tort law’s responsibility, if any, to take such factors into account when considering what is reasonable under the circumstances?
Expand On Your Understanding – Causation Hypotheticals
Review the following hypotheticals. Turn each card to reveal the answer.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. As noted, plaintiffs’ first specification does not allege negligence in the design of the refuse transfer station. Instead, the specification charges negligence in “failing to maintain” a facility with barriers to protect patrons from falling over the edge of the platform. We agree with the county, however, that the gravamen of that allegation is that the county’s alleged failure to design the platform in a way that included protective barriers (other than the railroad tie that prevented vehicles form backing up too far) made the platform unreasonably dangerous.
2. In England the requirement of fault in cases of direct injury to plaintiffs by defendants is generally dated to Baron Bramwell’s opinion in Holmes v. Mather, 10 Exch. 261 (1875) [c]. In many of the states of the United States the requirement was imposed earlier. The opinion most frequently cited is that of Chief Justice Lemuel Shaw in Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850) [c].
3. The requirement of causation was a well-recognized and essential element of the plaintiff's case in chief in 17th century trespass actions such as Weaver v. Ward, Hobart 134, 80 Eng. Rep. 28 (K.B.1617) [c] and Gibbons v. Pepper, 1 Ray. 38, 91 Eng. Rep. 922 (K.B.1695) [c]. The action in trespass, and especially trespass vi et armis (along with the later action of trespass on the case), is generally regarded as the ancestor of the modern personal injury suit.
4. See Michie v. Great Lakes Steel Div., 495 F.2d 213 (6th Cir.1974).
5. In Daubert, the Supreme Court rejected the traditional Frye rule (which had required that a scientific theory be generally accepted by the scientific community to be admissible, see Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)), concluding that adherence to Frye’s “rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules [of Evidence].” Daubert, 509 U.S. at 588 (citations omitted).
6. In non-negligence cases, the same requirement applies as to those non-faulty acts or activities (e.g., product defects, extra-hazardous behavior) on whose existence the potential liability is grounded. In the last fifty years the strictness of the requirement that the plaintiff show that without defendant’s act or omission the accident would not have occurred has been mitigated in several types of cases. For instance, where two defendants are both clearly at fault, where the plaintiff has little or no information as to which one's negligence was responsible for the injury, and especially where the defendants may have better access to such information, the modern trend is to place the burden on the defendants to disprove causation. See, e.g., Summers v. Tice, 33 Cal.2d 80 (1948); see also, Modave v. Long Island Jewish Med. Ctr., 501 F.2d 1065 (2d Cir. 1974) (Friendly, J.) (suggesting that, under New York law, a plaintiff may not need to prove which of two culpable defendants actually caused the plaintiff’s injury even when the defendants were probably no more able to show what happened than was the plaintiff). Another important example of this easing trend has been the acceptance of statistical or market share evidence as a means of assigning at least part of a loss to various defendants whose conduct justified liability but who could not be identified, more probably than not, as having been but for causes of it. See, e.g., Sindell v. Abbott Labs., 26 Cal.3d 588 (1980); Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989). Many courts long ago abandoned the requirement of but for cause in situations where, since the negligence of any one of several defendants was sufficient to cause the harm, the negligence of none was its necessary cause. See, e.g., Corey v. Havener, 182 Mass. 250 (1902). Indeed, some commentators attribute the acceptance of the “substantial factor” terminology, such as that used in Connecticut, to the problems a strict but for test would cause in this latter type of case. See, e.g., W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 267–68 (5th ed.1984) [hereinafter Prosser]. While none of these easings in the requirement of proof of but for cause applies directly to the case before us, it is not unlikely that developments that are relevant to the instant case, see infra section II(B)(4), derived from a desire to achieve analogous goals through tort law. See generally Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. L. Rev. 69 (1975).
7. Although Ray is listed as an Appellant in the Opening Brief, it appears that she is involved in this case only to the extent that D.M.’s claims are brought by and through Ray. We will therefore refer to the appealing party in the singular.
8. Under the Section 8 Program, tenants pay rent “based on their income and ability to pay. The PHA then makes ‘housing assistance payments’ to private landlords” that equals “the difference between the [tenant’s] contribution and a ‘contract rent’ agreed upon by the landlord and the PHA.” Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 161 (3d Cir. 2002).
9. Plaintiff concedes that the lead paint was present when Ray and D.M. moved into the Property.
10. Plaintiff’s attempts to distinguish Henry are unpersuasive. In Henry, the plaintiffs alleged that Erie, Pennsylvania’s housing authority caused their injury by allowing them to reside in a location without smoke detectors or fire alarms. 728 F.3d at 285. In this case, Plaintiff alleges that the PHA wrongly permitted Ray and D.M. to reside in a location in which lead paint was present. Henry rejected this as a basis for liability because the Erie housing authority's actions were not the fairly direct cause of the injury. The cause of the Henry injury was the fire and the alleged cause of D.M.'s injury was the lead paint placed there by the landlord. Thus, Henry is indistinguishable.
11. The first distinction is that jurisdictionally, those courts’ decisions are not controlling here. Second, in Jones, the negligence was based on the failure of the defendant to use “high risk” questioning as to the specifics of whether the donor was a homosexual. Jones, 887 F.2d at 1580. The decision was based solely on the fact that the donor, who was clearly identified, would not and did not admit that he was a member of one of the “high risk” groups for AIDS. Id. at 1581. In McKee, the finding of no negligence was based on the fact that at the time of the decedent’s being diagnosed with AIDS, in October 1983, industry custom did not require the processes developed later to inactivate the AIDS virus. McKee, 866 F.2d at 224. A final distinction is that in both cases, the specific manufacturer was named. On the other hand, at least one court has approved application of the market share theory of liability on facts similar to those herein. Ray v. Cutter Laboratories, 754 F.Supp. 193 (M.D. Fla. 1991). Ray was also considered at the summary judgment stage, but the federal court adopted the market share theory as that was the only multi-tortfeasor theory of liability then approved by the state supreme court. Id. at 195.
12. Defendants include not only the manufacturers—Armour Pharmaceutical Corporation, Cutter Biological, Inc., Alpha Therapeutics Corporation, and Travenol Laboratories, Inc. (now Baxter Laboratories)—but also the United States of America (U.S.). The allegations against the U.S. are based on negligence and failure to warn. Although designated as an appellee, the U.S. has not filed an answering brief. We note that the claims against the U.S. are not directly pertinent to the certified questions before this court.
13. AIDS is an infectious disease caused by a virus, as are herpes, smallpox, yellow fever, and hepatitis. R. Jarvis, M. Closen, D. Hermann, A. Leonard, AIDS LAW in a Nutshell 1 (West Publishing 1990) (hereinafter AIDS Nutshell). The disease was uniquely recognized in June and July, 1981. Id. at 5. There are several modes of infection: 1. sexual intercourse, 2. sharing infected syringes, 3. receipt of human tissue, blood, etc., and 4. child birth or breast feeding. Id. at 7. Once infected, a victim will not test positive for HIV during a “window” period, which lasts between six weeks and six months—although some researchers say the window period may be several years. Id. at 14. Although testing positive, a person may continue to be asymptomatic for seven to ten years. Id.
14. Appellant, at one point, attempted to convert this suit to a class action, but failed to follow through on the opportunity. Our analysis of the theories of liability might differ, were this a class action.
15. The Michigan court allowed this theory to be applied in a DES case, which had reached the court on summary judgment, where it appeared the plaintiff could identify the tortfeasor. Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164, cert denied, 469 U.S. 833, 105 S. Ct. 123, 83 L. Ed. 2d 65 (1984).
16. The precursor of the DES cases is Sindell v. Abbott Laboratories, 26 Cal.3d 588 cert. denied, 449 U.S. 912 (1980). Sindell arose when demurrers were sustained as to several manufacturers of DES, on the basis that plaintiff could not identify whose product caused the injury. Id., 163 Cal.Rptr. at 134, n. 3. The Sindell court considered the four main theories. Michigan approved both the concert of action and alternate liability theories in a DES case up on summary judgment. Abel v. Eli Lilly and Co., 418 Mich. 311 (1984). In the same year, the Washington Supreme Court addressed the issue on appeal from summary judgment, in Martin v. Abbott Laboratories, 102 Wash.2d 581 (1984). The Martin court reanalyzed the theories enumerated in Sindell, and then created the market-share alternate liability. A federal court in Illinois tentatively allowed the alternate liability theory in a DES case, acknowledging that the Illinois Supreme Court had not yet addressed the issue. Poole v. Alpha Therapeutic Corp., 696 F.Supp. 351 (N.D.Ill.1988). Later, the Illinois Supreme Court did address a DES case, but only as to the market share theory of liability—which it refused to adopt. Smith v. Eli Lilly & Co., 137 Ill.2d 222 (1990). In New York, as in Florida, state courts adopted market share theories as viable in DES cases. Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487 (1989) (on certified questions, and adopting the national market as the base market); Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990) (adopting Washington's version of market share liability, and summarily disposing of the other theories).
17. See United States Department of Justice, Report of the Tort Policy Working Group on the Causes, Extent and Policy Implication of the Current Crisis in Insurance Availability and Affordability 33–35 (Washington, D.C. Government Printing Office, Feb. 1986). | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/03%3A_Negligence/3.06%3A_Negligence-_Causation.txt |
In theory, proximate can be summed up simply: “The term “proximate cause” is shorthand for a concept: Injuries have countless causes, and not all should give rise to legal liability.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 692 (2011). In practice, scholars, students and lawyers have found it a challenge: “‘Proximate cause remains a tangle and a jungle, a palace of mirrors and a maze … [It] covers a multitude of sins … [and] is a complex term of highly uncertain meaning under which other rules, doctrines and reasons lie buried.’ ” William L. Prosser, Proximate Cause in California. 38 Cal. L. Rev. 369, 375 (1950).
Without adopting an outlook quite as gloomy as the late Dean Prosser’s, it is fair to say that proximate cause can be a confusing area of tort law. The first complexity is in the interplay with duty as you have seen already in Palsgraf. The second issue is the relationship to causation in fact and the risk of conflating the inquiries as you will see in the first case you read in this section, Camp v. Jiffy Lube. The third challenge of proximate cause is that jurisdictions use diverse formulations or tests and these can vary to some extent. Nonetheless, understanding the main patterns, their interrelationships and their origins in case law proves clarifying. Finally, the last challenge associated with proximate cause is its unpredictability and malleability. Because it is expressly infused with normative decisions and policy assessments, it can seem unruly and difficult to categorize or predict.
Questions or Areas of Focus for the Readings
• What does it mean to formulate a “test” for proximate cause? Who does so, and who applies it?
• What is the significance, in practical terms, of differing tests for proximate cause?
• To the extent that proximate cause exists as a policy determination whose primary effect is to limit liability, when should that determination be a question of fact for the jury? Given that duty exists as a gate-keeping (potentially liability-limiting) doctrine as a matter of law for the judge to determine, when do cases resolve issues as a function of proximate cause instead of duty, and when should they do so, in your view?
• A common way to understand proximate cause cases relative to “garden-variety” (or more ordinary) negligence cases is that the facts usually involve something highly unusual, extraordinary or freakish. The cases select for such fact patterns because one of the issues being litigated, as a question of fact, is the unforeseeability of the nature of the harm, or the extent of it, perhaps, or the unforeseeability of the plaintiff. What do you observe about the kinds of injuries in the cases that follow? What defenses recur and why do you think that is?
(309 N.J. Super. 305)
The principal issue on this appeal is whether the trial court properly charged the jury on proximate cause. We conclude the charge was improper. Accordingly, we reverse and remand for a new trial.
The essential facts giving rise to the appeal began on July 13, 1993, when William Camp (plaintiff) left his 1989 Chevrolet at defendant’s facility for a routine oil change. After servicing the car, defendant’s employees had trouble closing the hood. After *308 several attempts, the employees were able to close the hood. However, when plaintiff picked up the car, no one told him of the difficulty closing the hood. Plaintiff drove about five blocks when the hood suddenly flew open and broke the car’s windshield. Plaintiff, contending he sustained bodily injuries as a result, filed a complaint seeking compensatory damages he alleged were proximately caused by defendant’s employees’ negligence. Plaintiff’s wife also sought damages for loss of consortium.
In a liability-only trial, plaintiff contended defendant was negligent because its employees failed to properly shut the hood or because they should have notified or warned him about the problem experienced with shutting the hood but failed to do so. In light of plaintiff’s contentions, the trial court instructed the jury on proximate cause.
The court stated:
The burden of proof is on the plaintiff to establish his claim by a preponderance of the evidence…. In this case, the plaintiff, Mr. Camp, has the burden of establishing by a preponderance of the evidence all the facts necessary to prove that the defendant either didn’t properly close the hood, or failed to notify him of problems with the hood so he could have taken the proper steps to deal with it.
….
I have indicated to you previously that the term accident in this case does not necessarily mean a multiple or even a one-car collision. The term accident, as used in these jury instructions, means incident. Thus, you are not required to find that an accident occurred, but that an incident occurred. The incident in question is the hood of the plaintiff’s car striking the plaintiff’s windshield. In this case, the plaintiff contends that the defendant was negligent in failing to properly shut or close the front hood of the car, and/or failing to advise the plaintiff of the problem in shutting or closing the hood of the vehicle so that he could take whatever actions … he would deem necessary. ….
Ladies and gentlemen, you have heard me use the term proximate cause…. In order for the plaintiff whose claims you are considering to recover damages, such damages must be proximately caused by the actions or the inactions of the defendant.
By proximate cause is meant that the action or the inaction of the defendant was the efficient cause, the one that naturally set the other causes in motion, and without which the damages claimed or the injuries claimed would not have resulted. The law requires that the damages chargeable to the defendant must be shown to be the natural and probable effects of the actions or the inactions of the defendant. [Emphasis added.] *309
The jury returned a verdict against plaintiff by answering “No” to the verdict sheet question, “Was the Defendant, Jiffy Lube, negligent, which negligence was a proximate cause of the incident?” After the trial court denied a motion for a new trial, plaintiff and his wife appealed the ensuing judgment.
They contend the trial court’s proximate cause charge was not only inappropriate given the fact issues for jury resolution but also because the court, in explaining proximate cause, told the jury it meant they had to determine whether defendant’s action or inaction “was the efficient cause, the one that naturally set the other causes in motion, and without which the damages claimed or the injuries claimed would not have resulted.” [Emphasis added.] We agree the court failed to tailor the proximate cause definition to the facts of the case and compounded that failure by utilizing the definite article “the” in the definition.
Proximate cause is a limitation the common law has placed on an actor’s responsibility for the consequences of the actor’s conduct. It is “a complex term of highly uncertain meaning.” William L. Prosser, Proximate Cause in California, 38 Cal. L.Rev. 369, 375 (1950) [c]. It requires careful definition in jury charges to avoid misleading the jury. [c]
When instructing a jury on proximate cause, trial courts must distinguish between the routine tort cases and cases where concurrent causes of harm are present. In the former, “ ‘the law requires proof that the result complained of probably would not have occurred “but for” the negligent conduct of the defendant.’” [cc] In the latter, the law requires consideration of the “substantial factor” test. The “but for” standard concentrates on one cause that sets the *310 other causes in motion, while the “substantial factor” test recognizes that “ ‘a tortfeasor will be held answerable if its “negligent conduct was a substantial factor in bringing about the injuries,” even where there are “other intervening causes which were foreseeable or were normal incidents of the risk created.”’” [cc] In the latter circumstance, “[a]lthough the law of negligence recognizes that there may be any number of concurrent causes of an injury, ‘[n]evertheless, these acts need not, of themselves, be capable of producing the injury; it is enough if they are a “substantial factor” in bringing it about.’” [cc]
The charge here included no instruction on the “substantial factor” test. Instead, it improvidently focused the jury on the “but for,” or cause that set other causes in action, in an instance where there was evidence of concurrent causes for the harm: the defective hood, the improper shutting of the hood, and the failure to warn about the defective hood. The charge should have been tailored to deal with the concurrent causes projected by the facts in evidence.
The charge compounded the improvident concentration on the need for the jury to concentrate on an exclusive cause that set other causes in motion when it instructed plaintiff was required to establish that defendant’s negligence was the proximate cause of the harm that occurred. Emphasis on the rather than a cause unduly directed the jury’s focus to a “but for” single cause. In Ellis v. Caprice, 96 N.J.Super. 539, 549 (App. Div.), certif. denied, 50 N.J. 409 (1967), we reversed a *311 judgment in favor of defendants when the trial court used the definite article “the” in defining proximate cause for the jury. We conclude the same charge mistake here requires reversal.
Nonetheless, defendant argues the charge read as a whole makes the trial court mistake harmless error. Our rationale for rejecting the same argument in Ellis is applicable here: “regardless of how well intentioned the jury may have been, it had no way of knowing which of the two versions represented the correct rule.” [c]. Only an express statement by the trial court that its original proximate cause charge was incorrect would have salvaged the charge. [c] There was no such express statement.
In sum, the proximate cause charge misled the jury on the term’s essential elements in the factual context of the case. Here, plaintiff was entitled to a charge that the jury should consider whether defendant’s failure to give notice, or failure to properly close the hood, was negligence that was a substantial factor in causing the accident giving rise to the injuries. Instead, the jury received a charge that focused on the cause for the accident. By placing emphasis on the cause, the trial court misdirected the jury’s focus to one that had the potential for placing too much emphasis on the defective latch as the cause and not enough on the failure to give notice or failure to properly close the hood, or both. Consequently, the jury was not sufficiently instructed on the applicable law so that it could perform its function. [c]
Reversed and remanded for a new trial.
Note 1. The court faults the jury instruction for incorrectly using the definite article, “the” rather than the indefinite “a.” In your own words, why does this matter to the outcome in this case?
Note 2. The improper jury instructions also confused the two inquiries of causation. Do you see how?
(3 King’s Bench 560)
BANKES, L.J. By a time charter party dated February 21, 1917, the respondents chartered their vessel to the appellants. * * * The vessel was employed by the charterers to carry a cargo to Casablanca in Morocco. The cargo included a quantity of benzine or petrol in cases. While discharging at Casablanca a heavy plank fell into the hold in which the petrol was stowed, and caused an explosion, which set fire to the vessel and completely destroyed her. The owners claimed the value of the vessel from the charterers, alleging that the loss of the vessel was due to the negligence of the charterers’ servants. The charterers contended * * * that the damages claimed were too remote. The claim was referred to arbitration and the arbitrators stated a special case for the opinion of the Court. Their findings of fact are as follows: The arbitrators found that the ship was lost by fire; that the fire arose from a spark igniting the petrol vapor in the hold; that the spark was caused by the falling board coming into contact with some substance in the hold; and that the causing of the spark could not reasonably have been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated, and stated the damages at £196,165 1s. 11d. * * * In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendants’ servants.
The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellants’ junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act and the anticipation of the type of damage resulting from such an act. He admitted that it could not lie in the mouth of a person whose negligent act had caused damage to say that he could not reasonably have foreseen the extent of the damage, but he contended that the negligent person was entitled to rely upon the fact that he could not reasonably have anticipated the type of damage which resulted from his negligent act. I do not think that the distinction can be admitted.
Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant. I consider that the damages claimed are not too remote. * *
SCRUTTON, L.J. * * * The second defense is that the damage is too remote from the negligence, as it could not be reasonably foreseen as a consequence. * * * [I]f the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. * * * In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapor which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.
For these reasons the experienced arbitrators and the judge appealed from came, in my opinion, to a correct decision, and the appeal must be dismissed with costs.
Note 1. Is the following reasoning from Polemis simply restating the causa causans principle in Guille v. Swan, supra, Module 1? “The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapor which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.” Polemis notes that a defendant may sometimes bring a defense on the grounds that “the damage is too remote from the negligence, as it could not be reasonably foreseen as a consequence.” Is this a limit on causa causans? What principle is being used to set that limit if so?
Note 2. As you read the pattern jury instruction that follows, keep the reasoning from Polemis in mind. Can you see the connection? Although Polemis is no longer good law in England where it was decided a century ago, its influence has permeated American case law on the issue of proximate cause.
Tests in the Proximate Cause Analysis
Although many formulations exist, the two most common are the directness test and the foreseeability test. The Restatement has tried to popularize a “scope of the risk” test but it has failed to gain practical traction in the case law whether or not it is influential in other domains. In addition, many jurisdictions add language of substantiality requiring that the plaintiff prove that the defendant’s breach was a substantial factor in the plaintiff’s injuries. As you read examples of jury instructions that illustrate the various formulations of the test, keep causation and proximate cause distinct even where the language appears to conflate the two.
1. “Directness” Test
Washington Pattern Jury Instructions–Civil
WPI 15.01 Proximate Cause—Definition
The term “proximate cause” means a cause which in a direct sequence [unbroken by any superseding cause,] produces the [injury] [event] complained of and without which such [injury] [event] would not have happened.
[There may be more than one proximate cause of an [injury] [event] .]
WPI 15.01 Proximate Cause—Comment
There have been many attempts to define “proximate cause.” In Washington it has been defined both as a cause which is “natural and proximate,” Lewis v. Scott, 54 Wn.2d 851, 857, 341 P.2d 488 (1959), and as a cause which in a “natural and continuous sequence” produces the event, Cook v. Seidenverg, 36 Wn.2d 256, 217 P.2d 799 (1950). Some authorities, in an effort to simplify the concept of proximate cause for jurors, have substituted the term “legal cause.” See, e.g., Restatement (Second) of Torts § 9 (1965). However, the “direct sequence” and “but for” definition adopted in this instruction is firmly entrenched in Washington law.
6 Wash. Prac. Wash. Pattern Jury Instr. Civ. WPI 15.01 (7th ed.)
Note 1. Washington state’s jury instruction, above, on proximate cause and related comments, reflects how the profession has synthesized prior cases. But it is also somewhat confusing in that in Washington, “proximate cause” appears to subsume causation in fact (“and without which such [injury] [event] would not have happened.”) Recall the emphasis in Camp v. Jiffy Lube, however, differentiating “the cause” from “a cause.” The next line of the model instruction adds the potential to clarify that: “[t]here may be more than one proximate cause of an [injury] [event].” This conclusively differentiates but-for causation and proximate causation.
Note 2. New Jersey also adopts a Polemis-oriented directness test and it similarly links the two kinds of causation:
“By proximate cause, I refer to a cause that in a natural and continuous sequence produces the resulting injuries or losses and without which the resulting injuries or losses would not have occurred. A person who admits liability is held responsible for any injuries or losses that result in the ordinary course of events from the happening of the accident. That means that you must find that the resulting injuries or losses to plaintiffs would not have occurred but for the happening of the accident. If you find that but for the happening of the accident plaintiffs’ injuries and/or losses would not have occurred, then you should find that the accident was a proximate cause of plaintiff’s injuries and losses.” See Model Jury Charge (Civil), 6.10, “Proximate Cause – General Charge” (rev. Nov. 2019), applied in Serra-Wenzel v. Rizkalla, No. A-5009-18T3, 2020 WL 6123085, at *2 (N.J. Super. Ct. App. Div. Oct. 19, 2020) (emphasis supplied).
Note 3. Colorado appears to determine causation based on directness and to require foreseeability for proximate cause: “The requirement of but-for causation is satisfied if the negligent conduct in a natural and continued sequence, unbroken by any efficient, intervening cause, produce[s] the result complained of, and without which that result would not have occurred…. foreseeability is the touchstone of proximate cause.” Deines v. Atlas Energy Servs., LLC, 2021 COA 24, ¶ 12, 13 (internal citations omitted).
Exam tip: So long as you keep the two inquiries of factual and proximate causation distinct, the label or particular test may not matter much. Do remember that it is a mistake to conflate the two inquiries or to skip either one, whatever names they have in a given jurisdiction. Recall that cause-in-fact is descriptive and proximate cause is normative.
Again: cause in fact generally asks if cause can be proven; proximate cause assumes that it can be factually proven at some level and asks whether liability should apply given the circumstances and policy considerations. You can think of proximate cause as an escape valve; it is a doctrine that limits liability even in cases in which duty, breach, cause-in-fact and harm are otherwise met.
2. “Foreseeability” Test
(196 Iowa 678)
The alleged negligence of the defendant is charged in the petition in the following terms:
“That on or about the 30th day of May, 1920, the plaintiff, her husband, and two sons, were driving in the plaintiff’s automobile on and along the said White Pole road in an easterly direction. That one of the plaintiff’s said sons was driving and operating the plaintiff’s husband’s said automobile in a cautious and careful manner and at a moderate and lawful rate of speed. That when at a point on said highway adjacent to the land owned and operated by the defendant, some hogs, belonging to defendant, which the said defendant had negligently, carelessly, and unlawfully permitted to stray from (upon) said highway, suddenly jumped out of a depression or sunken road, running at right angles with said highway on the west side of said highway, and ran out upon the traveled part of said highway, directly in the path of the plaintiff’s husband’s said automobile. That plaintiff and the other occupants of the said car were unaware of the presence of said hogs until they, the said hogs, ran out from the said depression or sunken road directly in the path of his said automobile. That, although the driver of said car, the plaintiff’s said son, exerted every effort to avoid a collision with the said hogs, he was unable to do so. That one of defendant’s said hogs ran directly under the left front wheel of plaintiff’s husband’s automobile, causing it, the said automobile, to turn turtle and to throw plaintiff and the other occupants of plaintiff’s husband’s said automobile violently to the ground.
That at the time of the said collision, the defendant was standing in the barnyard of the said farm, east of the said highway. That just as the plaintiff’s husband’s automobile reached the point at, or near, said depression or sunken road, the defendant called the said hogs. That the said hogs jumped up and ran out upon the traveled part of the said highway, in the path of the plaintiff’s husband’s said automobile, in response to the defendant’s said call. That defendant knew full well, or should have known, that the said hogs would jump out of the said depression or sunken road in response to his said call, and run out in the traveled part of the highway directly in the path of the said automobile.
That the defendant above named was guilty of negligence and carelessness in connection with the matter of said hogs being upon said public roadway, in that said defendant did fail to restrain said hogs from running at large and did fail to restrain said hogs from going upon public roads for travel or driving, and in that said defendant did fail to keep the said hogs under his immediate care and efficient control, as provided by section 2314 of the Code of Iowa 1897.
That defendant was guilty of carelessness and negligence, in that, in addition to failing to restrain said hogs from going upon a public roadway, he did commit an affirmative act of negligence and carelessness, in that he did call his hogs from the other side of the roadway from where he was located, at a time when automobiles, and particularly when the automobile in which plaintiff was riding, was passing along said roadway, which fact was known to defendant, or, in the exercise of reasonable care, should have been known to defendant, thus causing said hogs to quickly and suddenly run upon and in front of the automobile in which plaintiff was riding, and causing said automobile to turn turtle as hereinbefore stated.”
*268 The demurrer to the foregoing was predicated upon the three following grounds:
1. It appears from the plaintiff’s petition that no negligence on defendant’spart, of which plaintiff has a right to complain, was the proximate cause of plaintiff’sinjury, if any she suffered.
2. Even if the matters and things set forth in plaintiff’s petition were true, the fact that some of defendant’s hogs were on the public highway, if such were a fact, does not render him liable for automobile accidents or make him an insurer of the safety of persons traveling along the public highway, so far as a collision between a pig and an automobile is concerned.
3. The matters and things set out in plaintiff’s petition as negligence or as improper or unlawful acts on the part of defendant are not such matters and things as to enable the plaintiff to base a cause of action thereon against the defendant or to entitle her to recover against him, because the mere escape of hogs from an inclosure is not negligence, and a collision between a hog and an automobile on a public highway is not such a thing as defendant could or would be bound to anticipate, if his hogs should escape from an inclosure on to the public highway.”
The argument of the appellee [hog owner] in support of the foregoing grounds of demurrer is predicated largely upon the twofold assumption:
(1) That the action is one for statutory damages under sections 2313 and 2314 of the Code.
(2) That such statute has no application to the rights of a traveler upon the highway, and that it imposes upon the owner of swine no duty with reference to such highway travel.
The record indicates that such was the controlling reason for the sustaining of the demurrer. We note first, therefore, that this conception of the nature of the action is an erroneous one. The petition discloses an ordinary action at law for damages for negligence. In such an action, it is always incumbent upon the plaintiff to plead and to prove the alleged negligence. Negligence is the breach of some duty, imposed either by common law or by statute upon the offending party. If the duty be imposed, then a breach of it is actionable, if it result proximately in injury to another; and this is equally true whether the duty be imposed by common law or by statute.
The petition charges two negligences:
(1) That the defendant negligently permitted his hogs to run at large upon the highway.
(2) That he was affirmatively negligent in calling his hogs under the circumstances existing at the time of such calling.
For the moment we shall ignore the latter charge, and consider only whether the first was a sufficient allegation of negligence. At common law, it was the duty of the defendant to restrain his hogs from running at large. He had the common right of the public to drive them upon the highway while in charge of a caretaker. He had no right to permit them to run upon the highway without a caretaker. This rule of the common law has not been abridged by our statute. On the contrary, it has been expressly confirmed. Section 2314 expressly prohibits the owner of swine from permitting the same to run at large at any time. It also defines the phrase “running at large” as follows:
“But stock shall not be considered as running at large so long as it is upon unimproved lands and under the immediate care and efficient control of the owner, or upon the public roads for travel or driving thereon under like care and control.”
The necessary effect of this statute is both to recognize and to impose upon the owner of hogs the legal duty to restrain them from running at large, either upon the lands of another, or upon the public highway. [***]
We hold, therefore, at this point that the allegation that the defendant negligently permitted his hogs to run at large upon the highway is a sufficient allegation of negligence for the purpose of a demurrer. Whether it should have been made more specific is a question not involved in a consideration of the demurrer. [***]
It is urged by appellee that the alleged negligence of the defendant was not the proximate cause of the injury suffered, in that the accidental collision of the hog with the plaintiff’s automobile was an accident or event that the owner of the hog could not have anticipated as a probable consequence of his negligence. [***] On the general proposition [***] cited by the appellee, we are unable to give our assent. It is the fundamental law of the highway that it is subject to the use of the traveling public, and that it must be kept free from such obstructions as are not incident to its use for travel. Whatever endangers travel thereon, and which is not incident to the lawful use or care of the highway, becomes ordinarily a nuisance and a public peril.
In the days of the ox-drawn vehicle, it may be conceded that the presence of a hog upon the highway would not present any imminent danger of a collision with the vehicle. In the later day of the swifter moving horsedrawn vehicle, the presence of a hog at large became an increased danger, though more readily avoidable than in the still later day of the motor vehicle. In these days of general travel by motor vehicle, we see no room for saying, as a matter of law, that the presence of a hog at large upon the highway does not suggest danger of collision with traveling vehicles. If it could be said, as a matter of law, that the instincts of a hog stimulate him to an avoidance and escape from an approaching vehicle, there might be some room for debate. But it could as well be said, and doubtless more plausibly, that by the universal verdict of general observation his instincts and natural tendencies are in the other direction, and that he will more likely, if not certainly, pass in front of a moving vehicle at whatever time or place it comes within the short radius of his locomotion. Ordinarily the question of proximate cause is one of fact for the jury, and we are not now dealing with the weight of evidence or with expert opinion as to the habits or tendencies of the hog. The liability of owners for damages for a collision of vehicles with stock, unlawfully running at large upon the highway, has heretofore been recognized by us quite as a matter of course without challenge by the defending litigant. [cc]
In the latter case we said:
“The statute to which this allegation has reference [meaning the allegation of the petition] does not involve the doctrine of common-law negligence, upon which the liability in the instant case must be and is predicated.”
We hold at this point that it cannot be said as a matter of law that a collision between a vehicle and a hog, unlawfully running at large upon the highway, is an event too remote to be deemed as the proximate result of defendant’s negligence, if any.
One of the grounds of the demurrer was that the defendant is not liable for a mere escape of his hogs from the inclosure in which they were confined, and that such escape of the hogs did not constitute negligence on the part of the owner; and this point is pressed in argument here. There is nothing in the allegations of the petition to which this ground of the demurrer is apropos. … Upon trial, it will be incumbent upon the plaintiff to prove the negligence, and it will be open to the defendant to negative the same, both by affirmative as well as negative evidence. Proof that the hogs were running at large would doubtless be presumptive evidence of defendant’s breach of statutory duty, and therefore of negligence. What circumstances might be deemed as sufficient to excuse the defendant and to render him free from fault is a question not involved in the demurrer.
[***] It is our conclusion that the demurrer should have been overruled, and that the *270 learned trial judge erred in ruling otherwise. The judgment below is accordingly reversed, and the cause is remanded accordingly.
Note 1. What exactly is the negligence alleged (and on what basis is it proven)?
Note 2. In your view, is this case one that should be resolved on grounds of duty, or proximate cause? Would it matter to your determination what the jurisdiction looked like, socioculturally or agriculturally?
Note 3. The test for proximate cause is not expressly stated in this case but the defendant’s argument raises a lack of foreseeability argument in vain: “the accidental collision of the hog with the plaintiff’s automobile was an accident or event that the owner of the hog could not have anticipated as a probable consequence of his negligence.”
Note 4. Many states use some version of foreseeability in their proximate cause analysis. Consider this example from Utah:
Under Utah law, “[p]roximate cause is that cause which, in natural and continuous sequence (unbroken by an efficient intervening cause), produces the injury and without which the result would not have occurred. It is the efficient cause—the one that necessarily sets in operation the factors that accomplish the injury …
Under Utah law, “[w]hat is necessary to meet the test of negligence and proximate cause is that it be reasonably foreseeable, not that the particular accident would occur, but only that there is a likelihood of an occurrence of the same general nature.’” [c]. The defendant need not predict the exact injury that flows from its negligence so long as the general nature of the injury is foreseeable.”
Jacobs-Peterson v. United States, 219 F. Supp. 3d 1091, 1096 (D. Utah 2016)
The next case draws more explicitly on the concept of foreseeability and illustrates how it can operate in both duty and proximate cause analysis. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/03%3A_Negligence/3.07%3A_Negligence-_Proximate_Cause.txt |
Warning: The next case features a pretty gory fact pattern. Steel yourselves.
(2010 WL 7198225) (Ill.Cir.Ct.) (Trial Order)
*1 These matters come before the court on plaintiff Gayane Zokhrabov’s motion for partial summary judgment and defendant Jeung-Hee Park’s cross-motion for summary judgment pursuant to 735 ILCS 5/2-1010. This case arises out of a September 13, 2008 incident wherein an Amtrak train struck and killed Hiroyuki Joho (“decedent”), defendant’s son. The impact of the collision caused decedent’s body to fly through the air and hit plaintiff, causing her multiple injuries. Plaintiff filed a two-count complaint against decedent’s estate (count I) and Northeast Regional Commuter RR Corporation (count II). Count I sounds in negligence and count II has been voluntarily dismissed.
[Editor’s note, on appeal, the court provided a fuller statement of facts, which I include here.]
Hiroyuki Joho was killed when he was struck by an Amtrak train at the Edgebrook Metra station at Lehigh and Devon Avenues in Chicago. Joho’s accident occurred just before 8 a.m. on Saturday, September 13, 2008, when the 18–year–old man was crossing in a designated crosswalk from the eastside passenger platform where Metra commuter trains arrive from Chicago, to the westside passenger *1038 platform where Metra commuter trains depart toward Chicago. Joho was about five minutes early for the next scheduled Metra departure to Chicago. The sky was overcast and it was raining heavily as he proceeded west across the double set of tracks, holding an open, black umbrella over his head and a computer bag on a strap across his shoulder. The Metra station was not a destination for the Amtrak train that was traveling south at 73 miles an hour, and the engineer in the bright blue locomotive maintained speed, but sounded a whistle which triggered automatic flashing headlamps. Witnesses, nonetheless, disagreed as to whether Joho realized the train was approaching. He was smiling at the commuters standing on the southbound platform when the train hit him. A large part of his body was propelled about 100 feet onto the southbound platform where it struck 58–year–old Gayane Zokhrabov from behind, knocking her to the ground. She sustained a shoulder injury, a leg fracture, and a wrist fracture. (963 N.E.2d 1035) [***]
Plaintiff moves for summary judgment on the issues of negligence and proximate causation Defendant moves for summary judgment on the issue of duty. Plaintiff alleges that defendant’s decedent owed plaintiff a duty of reasonable and ordinary care, and breached that duty when he:
(a) carelessly and negligently failed to keep a proper lookout for approaching trains; or
(b) carelessly and negligently ran in the path of an approaching train; or
(c) carelessly and negligently failed to yield the right of way to approaching trains.
She also attempts to impose a legal duty on decedent by citing to 625 ILCS 5/11-11-1011(c), which states:
No pedestrian shall enter, remain upon or traverse over a railroad grade crossing or pedestrian walkway crossing a railroad track when an audible bell or clearly visible electric or mechanical signal device is operational giving warning of the presence, approach, passage, or departure of a railroad train.
[***] *2 To determine the existence of a duty, the court looks to the “relationship between defendant and plaintiff, the likelihood of injury, the magnitude of guarding against the injuries, and the consequences of placing that burden on defendant.” [c] However, “even if an injury was foreseeable, foreseeability alone will not create a legal duty.” Establishing legal duty “requires more than a mere possibility of occurrence.” Cunis v. Brennan, 56 Ill.2d 372, 376 (1974). One cannot be “expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.” Id. An “actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.” Id. The court must be careful not to examine “what may appear through exercise of hindsight” and must “consider what was apparent to the defendant at the time of his now complained of conduct.” Id. When an “injury results from freakish, bizarre or fantastic circumstances, no duty exists and no negligence claim can be asserted for injuries that were not reasonably foreseeable.” [c]
“Statutes and ordinances designed to protect human life or property establish the standard of conduct required of a reasonable person.” [c] These types of law “fix the measure of legal duty.” Id. “A party injured by such a violation may recover only by showing that the violation proximately caused his injury and the statute or ordinance was intended to protect a class of persons to which he belongs from the kind of injury that he suffered.” [c]
In Cunis, supra, plaintiff was involved in a collision and was injured when he was thrown from his car and landed on a pipe in a parkway 30 feet away. He sued, inter alia, the Village of LaGrange which owned the parkway. After discussing statistics showing the frequency with which passengers were ejected from cars after collisions, the Supreme Court nevertheless found that no duty was owed because this accident was not reasonably foreseeable. Specifically, the court stated:
The circumstance here of the plaintiff’s being thrown 30 feet upon the collision with a third person’s automobile and having his leg impaled upon the pipe was tragically bizarre and may be unique. We hold that the remote possibility of the occurrence did not give rise to a legal duty on the part of the Village to the plaintiff to protect against his injury. [c]
The instant case is similar. The circumstance that a portion of decedent’s body would be thrown 100 feet into the plaintiff is “tragically bizarre”. In fact, this outcome was even less foreseeable to decedent as his negligently crossed in front of the train than was that in Cunis. Also, plaintiff is not in the class of those persons who were intended to be protected by 625 ILCS 5/11-1011(c). Section 11-1011 is intended to protect pedestrians from being struck by a train.
Accordingly, defendant’s Cross-Motion for Summary Judgment is GRANTED, and plaintiff’s Motion for Partial Summary Judgment is DENIED. This order is final and disposes of this case.
(963 N.E.2d 1035)
[***] It is axiomatic that pedestrians on or near active train tracks are at great risk of suffering severe, even fatal, injuries. This court recently held that the personal danger posed by stepping in front of a moving train is an open and obvious danger. Park v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 101283, 960 N.E.2d 764, 771. The law generally assumes *1039 that persons who encounter obvious, inherently dangerous conditions will take care to avoid the danger. Park, 960 N.E.2d at 771. “‘The open and obvious nature of the condition itself gives caution * * *; people are expected to appreciate and avoid obvious risks.’” [cc] [***] Numerous cases indicate that death or great bodily harm is the likely outcome of failing to exercise due care when walking on or near active train tracks. [cc] [***] In addition to these cases indicating that active trains pose an open and *1040 obvious danger to pedestrians, there is an Illinois statute regarding pedestrian rights and duties which states: “No pedestrian shall enter, remain upon or traverse over a railroad grade crossing or pedestrian walkway crossing a railroad track when an audible bell or clearly visible electric or mechanical signal device is operational giving warning of the presence, approach, passage, or departure of a railroad train [or railroad track equipment].” 625 ILCS 5/11–1011(c) (West 2006).
Breach of a statute enacted to protect human life or property, which is the obvious purpose of this statute, is an indication that a person has acted with less than reasonable care. [c] [***] Thus, the precedent and statute indicate that Joho failed to act with due regard for his own safety and self-preservation. The record indicates the Amtrak engineer triggered an audible warning whistle and flashing headlamps before proceeding through the Edgebrook Metra station. Even if Joho mistook the Amtrak train which was not stopping at the station for the Metra train which he intended to board, the record indicates he failed to exercise reasonable care for his own safety when he failed to look down the train tracks before attempting to cross the tracks in front of an approaching train.
The question we must answer is whether Joho owed a duty of care to Zokhrabov as he approached and entered the active Edgebrook station and she stood down the tracks in the waiting area designated for intended passengers. [***]
One justification for imposing liability for negligent conduct that causes physical harm is corrective justice; imposing liability remedies an injustice done by the defendant to the plaintiff. An actor who permits conduct to impose a risk of physical harm on others that exceeds the burden the actor would bear in avoiding the risk impermissibly ranks personal interests ahead of others. This, in turn, violates an ethical norm of equal consideration when imposing risks on others. Imposing liability remedies this violation.
Restatement (Third) of Torts § 6, cmt. d (2010).
Another justification for imposing liability for negligence is to give actors appropriate incentives to engage in safe conduct. The actor’s adoption of appropriate precautions improves social welfare and thereby advances broad economic goals.
Id.
*1041 Therefore, when determining whether a duty of care exists in a particular set of circumstances, an Illinois court will consider, among other factors, the reasonable foreseeability that the defendant’s conduct may injure another. Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill.App.3d 32, 40 (1997). The court’s other considerations in a duty analysis include the reasonable likelihood of an injury, the magnitude of the burden imposed by guarding against the harm, and the consequences of placing this burden on the defendant. Colonial Inn, 288 Ill.App.3d at 40.
It is a “well-established principle of tort law that the particular manner or method by which a plaintiff is injured is irrelevant to a determination of the [defendant’s] liability for negligence.” Nelson v. Commonwealth Edison Co., 124 Ill.App.3d 655, 660 (1984). The existence of a duty depends on whether there was a potential for initial contact with and thus an injury to the plaintiff, meaning that the plaintiff was a foreseeable plaintiff. Colonial Inn, 288 Ill.App.3d at 42 (“Focusing on the potential for injury rather than on the specifics of the harm that did occur, we find the duty problem is relatively simple.”). “It is generally accepted that where the plaintiff’s injury resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort expectable, unforeseeability of the exact developments and of the extent of loss will not limit liability.” Nelson, 124 Ill.App.3d at 661. “For example, if a ship owner fails to clean petroleum out of his oil barge moored at a dock, he has created an undue risk of harm through fire or explosion. The fact that a fire is ignited by the unusual event of lightning striking the barge does not relieve the ship owner from liability to foreseeable plaintiffs who are injured.” Nelson, 124 Ill.App.3d at 661. Thus, a foreseeable injury, even through unforeseen means, is actionable.
However, in a duty analysis, we must take care to differentiate between “two distinct problems in negligence theory,” the first being the foreseeable injury resulting from unforeseen means, which is an actionable injury, and the second being the unforeseen plaintiff, who is not owed a duty of care. Nelson, 124 Ill.App.3d at 660. Furthermore, while the foreseeability of injury to the particular plaintiff is properly considered in a duty analysis, the foreseeability of the particular injury or damages are more appropriately considered in determining the factual issue of proximate causation (Colonial Inn, 288 Ill.App.3d at 40–41), and we must differentiate between these two circumstances in order to properly apply the “foreseeability” test (Nelson, 124 Ill.App.3d at 662). In this case, the trial judge concluded it was not reasonably foreseeable and was instead tragically bizarre that when Joho crossed in front of the oncoming Amtrak train in Edgebrook he would be struck and thrown 100 feet to where Zokhrabov stood on the Metra customer platform.
The trial judge based his conclusions on Cunis v. Brennan, 56 Ill.2d 372 (1974), which involved a two-car collision in suburban La Grange, Illinois, in which a passenger was ejected and thrown 30 feet to the public parkway, where his leg was impaled on an abandoned municipal drain pipe, necessitating amputation of the limb. *1042Id. at 373. The passenger alleged the municipality was negligent in leaving the broken drain there. Id. at 374. The likelihood that the collision would cause the passenger to be ejected and propelled 30 feet to the exact location of a broken pipe that was 4.5 feet from one curb and 5.5 feet from the other, and then impaled, seemed very remote and led the trial and supreme courts to conclude that the circumstances were “tragically bizarre” and possibly even a “unique” outcome. Id. at 377. The fact that the “misplaced drainpipe would cause any injury to someone riding in a car 30 feet away was an example of “ ‘the freakish and the fantastic,’”” for which the village was not liable. (Emphasis in original.) [c] (quoting Cunis, 56 Ill.2d at 376 (quoting William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 27 (1953))).
The passenger’s injury would appear to involve many variables, including the speed and weight of the two vehicles, the angle of their collision, the weather conditions, the extent and direction of any evasive maneuvers, and the passenger’s height, weight, and position within the vehicle, as well as whether he was wearing a seatbelt. The supreme court affirmed the trial judge’s ruling that the injured passenger had not alleged what occurred was reasonably foreseeable and therefore a basis for holding the Village of La Grange liable for negligently breaching its duty of care. Cunis, 56 Ill.2d at 378.
Thus, Cunis may be cited generally for the proposition that there is no duty to anticipate and prevent injuries that occur due to unusual and extraordinary circumstances. We do not find Cunis helpful here, however. The two-car collision, ejectment, and impalement in La Grange bear little similarity to the train-pedestrian collision in Edgebrook that caused a third, unconnected person to be struck and injured. In contrast to the complex and unique combination of factors in La Grange, the potential outcome of Joho’s conduct in Edgebrook appears to be relatively limited, since the path of the train was fixed, the pedestrian crosswalk was marked, the train ran within the established speed limit, its speed, weight, and force grossly exceeded any pedestrian’s, and commuters were congregating to the side of the train tracks for the next scheduled public departure.
Cunis does not inform us about the factual circumstances in Edgebrook—it does not indicate that what occurred at the train station was such an unusual and extraordinary combination of facts that Joho could not reasonably foresee the potential for causing injury to the waiting passengers when he decided to cross the tracks. Cunis does not suggest that what occurred in Edgebrook was similarly “freakish” “fantastic” or tragically bizarre. Cunis, 56 Ill.2d 372.
There are no reported cases we have found in which a pedestrian who was struck and injured by a flying body sued the deceased person’s estate. There are a few cases in which a pedestrian was struck by a train or car and flung into another person. In these cases, however, the injured person sued the railroad or automobile driver. We do not find these opinions particularly helpful because they concern the alleged negligent operation of a rail yard or a train or other vehicle, which is not analogous to Joho’s alleged negligence as a pedestrian traversing train tracks. [cc] Thus, there are a few reported cases involving flying pedestrians, but none of them are analogous to Joho’s conduct with respect to Zokhrabov.
Accordingly, rather than relying on cases which are factually and procedurally dissimilar, we apply a traditional duty analysis to determine whether Zokhrabov was a foreseeable plaintiff and thus owed a duty of care. Colonial Inn Motor Lodge, Inc. v. Gay, 680 N.E.2d 407 at 414 (1997) (a duty of care exists if there was a potential for initial contact with and thus an injury to the plaintiff, meaning that the plaintiff was a foreseeable plaintiff; “[f]ocusing on the potential for injury rather than on the specifics of the harm that did occur [makes a duty analysis] relatively simple”).
At the outset of this opinion, we cited cases regarding pedestrians struck by trains and a statute regarding pedestrian rights and safety as indicators that Joho acted without due regard for his own person and self-preservation in the active train station. We reiterate that the potential outcome of his conduct appears to be relatively limited, since the path of the train was fixed, the pedestrian crosswalk was marked, the train ran within the established speed limit, its speed, weight, and force grossly exceeded any pedestrian’s, and commuters were congregating to the side of the train tracks for the next scheduled public departure. Accordingly, we further find that it was reasonably foreseeable that the onrushing Amtrak train would strike, kill, and fling his body down the tracks and onto the passenger platform where Zokhrabov was waiting for the next scheduled Metra departure. We find that the trial court erred in concluding that Joho could not reasonably foresee that his negligence in the active train station would cause injury to someone standing in the passenger waiting area.
Continuing with the four elements of a duty analysis, we find that the reasonable likelihood of injury occurring was great given the relative force of the approaching Amtrak train, that the magnitude of the burden imposed by guarding against the harm was insignificant, since Joho needed only to pause, look down the tracks, and then time his crossing accordingly, and that the consequences of placing the burden on Joho would have been minimal.
*1045 We, therefore, find that the trial judge erred in holding that the defendant owed the plaintiff no duty of care. We reverse the entry of summary judgment as to duty and remand Zokhrabov’s case for further proceedings. We express no opinion regarding the additional elements of her negligence action, including breach, proximate causation, and damages, which are issues usually decided by a jury. Reversed and remanded.
Note 1. The appellate court remands to allow the case to proceed to a jury on the several issues, including proximate causation, but it is notable that duty failed to limit liability here. What factors would you consider in deciding whether Joho had breached his duty to Zokhrabov? What sorts of facts, if true, would cause you to limit the liability of his estate to compensate Zokhrabov for her injuries?
Note 2. How would Justices Cardozo and Andrews in Palsgraf each have resolved this case, do you think?
Expand On Your Understanding – Socratic Script: Zokhrabov v. Park
Question 1. What are plaintiff’s and defendant’s main arguments, respectively?
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Question 2. How does the court frame the central legal question?
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Question 3. How does the court conduct its duty analysis? Does its analysis strike you as familiar from another context?
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Question 4. For what purpose does the court discuss the open and obvious doctrine?
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Question 5. Why does the court refuse to apply negligence per se?
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Question 6. How does the court frame its reasoning in terms of tort law’s purposes?
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Check Your Understanding (3-8)
Read this excerpt from a recent case in Connecticut reviewing its jury instructions and answer the questions below.
Connecticut Pattern Jury Instruction: Proximate Cause
Once you’ve gotten past factual causation, you need to address proximate cause. Proximate cause means that there must be a sufficient causal connection between the act or omission alleged, and any injury or damage sustained by the plaintiff.
An act or omission is a proximate cause if it was a substantial factor in bringing about or actually causing the injury. That is, if the injury or damage was a direct result, or a reasonable and probable consequence of the defendant’s act or omission, it was proximately caused by such an act or omission.
In other words, if an act had such an effect in producing the injury that reasonable persons would regard it as being a cause of the injury, then the act or omission is a proximate cause. In order to recover damages for any injury, the plaintiff must show by a preponderance of the evidence that such injury would not have occurred without the negligence of the defendant.
If you find that the plaintiff complains about an injury which would have occurred even in the absence of the defendant’s conduct, or is not causally connected to this accident, you must find that the defendant did not proximately cause that injury.
Under the definitions I have given you, negligent conduct can be a proximate cause of an injury, if it is not the only cause, or even the most significant cause of the injury, provided it contributes materially to the production of the injury, and thus is a substantial factor in bringing it about.
Therefore, when a defendant’s negligence combines together with one or more other causes to produce an injury, such negligence is a proximate cause of the injury if its contribution to the production of the injury, in comparison to all other causes, is material or substantial.
Question 1. What test does Connecticut appear to apply? You might take stock of how it has been modified, too.
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Question 2. The proximate cause jury instructions contain references to causation in fact (as many jury instructions do, combining both prongs in negligence’s causation analysis). Can you see where that language arises?
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Question 3. Setting aside jurisdictional differences, proximate cause is generally satisfied when:
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Question 4. Complete the sentence: The question of proximate cause goes to the jury ____.
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The next case involves an intersection of three areas or doctrines: proximate cause, res ipsa loquitur and the rescue rule. It provides helpful practice in seeing how courts apply each to the facts, often in light of conflicting priorities set out in the given doctrines. It may be helpful to know that professional rescuers and public-safety responders are barred, in many jurisdictions, from bringing a negligence action against a tortfeasor whose alleged conduct is the impetus for the rescue or bringing the officer to the scene of emergency where they were injured. Such rescuers cannot usually recover in negligence for liability for their injuries. The rationale is either that they may recover for injuries in workers’ compensation or that they assumed the risk (and perhaps higher pay) associated with this line of employment. This is often known as the firefighter rule (or the professional rescuer rule). Some states have eliminated the Firefighter’s Rule entirely, finding it to be an outdated concept that is unfair to emergency responders—for instance, Oregon abolished the Firefighter’s Rule by case law, see Christensen v. Murphy, 296 Or. 610 (Or., 1982), and New Jersey abolished it by statute, see New Jersey Public Statutes 2A:62A-21.
(697 N.W.2d 836)
“Danger invites rescue.”[1] A marine out for a drink at a Davenport bar rushed to the scene of a gas leak at a grill on the premises. While attempting to turn off two propane gas tanks, a grease fire reignited and he was badly burned. The district court dismissed the marine’s negligence claim against the bar. The court held as a matter of law the marine was solely to blame for his injuries. The court of appeals affirmed. Because a jury could find the bar’s negligence proximately caused the marine’s rescue attempt and injuries, we reverse the district court, vacate the court of appeals, and remand for a trial on the merits.
I. Facts
Late one Friday afternoon in the summer of 2002, James Clinkscales went to The Gallery Lounge, a Davenport pub. Approximately fifty people were there. Clinkscales, an active-duty marine in town as a recruiter, stationed himself at the bar next to a blonde woman known only as “Dimples.” The two began to share a pitcher of beer together.
On Fridays in the summer, The Gallery regularly grilled hamburgers outside and served them to its customers. The grill stood directly outside of the bar on a patio ten feet away from where Clinkscales and Dimples sat. Two tanks of propane gas placed underneath the grill fueled it. The grill was custom-made and large enough to grill twenty burgers at a time.
The Gallery employed Joe Moser to grill the burgers. The first batch of burgers Moser placed on the grill that evening were particularly greasy. When Moser flipped them over, a fire flared up on the grill. Moser did not consider this to be a problem. All of a sudden, however, Moser heard something abnormal—“a pop and a hiss.” A ball of fire erupted underneath the grill and engulfed the propane tanks.
Caroline Nelson co-owns The Gallery with her husband and regularly works there. When the fire started Nelson was standing at the patio door. Moser told Nelson to get a fire extinguisher. Nelson and Moser testified Nelson and other Gallery employees made general announcements to the patrons to leave and then one employee called the fire department. Clinkscales testified he was alerted to the fire when he saw Nelson come into the bar looking for a fire extinguisher, but did not believe Nelson said anything to him or anybody else about what was happening.
Nelson came back outside with a fire extinguisher and gave it to a patron. The patron extinguished the flame, and Moser managed to turn the knobs on the grill to *840 “the off” position. Moser could still smell gas escaping from the tanks, however, and Moser said aloud that he wanted to shut the tanks off. Moser pulled the grill away from a wall to access the tanks, but he found the valves were too hot to touch. There were customers in the patio and adjacent bar. Clinkscales came out to the patio and asked a man holding a fire extinguisher if anyone had turned the gas off. The man told Clinkscales the handle was too hot.
Clinkscales, who had received extensive training in fire suppression in the military, recognized the situation was “very dangerous.” Clinkscales took off his shirt, wrapped it around one of hands, and turned the gas off. No one asked Clinkscales to do so. He reacted instinctively:
[I]t’s like running after a kid when he runs into the street, you don’t think about it, that there’s a car coming, you just try to grab the child, and, you know, hope for the best. You could get killed doing it, but you just do it.
As Clinkscales was turning off the gas, the fire flared up. Clinkscales was burned on his face, neck, chest, arms, and legs.
Skin hanging from his arms, Clinkscales continued his rescue efforts by helping a frightened young woman in the patio over a fence. A frequent patron of the bar, a man named Norm, took Clinkscales to the hospital just as the fire department arrived.
II. Prior Proceedings
Clinkscales sued The Gallery for negligence. He claimed The Gallery owed him a duty of care as a business invitee. Clinkscales alleged The Gallery was specifically negligent because it (1) failed to properly design, manufacture, maintain, and operate the grill; (2) did not adequately train its employees in the use and maintenance of the grill; (3) did not have enough fire-suppression equipment and did not properly use the fire extinguishers it did have; and (4) did not have emergency procedures in place necessary to protect its customers. In the alternative, Clinkscales also pled res ipsa loquitur to show general negligence. Clinkscales contended that even if he could not prove the precise cause of the mishap, the defendants had exclusive control over the instrumentalities involved in the fire. [fn]
The defendants filed a motion for summary judgment, which the district court granted. As a matter of law the district court found employees of The Gallery told Clinkscales to evacuate the premises; there was no evidence there was imminent risk to life when he turned off the gas; and “a reasonable person would not determine that the benefits of approaching a fire outweigh the risk of being seriously burned or injured.” The district court ruled the defendants were not liable because (1) Clinkscales’s injuries were caused by a known and obvious danger and (2) the defendants’ alleged negligence was not the proximate cause of Clinkscales’s injuries. The court also concluded res ipsa loquitur was not applicable because grease fires can occur without negligence. The court of appeals affirmed. It declined to apply the rescue doctrine and held, as a matter of law, Clinkscales “suffers from a self-inflicted wound.”
III. Principles of Review [omitted]
IV. The Merits
A. The Rescue Doctrine
The rescue doctrine was forged at common law. It involves heroic people doing heroic things. The late Justice Cardozo aptly summarized the commonsense observations about human nature that led to the doctrine’s widespread recognition across this nation when he wrote:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path…. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.
Wagner v. Int’l Ry., 232 N.Y. 176, 133 N.E. 437, 437–38 (1921) (citations omitted). That is, those who negligently imperil life or property may not only be liable to their victims, but also to the rescuers. … *842 We have consistently and liberally applied the rescue doctrine in this state for over one hundred years. [***] Historically the doctrine arose in questions of proximate cause and contributory negligence. [c] “In other words, did the act of the injured [rescuer] so intervene as to break the chain of causation from [the] defendant’s negligence, or constitute such contributory negligence as to bar recovery?” [c] The general rule was a rescuer would not be deemed to have broken the chain of causation or charged with contributory negligence for reasonable attempts to save the life or property of another. [c] Since the advent of comparative negligence, the doctrine has only arisen on appeal in questions of proximate cause, i.e., when, as here, the defendant claims the rescuer’s actions were a superseding cause of the rescuer’s injuries. See, e.g., Hollingsworth, 553 N.W.2d at 598 (holding rescuer’s actions not a superseding cause).[2]
Proximate Cause
The Gallery contends its alleged negligence was not the proximate cause of Clinkscales’s injuries. The Gallery asserts the facts show its employees ordered patrons to leave the premises, it had called the fire department, and at the time of the rescue attempt Moser was retrieving a rag to turn off the propane valves. The court of appeals held as a matter of law that the rescue doctrine did not apply in this case because “no one was in any danger until the plaintiff placed himself there.”
*843 It is well settled that questions of proximate cause are, absent extraordinary circumstances, for the jury to decide. Iowa R.App. P. 6.14(6)(j); [c]. The line between what is sufficiently proximate and what is too remote is a thin one:
“If upon looking back from the injury, the connection between the negligence and the injury appears unnatural, unreasonable, and improbable in the light of common experience, such negligence would be a remote rather than a proximate cause. If, however, by a fair consideration of the facts based upon common human experience and logic, there is nothing particularly unnatural or unreasonable in connecting the injury with the negligence, a jury question would be created.” [c]
Here we are concerned with Clinkscales’s rescue attempt, which The Gallery characterizes as a “superseding cause” of his injuries. A superseding cause is an intervening force that “prevent[s] the defendant from being liable for harm to the plaintiff that the defendant’s antecedent negligence is a substantial factor in bringing about.” Id. (citing Restatement (Second) of Torts § 440 (1965) [hereinafter Restatement]).
When a rescue attempt is involved, matters are particularly thorny and a court should be especially wary to grant a defendant’s motion for summary judgment. [c] The rescue doctrine recognizes not all intervening forces are superseding causes:
If the actor’s negligent conduct threatens harm to another’s person, land, or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts.
Restatement § 445 (quoted in Hollingsworth, 553 N.W.2d at 598). That is, so long as the rescuer’s response is “normal,” the negligent actor will not escape liability for the rescuer’s injuries.
What are “normal” rescue efforts? Although in Hollingsworth we loosely characterized the question of “normal efforts” as one solely of foreseeability, see 553 N.W.2d at 598, in truth the term “normal” is not used “in the sense of what is usual, customary, foreseeable, or to be expected.” Restatement § 443 cmt. b; see also id. § 445 cmt. b. Rather, “normal” (referred to in our pre-Restatement cases as “natural”) is used as “the antithesis of abnormal, of extraordinary.” Restatement § 443 cmt. b.
[T]he only inquiry should be whether the conduct of the plaintiff was ‘natural’ under the circumstances, which is to be ascertained by a counter-chronological examination of the facts. Here the term ‘natural’ must be taken to embrace those qualities of human nature leading to risk-taking in an effort to preserve property, to rescue other persons, or to save oneself. It necessarily includes actions which these well recognized and familiar human feelings bring about. Thus ‘natural’ conduct includes not only cool and well-reasoned action but also the frantic, excited and apparently illogical movements which are too commonly exhibited by a large percentage of human beings in moments of stress.
In these situations, the defendant may negligently have exposed the person or property of another to unreasonable risk of loss or destruction. ‘Natural’ instincts will move some persons to make efforts at rescue. The movements of the rescuer may not be well judged and may result in harm either to the goods, to the person endangered by the defendant, or to the rescuer himself. In any *844 such case the defendant will be held liable, for the ‘natural’ conduct of the rescuer leaves no break or gap in the chain of causation.
Clayton v. Blair, 254 Iowa 372, 377-378 (1962); accord Restatement § 443 cmt. b.
What constitutes normal or natural conduct depends upon the circumstances and “is in most cases a question to be decided by the jury.” [cc] If the jury determines the rescuer’s actions are a normal or natural result of the defendant’s actions, the defendant’s actions were a proximate cause of the rescuer’s injuries.
We think the facts are sufficiently in conflict on the issue of proximate cause to warrant a jury determination. The dangers of fire and gas leaks are well known to all. See Johannsen, 232 Iowa at 807 (upholding jury instruction on rescue doctrine when plaintiff rushed onto defendant’s property to stop unattended gas leak; as plaintiff shut off valve, leak burst into flames severely injuring plaintiff); see also Von Tersch v. Ahrendsen, 251 Iowa 115, 120 (1959) (“The danger of fire is well-known to all.”). There is evidence the danger was imminent in this case, or at least apparently so. See Henneman, 260 Iowa at 72 (rescue doctrine applies not only when danger is imminent, but also when “the conduct of the rescuer is that of an ordinarily prudent person under existing circumstances”); accord Silbernagel v. Voss, 265 F.2d 390, 391–92 (7th Cir.1959) (approving of jury instruction that was “phrased to elicit an answer as to whether the situation … induce[d] a reasonable belief on part of [the] plaintiff that [the victim] was in imminent peril”); Wagner, 133 N.E. at 438 (refuting view that rescue doctrine should not apply when, in fact, rescue attempt was futile); cf. Fullerton v. Sauer, 337 F.2d 474, 482 (8th Cir.1964) (construing Iowa law to hold rescue doctrine did not apply when “only apparent or imminent danger” had passed).
This summary-judgment record shows customers, employees, and property of The Gallery were in the vicinity of the fire and subsequent gas leak. While it is undisputed employees of The Gallery called the fire department and asked some patrons to evacuate, a jury could find Clinkscales’s rescue efforts were a normal or natural reaction under the circumstances. He may have reasonably thought danger was imminent and, given his extensive training, his help was needed.
Exhortations to leave do not, as a matter of law, preclude liability in all cases. If a defendant sets into course a series of events that induces a rescue attempt, the defendant does not necessarily insulate itself from liability when it tells the rescuer to leave. In any event, in this case there is evidence no one effectively ordered Clinkscales to leave, and some evidence The Gallery enlisted the help of other customers to fight the fire. There is nothing inconsistent with an express general call to evacuate and an implicit individual invitation to help. Even if we were to assume Clinkscales was told to leave, however, this would be but one fact for the jury to consider in evaluating his rescue attempt.
We cannot say as a matter of law that the rescue doctrine does not apply to this case. A reasonable jury could find Clinkscales’s rescue of Gallery employees, customers, and property was an act done in normal or natural response to the fear or emotional disturbance caused by The Gallery’s negligence. Summary judgment on *845 the issue of proximate cause was not proper.
C. An Open and Obvious Danger is No Bar to Recovery
The district court and court of appeals applied the premises-liability law that persisted at common law and found Clinkscales was an invitee of The Gallery at the time the fire started. Under the common-law trichotomy of invitees, licensees, and trespassers, an invitee is a person “who is invited to enter or remain on land for the purpose directly or indirectly connected with business dealing with the possessor of land.” [c] Invitees are owed the highest standard of care under the trichotomy: the possessor of land is obligated to use ordinary care to keep the premises reasonably safe for invitees, to ascertain the actual condition of the premises, and to make the area reasonably safe or give warning of the actual condition and risks involved. Id.
The parties do not ask us to re-examine the merits of the trichotomy, which is presently one of the most unsettled and contentious areas of Iowa law. See Sheets v. Ritt, Ritt, & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa 1998) (four of nine members of court favored abolishing distinction between invitees and licensees); see also Anderson v. State, 692 N.W.2d 360, 367–68 (Iowa 2005) (use of invitee instruction instead of reasonable care instruction affirmed by operation of law); Alexander v. Med. Assocs. Clinic, 646 N.W.2d 74, 79–80 (Iowa 2002) (six of seven members of court declined to abolish common-law trespasser rule). No one challenges that Clinkscales was an invitee. Only a corollary of the common-law premises-liability law is implicated here. The defendants argue, and the lower courts held, the defendants owed no duty to Clinkscales as a matter of law because the fire and gas leak constituted a “known and obvious danger.” It is well settled that generally “[t]he possessor of land … is not liable when the injuries sustained by a business invitee were caused by a known or obvious danger.”
Clinkscales argues the open and obvious-danger principle does not apply in this case, and we agree. Fire and escaping gas is obviously dangerous. That is not in doubt. This is not your garden-variety premises-liability case, however—it involves an attempted rescue. Absent imminent danger or the appearance thereof, the rescue doctrine is not applicable. See, e.g., Weller v. Chi. & Northwestern R.R., 244 Iowa 149, 152, 55 (1952) (without imminent danger to child rescue doctrine inapplicable); Klunenberg, 256 Iowa at 740 (similar case involving cow in cemetery); cf. Fullerton, 337 F.2d at 482 (applying Iowa law and concluding rescue instruction not proper for injuries sustained after rescue completed and when no further apparent or imminent danger to life or property).
In a rescue case such as this, it is axiomatic that the danger approached is obviously dangerous. See, e.g., Hollingsworth, 553 N.W.2d at 598 (rushing into burning station wagon in victim’s garage); Clayton, 254 Iowa at 378–79 (remaining in burning apartment building to help others); cf. Kester v. Bruns, 326 N.W.2d 279, 283 (Iowa 1982) (holding rescue instruction not warranted because “it was unreasonable as a matter of law for [the plaintiff] to risk his life to prevent the remote possibility of some harm befalling his \$90 pool cue”).
Danger invites the rescue. To rule the presence of a known and obvious dangerous condition would, as a matter of law, negate any duty to invitee— *846 rescuers would completely eviscerate the rescue doctrine where the rescuer happened to be an invitee of the defendant when the condition first occurred. The “open-and-obvious-danger” rule is not absolute. See Restatement § 343A cmt. f (carving out an exception “where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantage of doing so would outweigh the apparent risk”) [c].
We have not accepted similar arguments in previous cases. For example, in Johannsen, the plaintiff saw a gasoline spill in the defendant’s railroad yard. 232 Iowa at 807. The plaintiff ran onto the defendant’s property to stop the spill and suffered severe burns. He sued the landowner for negligence and pled rescue. The defendant argued it did not owe the plaintiff a duty of care because he was a trespasser. We held the plaintiff’s status as a trespasser was irrelevant because he was in a place where he had a right to be when the danger occurred. Id. at 812. The pertinent question was not whether the plaintiff trespassed upon the defendant’s land to effectuate the rescue, but rather whether the negligent acts of the defendant caused a danger that proximately caused the plaintiff’s rescue attempt. Id.; see also Clayton, 254 Iowa at 378 (rescuer “not regarded as a trespasser” for entering land of another to attempt rescue). Likewise, in the case at bar, it does not matter that Clinkscales was an invitee and that the grease fire and gas leak constituted an “open and obvious danger.” See Johannsen, 232 Iowa at 811 (remarking that the mere fact the plaintiff voluntarily encountered a known danger is not always a bar to recovery). The issue is whether the defendant’s alleged negligent acts proximately caused Clinkscales’s rescue attempt. If trespassers are not precluded as a matter of law from seeking recovery in rescue cases, nor should invitees simply because the danger encountered is a “known and obvious danger.”
D. Negligence
In the alternative, The Gallery argues that even if it owed Clinkscales a duty of care, it did not breach that duty. The district court ruled the defendants were not negligent, as a matter of law, because they asked patrons to leave, called the fire department, and used fire extinguishers. The defendants also point out they have operated the grill for fifteen years without incident and took “precautions to ensure the utmost safety.”
We cannot say as a matter of law that The Gallery was not negligent as alleged in Clinkscales’s petition. Questions of negligence are ordinarily reserved for the jury, and only in extraordinary cases is summary judgment proper. Iowa R.App. P. 6.14(6)(j) [cc] There is testimony the defendants did not clean the grill regularly or sufficiently train their employees in grill cleaning. For example, one of the hoses leading from the propane tanks to the grill had a small “burn hole” in it. There is also evidence Moser permitted the grease fire to persist too long, at times unattended, until it became too large to contain. A jury could also find the defendants did not keep the appropriate type of fire-suppression equipment near the grill. A jury should decide whether The Gallery was negligent, and whether this negligence caused the grease fire, subsequent gas leak, and injuries to Clinkscales.
*847 E. Res Ipsa Loquitur
Res ipsa loquitur (Latin for “the thing speaks for itself”) is a type of circumstantial evidence. Brewster v. United States, 542 N.W.2d 524, 529 (Iowa 1996). In Iowa, res ipsa loquitur applies in negligence cases when
(1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things would not happen if reasonable care had been used. [cc]
Res ipsa loquitur permits a jury to circumstantially “infer the cause of the injury from the naked fact of injury, and then to superadd the further inference that this inferred cause proceeded from negligence.” [c] A jury is not required to draw the inference. [c] Nor must a plaintiff “eliminate with certainty all other possible causes or inferences.” “The jury simply weighs the circumstantial evidence but in the end may or may not accept it as sufficient as to negligence or causation.” In Iowa, we permit the plaintiff to plead res ipsa loquitur in addition to specific negligence as an alternate theory of the case. Clinkscales did precisely this in his petition. Ordinarily the two theories are submitted to the jury together. If the jury finds for the plaintiff on a specific negligence basis, however, it should not entertain res ipsa loquitur. [cc]
For good reasons, the defendants do not deny the grill was in their exclusive control. Instead, they claim res ipsa loquitur does not apply in this case because a grease fire could happen in the absence of any negligence. Both the district court and court of appeals held the res-ipsa loquitur doctrine was not applicable to this case because grease fires can happen in the absence of a negligent act.
We disagree. The foregoing analysis improperly frames the question. The issue in this case is not simply whether a grease fire could happen in the exercise of ordinary care, because the “occurrence” in this case was not just a grease fire. After all, when Clinkscales approached the grill, the fire was extinguished. The problem was that gas was leaking from the propane tanks, and it appeared reignition of the fire might prove disastrous. Moser testified he heard an abnormal “pop and hiss” come from the grill before the grease fire spread to the tanks. We have repeatedly held the res-ipsa-loquitur doctrine may be applicable in gas leak cases. …see also Jay M. Zitter, Annotation, Res Ipsa Loquitur in Gas Leak Cases, 34 A.L.R.5th 1, 14 (1995) (recognizing “it is clear that in the ordinary course of things gas explosions will not occur, so that when one does occur, an inference of negligence may be reasonable and justifiable”). There is nothing exceptional about this case which indicates that this particular gas leak would ordinarily occur in the absence of negligence. Genuine issues of material fact exist, and therefore the district court erroneously excluded application of res ipsa loquitur from the case. Indeed, to rule otherwise would require Clinkscales to prove the precise cause of his injuries— *848 thus depriving him of the doctrine’s benefit. [c]
Even if we were to ignore the leaking gas, it should be noted that courts have often applied the doctrine of res ipsa loquitur in actions against the occupant of a premises for personal injury caused by fire—including grease fires. See, e.g., Aetna Cas. & Sur. Co. v. Brown, 256 So.2d 716, 718 (La.Ct.App.1971) (holding res ipsa loquitur applicable to grease fire); see also 35A Am.Jur.2d Fires § 59 (2001). In the ordinary course of things, grease fires do not occur in the absence of negligence and cannot occur unless the party in exclusive control does something or fails to do something an ordinary person would do under the circumstances. Grease fires do not just happen.
V. Conclusion
Summary judgment was not proper. This case is remanded for a trial on the merits. Decision of Court of Appeals Vacated; District Court Judgment Reversed; Remanded.
STREIT, Justice (specially concurring in part and dissenting in part).
I concur to the extent that I believe this rescuer deserves his day in court. The mere fact Clinkscales approached an open and obvious danger is not an absolute bar to recovery; rescue clearly presupposes danger or the appearance thereof. Cf. Johannsen, 232 Iowa at 811–12. I respectfully dissent, however, because I believe the majority wrongly permits Clinkscales to pursue a res-ipsa-loquitur theory. In doing so, the majority stretches that venerable doctrine far beyond its proper boundaries.
As the majority correctly points out, in Iowa res ipsa loquitur applies if (1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things would not happen if reasonable care had been used. Novak, 622 N.W.2d at 498.
Because Clinkscales has not presented any evidence of either element, I would affirm the district court and court of appeals on this issue.
No Exclusive Control
It is conceded The Gallery had exclusive control of the grill at the time of the accident. On the facts of this case, however, this is insufficient in itself to warrant a res ipsa-loquitur instruction. Exclusive control must be shown at the time of the alleged negligence, which is not necessarily the time of injury. [cc] As we recently stated,
The plaintiff need only show that the defendant controlled the instrumentality at the time of the alleged negligent act…. The “exclusive control” requirement is simply another way of saying that the injury must be traced to a specific instrumentality or cause for which the defendant was responsible *849 … Where causes for the injury other than a defendant’s negligence are equally probable, there must be evidence which will permit the jury to eliminate them. This means, for example, that a plaintiff injured by the explosion of a beer bottle purchased from a retailer will be required to make some sufficient showing that the bottle was not cracked by mishandling after it left the defendant’s plant. Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 832 (Iowa 2000) (citations, internal quotations, and emphasis omitted).
The record before us shows, in undisputed fashion, that several parties other than the defendants played a role that gave rise to the state of the grill as it malfunctioned on the date of Clinkscales’s injuries. The defendants special ordered the grill from two local men, who built it from standard parts. After the defendants purchased the grill, they regularly had the propane tanks switched out at a local filing station. This filling station also periodically replaced the devices that connected the tanks to the hoses that led to the grill, because the connections on the tanks themselves would change from time to time. Any of these parties, as well as any of the manufacturers of any of the parts they built, used, or serviced, could have performed a negligent act leading to Clinkscales’s injuries. The same could be said for the patron extinguishing the fire. Without proving the cause of the fire, Clinkscales has presented no evidence that would permit a jury to eliminate any of these equally potentially negligent parties. Therefore res ipsa loquitur is inapplicable, and the district court and court of appeals were correct to strike this theory from Clinkscales’s pleadings.[3]
Grease Fires Happen
Nor has Clinkscales shown the grease fire was such that in the ordinary course of things it would not have happened if reasonable care had been used. As the district court and court of appeals both pointed out, grease fires commonly occur in the absence of negligence.
The classic English case of Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863), perhaps best illustrates the sorts of cases in which res ipsa loquitur properly applies, and how it works. In Byrne, a barrel of flour fell on the plaintiff, who was walking next to the defendant’s shop. 159 Eng. Rep. at 299. Although one could readily infer the barrel came from the defendant’s shop, the plaintiff could not show precisely how the defendant was negligent. Id. Nonetheless, the court thought the accident “spoke for itself” and therefore held *850 the defendant was negligent, albeit in some unspecified way. Id. at 301.
The case at bar is manifestly unlike Byrne. Grease fires—unlike barrels of flour falling from the sky—occur in the absence of negligence. Put simply, res ipsa loquitur should not apply here because this is not the sort of case for which the doctrine was designed. In holding to the contrary, the majority stretches res ipsa loquitur beyond its proper scope.
Note 1. What do you notice about the court’s narration of the facts? What do we know about the various parties and their attributes?
Note 2. How do the majority and dissenting opinions differ with respect to their views of RIL?
Note 3. What differentiates an intervening force from a superseding cause? Does this distinction seem to you to lead to an analytic conclusion or to require one? The Restatement (Second) of Torts § 440 defines a superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.”
The next case explores superseding cause analysis in more depth.
(148 Pa. Cmwlth. 494)
*496 This personal injury action arises from an automobile accident which occurred in the City of Philadelphia on September 20, 1985. Saramma Chacko and Celinamma John were passengers in an automobile operated by defendant Ruby Matthews (Matthews). Matthews, who suffers from diabetes, lost consciousness and then control of the vehicle. The vehicle left the roadway and struck a utility pole owned by defendant Philadelphia Electric Company (PECO). Liability was asserted against the City on [various theories on which the trial court granted the City’s motion for summary judgment]. [***] “…A trier of fact could not reasonably conclude that any action of the City was a contributing factor to Plaintiffs’ injuries, given that the driver had no control over his [sic] vehicle at all.” Trial Court Opinion at 2–3. [***]
Assuming arguendo that the acts and omissions alleged against the City were legal causes of Appellants’ injuries, the proper inquiry is whether the subsequent loss of consciousness suffered by Matthews was an intervening cause, which would not absolve the City of liability, or a superseding cause, which would. See Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241 (1983). The Restatement (Second) of Torts (Restatement 2d) defines a superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Restatement 2d § 440. Among the factors to consider in determining whether a subsequent force is an intervening or superseding cause are whether the force is operating independently of any situation created by the first actor’s negligence and whether it is or is not a normal result of that situation. Restatement 2d § 442(c).
In Vattimo, the Supreme Court quoted with approval this court’s analysis of superseding causes:
[E]ven where an intervening act is wrongful it does not become a superseding cause unless, looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable. *500 502 Pa. at 253 (quoting 59 Pa. Commonwealth Ct. 1, 9–10 (1981)). Matthews’s loss of consciousness was indeed extraordinary and not reasonably foreseeable. It operated independently of, and cannot be said to be a normal result of, any situation created by the City’s purported acts and omissions.
Accordingly, we hold that the trial court did not err or abuse its discretion in concluding that the driver’s loss of consciousness was a superseding cause of Appellants’ injuries and in granting summary judgment on that basis.[4]
For the foregoing reasons, the order of the trial court is affirmed.
Note 1. Why does the court assume, “arguendo” that the city’s alleged acts of negligence were the legal causes of appellants’ injuries and what do they mean in describing the alleged acts in that way?
Note 2. Do the Restatement’s factors for determining whether a force is intervening or a superseding cause test seem straightforward to apply? Restatement (Second) of Torts § 440: “Among the factors to consider in determining whether a subsequent force is an intervening or superseding cause are whether the force is operating independently of any situation created by the first actor’s negligence and whether it is or is not a normal result of that situation. Restatement (Second) of Torts § 442(c).
Note 3. As with proximate cause more generally, analysis to determine superseding causation exists primarily to limit liability. Thus third parties who act and create harms due to the original tortfeasor’s conduct do not usually sever the chain of causation: “If the actor’s negligent conduct threatens harm to another’s person, land, or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts.” Restatement (Second) of Torts § 445. How far should this rule extend? What are “normal efforts”? Recall the discussion in Clinkscales distinguishing normal from extraordinary circumstances.
Check Your Understanding (3-9)
Question 1. The purposes of the rescue doctrine are to:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. In which of the following scenarios is the rescuer least likely to be able to apply the rescue doctrine:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 3. True or false: In a circumstance in which antecedent (prior) negligence has taken place, a later superseding cause effectively immunizes, or at least limits, the antecedent defendant from liability for the harmful consequences of the superseding cause.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Negligence: Harm
As you have seen, plaintiffs must prove all four elements of negligence—duty, breach, causation and harm—and some kinds of harm are not cognizable, such as purely economic losses and emotional distress absent particular qualifying circumstances. However, physical injuries and property losses as well as the related expenses to treat or repair the damage wrought by a negligent tortfeasor’s conduct will generally satisfy this element. A separate module on damages works through the relevant doctrines in greater detail.
A key distinction between tort’s regimes is that plaintiffs need to prove harm with respect to negligence and strict liability claims but they need not prove harm for several of the intentional torts, namely battery, assault, false imprisonment, conversion and trespass to land. A plaintiff’s damages award will be correspondingly lower when they cannot prove that those intentional torts have left lasting harm but the liability claim does not depend on proof of harm the way it does for negligence and strict liability claims. The invasion of the interest is the harm. Recall that for trespass to chattels, a plaintiff does have to prove harm as part of the prima facie case for liability. For IIED, a plaintiff must not only prove harm but a heightened level of harm: severe emotional distress.
1. Wagner v. Int’l Ry., 232 N.Y. 176, 133 N.E. 437, 437 (1921) (Cardozo, J.).
2. In Saylor, we apparently held the rescue doctrine did not apply when the rescuer was injured saving a person who had negligently imperiled himself. Courts and commentators alike have roundly criticized this decision. See W.C. Crais III, Annotation, Rescue Doctrine: Negligence and Contributory Negligence in Suit by Rescuer Against Rescued Person, 4 A.L.R.3d 558, 559–60 (1965) (stating all subsequent courts, commentators, and the authors of the Restatement have chosen not to follow Saylor, which is “the only authority” barring recovery in so-called first-party rescue cases; noting also that “it does not seem likely that future courts will see fit to revive its teachings”); see also Sears v. Morrison, 76 Cal.App.4th 577 (1999) (severely criticizing Saylor; noting court could find “no case following Saylor”); Britt v. Mangum, 261 N.C. 250, 252 (1964) (Saylor “has not met with favor in other jurisdictions, but instead, when it has been pressed, it has been almost invariably rejected.”); Restatement (Second) of Torts § 445 cmt. d (1965) (rejecting Saylor analysis). It appears we overruled Saylor sub silentio in Hollingsworth. 553 N.W.2d at 598.
3. As a related matter, it should be remembered that res ipsa loquitur is not applicable simply because Clinkscales may not be able to show which specific acts of negligence caused his injuries. As one noted commentator has pointed out, res ipsa loquitur is sometimes invoked needlessly and inappropriately. If the trier can infer that the defendant was probably guilty of one of several specific acts of negligence but cannot be sure which act it was, res ipsa [loquitur] is not properly involved.... Although the jury might not be sure which of these negligent [acts] occurred, if it can conclude that one of them did, then the case is merely one of ordinary circumstantial evidence.... When courts speak of res ipsa loquitur in cases like this perhaps no harm is done, but they risk confusing the process of inferring specific negligent acts with the process of estimating the probability of unknown acts of negligence. 1 Dan B. Dobbs, The Law of Torts § 154, at 372–73 (2001) (footnote omitted). While Clinkscales has presented a number of independent theories as to how the defendants were negligent and should be permitted to make his case to the jury on each, res ipsa loquitur is not available simply because there is uncertainty at this stage in the proceedings about which particular theory may win the day. The majority’s decision falls into precisely this trap.
4. In general, the issue of whether a given force is a superseding or intervening cause is a question to be resolved by the fact finder. However, in cases where a jury may not reasonably differ, it is proper for the court to make a determination of causation. Vattimo, 502 Pa. at 247, 465 A.2d at 1234; Restatement 2d § 434. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/03%3A_Negligence/3.08%3A_Negligence-_Foreseeability_in_Duty_and_Proximate_Cause_Analysis_%28Socratic_Script%29.txt |
1. Assumption of the Risk
Focusing on the plaintiff’s conduct first, there are three main categories: assumption of the risk, contributory negligence, and comparative negligence. Focusing on assumption of the risk, you will see that it falls into two (or more) categories: express and implied assumption of the risk. Express assumption of the risk involves waivers of liability or clear assent to the risks while implied assumption of the risk is often described in terms of the duty (or limits on the duty) of the defendant, based on the plaintiff’s willing participation in something risky. There are two types of implied assumption of the risk (primary assumption of the risk and secondary assumption of the risk), and some courts have drilled even further into those. As you will see, these gradations pertaining to plaintiffs’ behavior will pull us ever deeper into the world of tort law’s defenses and, in particular, the complex terrain of comparative fault.
Keep in mind that the theory behind assumption of the risk is somewhat like the theory of consent, wherever you see it substantively in other doctrines. If you decide you want to be adventurous, according to tort law, the law should allow you to do so. But then, it also will hold that your ability to sue for injuries incurred during the adventure will be limited in significant ways. The law has developed these limitations on liability and related doctrines over time, and while there are many contexts for this discussion, we will begin with one singled out by Justice Cardozo.
With apologies for the way in which tort law just continues to rain on every parade, our next case directs our attention to the serious risks associated with injuries at amusement parks, in the context of defenses to negligence. As a treatise on tort law writes, there are many:
injuries suffered by riders on amusement park attractions, including the traditional mechanical rides common at carnivals and amusement parks, and the various water slides and raft rides that now proliferate at theme parks. A patron on such a ride may be injured in a great number of ways. Cases … involve patrons injured in the apparently normal course of a ride, in which case the design of the ride becomes the primary issue. In addition, cases often include some combination of allegations that rides were negligently maintained or operated, or that patrons were not adequately protected from negligent spectators. 16 Causes of Action 2d 1 (Originally published in 2001)
There are spinal injuries, many broken bones and injuries, severed thumbs (why must there be so many severed thumbs?) as well as the occasional death by drowning, electrocution, alligator attack or other catastrophic injury. The injuries are tragic, yet thankfully, very infrequent, unless you’re at Action Park, apparently. Action Park was a notorious amusement park and tort magnet that people who came of age in the 1980s on the East Coast remember fondly.
Here are some sources to explore on the topic:
“Defunctland: The History of Action Park” (17-minute video):
https://www.youtube.com/watch?v=flkW-ceNvck
Trailer for the documentary “Class Action Park” (2020) (2-minute video):
https://www.classactionpark.com/
Interview with Director of “Class Action Park” (5-minute video):
https://www.youtube.com/watch?v=g1i4zA5RjaE
For further reading about Action Park if you’re curious:
https://www.njherald.com/article/20140609/NEWS/909029323
https://weirdnj.com/stories/action-park/
These sources document how dangerous Action Park was. While it was unusually dangerous—deadly, even—it was not unique in regularly exposing visitors to considerable risks of injury in an industry that was not thoroughly regulated. Today, other amusement parks remain open, subject to various regulations, statutes, and of course, tort liability. If you have ever been into an amusement park, you know why they are still open. Either you had a great time (for at least a part of your time there) or you observed how much fun others were having. Indeed, people pay a lot of money and brave long lines, sunburns, loud noises, absurdly expensive sub-par food, and yes, very real risks of injury. Visitors are clearly flocking to parks (at least in non-pandemic times) of their own volition. (Full disclosure: “visitors… flocking” includes this author; we have an annual family trip that has often featured a trip to the local amusement park).
But at what point, if any, do these parks and their activities become too risky to allow? To what extent, normatively, should the law impinge on the autonomy of thrill-seekers who may be perfectly aware of the risks and simply wish to assume them, thank you very much? In the case of those who went to Action Park, as you saw in the videos linked above, the very point of the fun was the genuine danger. Tort law’s purposes, if we include the ideas of autonomy, consent and choice, are very much in tension in the context of allowing but still regulating adventurous activities that can tend to produce frequent or severe injuries, or both. Often, the difficult questions will be the scope of the risk assumed and the gradations of negligence in the conduct of those running the dangerous or risky activity.
(250 N.Y. 479) (Justice Cardozo)
The defendant, Steeplechase Amusement Company, maintains an amusement park at Coney Island, New York. One of the supposed attractions is known as “The Flopper.” It is a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring *481 beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power.
Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as every one understood, than the slowly-moving escalator that is common in shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiff’s wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. “I took a chance,” she said when asked whether she thought that a fall might be expected.
Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee cap. He states in his complaint that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a fast and dangerous rate of speed and was not supplied with a proper railing, guard or other device to prevent a fall therefrom. No other negligence is charged.
*482 We see no adequate basis for a finding that the belt was out of order. It was already in motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such circumstances by the addition of the facile comment that it threw him with a jerk. One who steps upon a moving belt and finds his heels above his head is in no position to discriminate with nicety between the successive stages of the shock, between the jerk which is a cause and the jerk, accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power was transmitted smoothly, and could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere descriptive epithet, a summary of the sensations of a tense and crowded moment … But the jerk, if it were established, would add little to the case. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen…
Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball *483 … The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
A different case would be here if the dangers inherent in the sport were obscure or unobserved (Godfrey v. Conn. Co., supra; Tantillo v. Goldstein Bros. Amusement Co., 248 N. Y. 286), or so serious as to justify the belief that precautions of some kind must have been taken to avert them (cf. O’Callaghan v. Dellwood Park Co., 242 Ill. 336). Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe. A different case there would also be if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change. The president of the amusement company says that there had never been such an accident before. A nurse employed at an emergency hospital maintained in connection with the park contradicts him to some extent. She says that on other occasions she had attended patrons of the park who had been injured at the Flopper, how many she could not say. None, however, had been badly injured or had suffered broken bones. Such testimony is not enough to show that the game was a trap for the unwary, too perilous to be endured. According to the defendant’s estimate, two hundred and fifty thousand visitors were at the Flopper in a year. Some quota of accidents was to be looked for in so great a mass. One might as well say that a skating rink should be abandoned because skaters sometimes fall.
*484 There is testimony by the plaintiff that he fell upon wood, and not upon a canvas padding. He is strongly contradicted by the photographs and by the witnesses for the defendant, and is without corroboration in the testimony of his companions who were witnesses in his behalf. If his observation was correct, there was a defect in the equipment, and one not obvious or known. The padding should have been kept in repair to break the force of any fall. The case did not go to the jury, however, upon any such theory of the defendant’s liability, nor is the defect fairly suggested by the plaintiff’s bill of particulars, which limits his complaint. The case went to the jury upon the theory that negligence was dependent upon a sharp and sudden jerk.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.
Note 1. “The timorous may stay at home” has to be one of the top 20 phrases ever published in an opinion on tort law. Its durability may be due in part to its use of the unusual word “timorous” (fearful) which Cardozo uses, somewhat obnoxiously, to classify people who don’t seek thrills on roller-coasters. But it is also likely memorable for the tough love Cardozo seems to be showing towards those who willingly seek thrills. His point is the willing cannot recover for injuries caused by the things they willingly did (“volenti non fit injuria”). In one sense, this merely mirrors the ideas of bodily autonomy that undergird the tort of battery, as you saw earlier in the term. It is a form of aligning liability with the concept of consent. In another sense, however, it is creating a contract-like principle: if you agree to subject yourself to certain risks, you must be held to that earlier agreement.
Note 2. If the rationale is that the rider of “The Flopper” assumed the risk of falling, is an unforeseen and unexplained jerk caused by the machine the same kind of risk young Mr. Murphy assumed? In your mind, is this more properly a question of duty or proximate cause? A question of law or of fact, in other words?
Note 3. How far should assumption of the risk be allowed to go, from a policy perspective? On Friday, October 30, 2020, a news story reported that a man who had specially paid to spend time with a leopard was mauled and severely injured:
https://fox8.com/news/man-mauled-after-paying-for-full-contact-leopard-experience-in-florida/
If we assume that strict liability is applicable to any conduct involving wild animals, does it make sense to allow entities to “contract around” the harm they might suffer? More generally, should waivers of liability be allowed to limit possible tort liability, thus turning this domain into one governed by contract, rather than tort law? Why or why not? What are the costs and benefits of allowing waivers of liability? What alternatives exist?
Release of Liability and Express Assumption of the Risk
The next two cases present different resolutions of disputes over waivers of liability for Scuba diving lessons. As you read them, consider what distinguishes them as well as the common threads that run through them.
(71 Wash. App. 657)
This is a wrongful death action arising out of a scuba diving accident. The court dismissed the defendants on summary judgment after finding the decedent Peter Boyce had released them from liability and assumed all risks associated with the scuba diving course he was taking. Iris Boyce appeals, contending the liability releases that her son signed did not cover instructor James West and should not be enforced as to Gonzaga University as a matter of public policy. Mrs. Boyce further contends there are genuine issues of material fact as to whether Mr. West was grossly negligent and whether her son assumed the risk of negligent instruction and supervision by Mr. West. We affirm.
Mr. Boyce was a student at Gonzaga University. In the spring of 1988, during his freshman year, he enrolled in Scuba Diving 1, an introductory scuba diving course offered as a physical education elective. At the beginning of the course he signed documents entitled PADI[1] Standard Safe Diving Practices Statement of Understanding”, “PADI Medical Statement”, and “Affirmation and Liability Release”. The latter document purported to release Down Under Divers and PADI from all liability for negligence and to affirm Mr. *660 Boyce’s full assumption of all risks associated with the program. Mr. Boyce successfully completed the course, taught by Down Under Divers’ employee John Miller; he earned an A and received one credit. All dives took place in the school’s swimming pool.
During the summer, Mr. Boyce became a certified scuba diver after completing at least four open-water dives with an independent certifying authority. Certification was a prerequisite for taking the advanced scuba diving course (Scuba Diving 2) offered by Gonzaga. In the fall of 1988, Mr. Boyce enrolled in Scuba Diving 2, which was taught by James West, an adjunct instructor at Gonzaga and owner of Down Under Divers. At the first class on September 5, Mr. Boyce again signed documents entitled “PADI Standard Safe Diving Practices Statement of Understanding”, “PADI Medical Statement”, and “Affirmation and Liability Release”. The forms were not identical to those he had signed for the beginning course, but were substantially similar. This time the release named PADI and Gonzaga University.
By November 27, 1988 Mr. Boyce had successfully completed three of the five specialty dives planned for the course. He died that day during the fourth dive, a deepwater dive in Lake Coeur d’Alene. The diving group consisted of instructor West, Mr. Boyce, and two other students, Steve Kozlowski and John Sterling. The dive required the use of dry suits, so they had spent several hours the day before learning to use them. During the dive the divers descended 80 to 100 feet along an anchor line to the bottom of the lake, then swam 10 to 15 feet to a wreck. There, Mr. West checked his students’ air supplies. Concerned that they were running low on air because Mr. Kozlowski and Mr. Boyce both registered only 800 pounds of air, one-half of the amount they started with, he signaled the group to return to the anchor line and ascend to the surface. When they got back to the anchor line, Mr. Kozlowski indicated he was very low on air: he had just 100 *661 pounds of air left. As Mr. West turned to check on Mr. Sterling and Mr. Boyce, Mr. Kozlowski tugged at him, panicked over lack of air. Mr. West immediately gave Mr. Kozlowski his alternate regulator and assisted him to the surface, buddy breathing along the way. In the emergency, he lost sight of Mr. Boyce. Mr. West next saw Mr. Boyce floating on the surface. Resuscitation efforts were unsuccessful; Mr. Boyce died of air embolism resulting from too rapid an ascent.
Iris Boyce, as personal representative of her son’s estate, sued Mr. West and Gonzaga for wrongful death. The complaint asserts Mr. West negligently caused Mr. Boyce’s death and Gonzaga is vicariously liable for the negligence of its agent. The defendants denied negligence and asserted as alternative affirmative defenses the release of liability[2] and assumption of risk[3] provisions contained in the documents signed by Mr. Boyce.
Mr. West and Gonzaga moved for summary judgment. Mrs. Boyce resisted the motion and submitted parts of a deposition of Charles R. Lewis, a dive master, in which Mr. Lewis expresses his opinion that Mr. West was negligent in his instruction and supervision of the students. Mr. Lewis did acknowledge that with the 50 pounds of air Mr. Boyce still had when he reached the surface, he would have had enough air had he continued to exhale on the way up, and that free ascents have been made from greater depths. By memorandum decision entered April 15, 1992, the court granted the motion for summary judgment.
RELEASE OF LIABILITY
Mrs. Boyce first contends neither of the releases of liability signed by Mr. Boyce cover Mr. West. We agree the spring release does not apply to Mr. West,[4] and conclude the fall release does.
A release is a contract in which one party agrees to abandon or relinquish a claim, obligation or cause of action against another party. [c] As a contract, a release is to be construed according to the legal principles applicable to contracts. [c] Exculpatory clauses are strictly construed and must be clear if the release from liability is to be enforced. [c]
The fall release, signed September 5, 1988, names only Gonzaga and PADI. Mrs. Boyce concedes it releases Gonzaga from liability unless a public interest is involved. The release does not name Mr. West, but it is undisputed that Mr. West was Gonzaga’s employee. The general rule is that a pre-injury release of the employer from liability also releases the employee.[5]
Restatement (Second) of Agency § 347(2) & comment *663 b (1958); [c]. [***] Mr. West, as an employee of Gonzaga, was covered by the agreement releasing Gonzaga from liability for negligent harm to Mr. Boyce.
Mrs. Boyce next contends the release of Gonzaga from liability violates public policy and should not be enforced. In Washington, contracts of release of liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wash.App. 72, 521 P.2d 244, review denied, 84 Wash.2d 1007 (1974).
Wagenblast v. Odessa Sch. Dist. 105–157–166J, 110 Wash.2d 845, 758 P.2d 968, 85 A.L.R.4th 331 (1988) sets forth six factors, taken from Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693 (1963), which are to be considered in determining whether exculpatory agreements violate public policy. The court considers whether
(1) the agreement concerns an endeavor of a type *664 generally thought suitable for public regulation;
(2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public;
(3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards;
(4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services;
(5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and
(6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. Wagenblast, 110 Wash.2d at 851–55, 758 P.2d 968.
Those factors are not present here. As noted in Hewitt, 11 Wash.App. at 74, 521 P.2d 244, “[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty….” Accord, Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 574, 636 P.2d 492 (1981), review denied, 96 Wash.2d 1027 (1982), in which the court noted: “Although a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest….”
Madison v. Superior Court, 203 Cal.App.3d 589, 250 Cal.Rptr. 299 (1988) is a factually similar case arising out of the death of a student enrolled in a scuba diving course offered through the YMCA. The Madison court applied the Tunkl factors and concluded a release signed by the scuba student did not involve a public interest. It then observed, in words that apply to this case as well:
Here, [decedent] certainly had the option of not taking the class. There was no practical necessity that he do so. In view of the *665 dangerous nature of this particular activity defendants could reasonably require the execution of the release as a condition of enrollment. [Decedent] entered into a private and voluntary transaction in which, in exchange for an enrollment in a class which he desired to take, he freely agreed to waive any claim against the defendants for a negligent act by them. This case involves no more a question of public interest than does motorcross racing, sky diving, or motorcycle dirtbike riding. (Citations omitted.) Madison, 250 Cal.Rptr. at 305–06.
We do not find a public interest in a private school[6] offering scuba diving instruction to qualified students as an elective course. Upholding the release of Gonzaga does not violate public policy.
Mrs. Boyce further contends there are issues of material fact whether the defendants were grossly negligent. If Mr. West’s negligent acts fell greatly below the standard established by law for the protection of others against unreasonable risk of harm, the releases are unenforceable. Blide, 30 Wash.App. at 573.
A defendant who can point out to the trial court that the plaintiff lacks competent evidence to support an essential element of the plaintiff’s case is entitled to summary judgment because a complete failure of proof concerning an element necessarily renders all other facts immaterial. […] Evidence of negligence is not evidence of gross negligence; to raise an issue of gross negligence, there must be substantial evidence of serious negligence. Nist v. Tudor, 67 Wash.2d 322, 332 (1965). Since a release of liability exculpates ordinary negligence, if it occurs, the plaintiff must establish gross negligence affirmatively to avoid enforcement of the release.
Mrs. Boyce neither alleged gross negligence in her complaint, nor amended it to make that allegation, nor provided *666 the court with any evidence supporting an allegation of gross negligence. The only evidence of any degree of negligence presented by Mrs. Boyce consists of excerpts of the deposition testimony of her expert, Mr. Lewis. In those excerpts, Mr. Lewis expresses his opinion that Mr. West was negligent. However, as the trial court found, nothing in Mr. Lewis’ testimony supports Mrs. Boyce’s assertion that Mr. West was grossly negligent. Mrs. Boyce’s allegation, supported by nothing more substantial than argument, is insufficient to defeat a motion for summary judgment. CR 56(e); Guile, 70 Wash.App. at 25. Because there was no material issue of fact as to the existence of gross negligence, an essential element for avoidance of the release of liability, summary judgment was proper.
ASSUMPTION OF RISK
Mrs. Boyce, in response to respondents’ alternative defense, also contends her son did not assume the risk of negligent instruction and supervision. She argues assumption of the risk, whether express or primary implied, bars recovery only for injuries resulting from known risks voluntarily assumed. Kirk v. WSU, 109 Wash.2d 448, 453–54 (1987) and cases cited therein. Thus, to the extent Mr. Boyce’s death resulted from other unknown risks, created by the defendants, Mrs. Boyce argues Mr. West and Gonzaga remain liable. Kirk, at 455. See also Scott v. Pacific West Mt. Resort, 119 Wash.2d 484, 499 (1992).
In its memorandum decision, the trial court blurs the distinction between express assumption of the risk and implied primary assumption of the risk and refers to “express primary assumption of the risk.” The confusion is understandable; the entire doctrine is surrounded by confusion. … Express assumption of risk arises out of a contract concept; implied primary assumption of risk arises out of a tort concept. … Identical in result to a release of liability which exculpates for ordinary negligence if it occurs, express and primary implied assumption of risk exculpate by shifting the duty of care from the defendant to the plaintiff, thus preventing negligence from *667 occurring. Express assumption of risk bars a claim resulting from risks actually assumed by the plaintiff; implied primary assumption of risk bars a claim resulting from specific known and appreciated risks. Scott, at 497. One who participates in sports impliedly assumes the risks which are inherent in the sport. Scott, at 498.
(1) Express assumption of risk. Mr. Boyce acknowledged the possibility of death from scuba diving and assumed “all risks in connection with [the scuba diving] course … while I am enrolled as a student of the course, including all risks connected therewith, whether foreseen or unforeseen …” Negligent instruction and supervision are clearly risks associated with being a student in a scuba diving course and are encompassed by the broad language of the contract. That Mr. Boyce may not have specifically considered the possibility of instructor negligence when he signed the release does not invalidate his express assumption of all risks associated with his participation in the course. Again, the words used by the court in Madison, 250 Cal.Rptr. at 306 (quoting from Coates v. Newhall Land & Farming, Inc., 191 Cal.App.3d 1, 9 (1987)), apply just as well to this case:
“… knowledge of a particular risk is unnecessary when there is an express agreement to assume all risk; by express agreement a ‘plaintiff may undertake to assume all of the risks of a particular … situation, whether they are known or unknown to him.[cc]
As with the release of liability exculpating ordinary negligence, in the absence of a showing of gross negligence Mr. Boyce’s express assumption of all risks associated with his enrollment in the scuba diving course bars a claim for recovery… The summary judgment on this alternative defense was also proper.
(2) Implied primary assumption of risk. Although the summary judgment is supported alternatively on the grounds of release of liability and express assumption of risk, the trial court’s memorandum decision suggests the court also relied *668 on implied primary assumption of risk as a basis for summary judgment. This was unnecessary. In any case, Mr. Boyce’s express assumption of all risk provides adequate grounds to support the summary judgment. We need not, and do not, decide whether implied primary assumption of the risk applies to these facts. Summary judgment was properly granted.
We affirm.
Note 1. What does the court mean when it states: “Express assumption of risk arises out of a contract concept; implied primary assumption of risk arises out of a tort concept”? Do you understand the way these work in operation?
Note 2. What were the untaken precautions, if any, here? What would gross negligence have likely involved, on these facts? Is Scuba diving something that seems better suited to a strict liability regime? Why or why not?
Note 3. The Tunkl factors (at p. *664 in the opinion) are judicial factors for determining whether an exculpatory clause is void for reasons of public policy. Although the court does not technically reach them (and thus does not methodically apply them), it does embed references to a couple of the factors in its dicta. Look the Tunkl factors over again. How would you characterize the concerns they reflect? Which of tort law’s purposes do they seem to support? Given that this is an area of considerable overlap between tort and contracts, you may be able to see ways in which contract law’s prioritization of the parties’ intent and mutually beneficial promises take precedence over tort law’s central purposes.
Note 4. Normatively, is the ruling in Boyce v. West the correct result, in your view? Why or why not?
(239 Cal.Rptr. 916)
Maurine Scroggs, plaintiff and surviving spouse of Frank W. Scroggs, appeals a summary judgment entered against her in her wrongful death action against Coast Community College and Barry Bandaruk. She contends the trial court erred in finding a release and waiver, executed by her husband before his death, bars the action as a matter of law. We agree and reverse.
In September 1982 Frank Scroggs enrolled in a scuba diving class offered by Coast Community College, and in that connection executed a release prepared by Coast. The following February, during a class certification dive, Frank drowned. The release provides for the participant to waive any claims “[he or his] heirs, representatives, executors and administrators thereof … have or may have against the said The Coast Community Colleges [sic] or any or all of the above mentioned persons … by reason of any accidents, illness, injury or death, or other consequences arising or resulting directly or indirectly from participation in SCUBA diving under the auspices of the Coast Community Colleges occurring during said participation, or any time subsequent thereto.”
Following the death of her husband, Mrs. Scroggs filed a complaint against Coast Community College and Barry Bandaruk, the class instructor, alleging the death of her husband by drowning was a result of defendants’ negligence. Defendants answered the complaint asserting a release as an affirmative defense and then moved for summary judgment. On December 3, 1985, the trial court granted the motion and judgment was entered in favor of both defendants and against plaintiff. This appeal followed.[7] [***]
Scroggs cites two California cases in support of her position that the court erred in finding the release binding. Earley v. Pacific Electric Ry. Co. (1917) 176 Cal. 79 [167 P. 513] held a release executed by an injured party in favor of a tortfeasor did not bar a later action by the releasor’s heir. The court found the wrongful death statute, section 377 of the Code of Civil Procedure,[8] was not a survivorship statute but rather “creates a new right of action with a different measure of damages from that which accrued to the injured person as a result of the defendant’s wrongdoing.” (Id., at p. 81.) As such, the cause of action could not be waived by the decedent. [***] The effectiveness of a release to bar a wrongful death action was recently considered in Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1 [236 Cal.Rptr. 181]. In Coates, the decedent executed a release expressly assuming the risk of injury and waiving liability for injuries or death resulting from Newhall’s ordinary negligence. Without any analysis of section 377, the Coates court concluded “a decedent’s preinjury contractual assumption of risk eliminates the possibility of tortious conduct by a potential defendant, and thus precludes a wrongful death action, if (1) the contract is not against public policy and (2) the risk encountered by the decedent is inherent in the activity in which the decedent was engaged, or the type of risk the parties contemplated when they executed the contract. (Id., at p. 4.)
The absence in Coates of any analysis of section 377 can only be justified by the court’s conclusion that the express contractual assumption of the risk, combined with the express waiver of defendants’ negligence, constituted a complete defense to the surviving heirs’ wrongful death action. This is different than holding the action is barred. The failure to draw a distinction between facts giving rise to a complete defense to a wrongful death action, and facts precluding a wrongful death action, tends unnecessarily to obfuscate a clear and uncomplicated chain of decisional law concerning the nature and effect of California’s wrongful death statute.
It is axiomatic that a plaintiff in a wrongful death action is subject to defenses which could have been asserted against the decedent. (See, e.g., Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 552 [contributory negligence]; Barnett v. Garrison (1949) 93 Cal.App.2d 553, 557 [assumption of the risk]; Nakashima v. Takase (1935) 8 Cal.App.2d 35, 38 [justifiable homicide].) But these defenses neither preclude nor destroy the wrongful death action. If it were possible to destroy a wrongful death action in advance, then arguably a decedent should be able to do so by a release drawn in general terms such as the one here.
The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent. (Earley v. Pacific Electric Ry. Co., supra, 176 Cal. at p. 81.) Since Earley the courts have consistently articulated this principle and have validated it in a variety of circumstances. (See, e.g., Garcia v. State of California (1967) 247 Cal.App.2d 814, 816 [fact that prisoner is barred from suit alleging injuries from dangerous condition is no bar to action for wrongful death by surviving spouse]; Blackwell v. American Film Co. (1922) 189 Cal. 689, 693-694 [prior judgment in favor of decedent for injuries does not bar later action for wrongful death]; Marks v. Reissinger (1917) 35 Cal.App. 44, 54 [statute of limitations runs from date of death, not injury of decedent].)
The wrongful death action was created by the Legislature, and apart from amendments affecting damages, the statute establishing the action has remained virtually unchanged since its enactment in 1862. Exceptions to the rule that the action is not derivative should be made by the Legislature, not the courts. Any contract, intending to limit or destroy a cause of action which belongs to the heirs, should be construed with an abundance of caution. … In the release prepared by Coast Community College, there is no language indicating the decedent intended to assume all risks of the activity, nor does the release encompass a waiver of defendants’ negligence. The presence of a clear and unequivocal waiver with specific reference to a defendant’s negligence is a distinct requirement where the defendant seeks to use the agreement to escape responsibility for the consequences of his negligence…
The trial court here found McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 and Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 to be controlling. Both cases involved claims by plaintiffs who were injured after engaging in activities offered by the defendants. And in both the plaintiffs had executed releases giving up their right to sue for injuries sustained. But neither case involved a wrongful death action by an heir. The sole issue was the validity of the release under Civil Code section 1668. While there is a similarity between those cases and the instant one in that motorcycling, parachuting and scuba diving all involve risks, this similarity provides no basis for upholding the release against Scroggs.
Furthermore, it is of no moment that scuba diving is of little public importance and serves no significant public purpose. Contracts seeking to release in advance the right to bring a wrongful death action, are not binding on the decedent’s heirs, and there is no compelling reason to create an exception in the case of so-called “sports risk” cases. A surviving heir of a sports enthusiast is entitled to the same protection as the surviving heir of the victim of an automobile accident. If the decedent has provided the defendant with a partial or total defense, the defendant may assert it in response to the lawsuit. The release in this case fails to provide defendants with such protection.
The judgment is reversed. Appellant is entitled to costs on appeal.
Note 1. The court distinguishes between when a release of liability (“express contractual assumption of the risk”) may provide a defense versus when it may bar an action. Can you see the difference? Why did it not bar the action in this case?
Note 2. Wrongful death statutes. The wrongful death statute in California controlled Mrs. Scroggs’ right to sue. What theories of tort law are served by allowing her to do so in this case? Keep in mind this does not mean she automatically wins this case, but simply that the defendant may not use summary judgment, with no other defenses, to defeat her claim. This is the Washington state wrongful death statute:
RCW 4.20.010 Wrongful death—Right of action.
(1) When the death of a person is caused by the wrongful act, neglect, or default of another person, his or her personal representative may maintain an action against the person causing the death for the economic and noneconomic damages sustained by the beneficiaries listed in RCW 4.20.020 as a result of the decedent’s death, in such amounts as determined by a trier of fact to be just under all the circumstances of the case.
(2) This section applies regardless of whether or not the death was caused under such circumstances as amount, in law, to a felony.
RCW 4.20.020 Wrongful death—Beneficiaries of action.
Every action under RCW 4.20.010 shall be for the benefit of the spouse, state registered domestic partner, child or children, including stepchildren, of the person whose death shall have been so caused. If there is no spouse, state registered domestic partner, or such child or children, such action may be maintained for the benefit of the parents or siblings of the deceased.
In every such action the trier of fact may give such damages as, under all circumstances of the case, may to them seem just.
Note 3. Wrongful Death and Tort Laws CompensationPrinciple. Allowing recovery by those who have lost loved ones due to the negligence of others is one way that tort law seeks to deter careless behavior, to compensate for the injuries it causes, and to advance social justice, at least in some cases. But, as you will discover if you study damages later in your course, tort law’s means of advancing these purposes are limited. Occasionally, some sort of injunctive relief may be available but usually the approach to making someone whole for the loss of a person consists of remuneration (or “money damages”). Considering that financial compensation can only ever go so far in achieving this goal, should heightened liability standards apply with respect to wrongful death actions? Why or why not?
Check Your Understanding (4-1)
Question 1. An avid skier, Ari signs a release of liability to go helicopter skiing and experience the joy of taking a helicopter ride to remote, ungroomed terrain to go skiing in deep powder. When he is on his way there, the helicopter crashes and Ari is gravely injured. Whether he can sue will most depend on which of the following:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
(291 Ga. 397)
*397 In The Landings Association, Inc. v. Williams, 309 Ga.App. 321, 711 S.E.2d 294 (2011), the Court of Appeals held that the trial court properly denied in part motions for summary judgment brought by The Landings Association, Inc., and The Landings Club, Inc., finding that a question of fact remained as to whether The Landings entities failed, pursuant to the law of premises liability, to take reasonable steps to protect Gwyneth Williams from being attacked and killed by an alligator in the planned residential community and golf club owned and/or managed by The Landings entities.[9] We granted certiorari to determine whether the Court of Appeals erred in reaching this conclusion. Because the record shows that Williams had equal knowledge of the threat of alligators within the community, we reverse.
As is relevant to our holding, the facts, in the light most favorable to Williams, show that, at the time of the alligator attack, Williams was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970s, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.
Although alligators inhabited the area of The Landings before and after its establishment, no person had ever been attacked until the night of October 5, 2007, when Williams, who was 83 at the time, *398 went for a walk near one of the lagoons near her daughter’s home some time after 6:00 p.m. The following morning, Williams’ body was found floating in the lagoon.[10] Williams’ right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the same lagoon, and, after the alligator was killed, parts of Williams’ body were found in its stomach.
The record shows that, prior to the attack, Williams was aware that the property was inhabited by alligators. Williams’ son-in-law testified that, on at least one occasion, he was driving with Williams on property in The Landings when he stopped the car to allow Williams to look at an alligator. Williams’ son-in-law also testified that Williams was, in fact, aware that there were alligators in the lagoons at The Landings and that he believed that Williams had a “normal” respect for wild animals. When asked whether he had ever discussed how to behave around wild alligators with Williams, her son-in-law responded: “No. There was never—quite frankly, there was never any reason to. I mean she was an intelligent person. She would—there was no question in my mind that—I guess I have to answer that as it’s not like talking to a five year old child … stay away from alligators.” In addition, Williams’ son recalled a similar instance when he stopped the car to allow his mother to look at an alligator. At that time Williams mentioned that she did not like alligators and did not want to go anywhere near them.
Generally, in premises liability cases,
[c] to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted *399 from the defendant’s own actions or conditions under the defendant’s control. [cc]
Furthermore, it must be remembered that
“‘[t]he true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ [cc] One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.” [cc]
[***] In this case, testimony shows that Williams was aware that wild alligators were present around The Landings and in the lagoons. Therefore, she had knowledge equal to The Landings entities about the presence of alligators in the community. In addition, the record shows that Williams knew that the wild alligators were dangerous, saying herself that she would not want to be anywhere near them. Nonetheless, Williams chose to go for a walk at night near a lagoon in a community in which she knew wild alligators were present. This act undisputably shows that Williams either knowingly assumed the risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so. Under these circumstances, the trial court should have granted the motions for summary judgment brought by the Landings entities regarding Williams’ premises liability claims.
The dissent, like the Court of Appeals, attempts to avoid this conclusion by arguing that summary judgment for The Landings is precluded because there is no “competent evidence that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which [Williams’] body was found.” While there is no doubt that Williams’ death was a tragic *400 event, Williams was not incompetent. A reasonable adult who is not disabled understands that small alligators have large parents and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a lagoon in that community after dark.
Judgment reversed .
BENHAM, Justice, dissenting.
I write because I respectfully disagree with the majority’s opinion reversing the decision of the Court of Appeals to allow this premises liability case to go to a jury. The majority reasons that appellees’ claims cannot survive summary judgment because the decedent had equal knowledge, as compared to appellants, that there were alligators in and around The Landings community. Premises liability cases, however, cannot be resolved on summary judgment unless “the evidence is plain, palpable, and undisputed.” [cc] In this case, the Court of Appeals was correct when it affirmed the trial court’s denial of summary judgment to appellants because the evidence was not plain, palpable, and undisputed.
Notably absent from the majority’s opinion are facts which, if construed in appellees’ favor, require the denial of appellants’ motions for summary judgment. For example, the Landings Association had an advertised policy that it removed from the 151 lagoons in the community alligators which were seven feet long or larger and/or alligators which were aggressive toward humans or pets;[11] the appellants did not patrol or inspect the lagoons in order to remove large or aggressive alligators according to its policy, but rather relied on residents and employees to report said animals; and appellants did not post signs near the lagoons warning guests about alligators. [c] An expert opined that the over eight foot long, 130 pound alligator that attacked the decedent had likely been in the lagoon where the decedent’s body was found for some time because such mature alligators tend to be territorial and nest. There was also evidence in the record that the decedent called for help during the attack, but that appellants’ security forces, which were not trained in *401 dealing with alligators, responded to the wrong location and then stopped investigating, assuming that the sounds in question were bird calls. While there was some testimony that the decedent had seen at least one alligator standing on the side of the road in The Landings, the Court of Appeals concluded in its de novo review that there was no “competent evidence” that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which her body was found. [c]
[I]ssues of negligence, contributory negligence and lack of care for one’s own safety are not susceptible of summary adjudication… but should be resolved by trial in the ordinary manner…. Where reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/occupier breached the duty of care to invitees and whether an invitee exercised reasonable care for personal safety, summary adjudication is not appropriate. [***]
Based on the facts presented at the time of summary judgment in this case, reasonable minds could differ as to the essential elements of appellees’ premises liability claim. Indeed, there are very specific questions in this case that must go to a jury: whether decedent knew that large and aggressive alligators were living on the premises and in the lagoon in which her body was discovered;[12] and whether appellants exercised reasonable care in inspecting and keeping the premises safe from alligators—in particular, alligators that were over seven feet long and alligators that were aggressive toward humans and pets as per appellants’ removal policy. Rather than allowing this evidence to be reviewed by a fact-finder, the majority opinion bars appellees’ premises liability claim simply because the decedent once observed an alligator standing on the roadside. Such a result disregards all the other factual circumstances in the case and is not in keeping with our jurisprudence. [***] Accordingly, I would affirm the judgment of the Court of Appeals and allow the premises liability claim to be tried before a jury. *402 I am authorized to state that Chief Justice Carley and Presiding Justice Hunstein join in this dissent.
Note 1. Assumption of the risk arguments often hinge on a balance of what the plaintiff did and what they knew. Thus courts inquire into the plaintiff’s conduct but also their likely knowledge. Do you agree with the majority opinion here that the fact that Mrs. Williams knew there could be alligators in the lagoon means that “she had knowledge equal to The Landings entities about the presence of alligators in the community”? What do you think of the court’s reasoning regarding Williams’ statement that “she would not want to be anywhere near them”? The court argues that this demonstrates that she knew alligators were dangerous and chose to take the risk of encountering them anyway, intentionally disregarding a risk or failing to exercise ordinary care for her safety. How might you challenge this line of reasoning if representing the decedent?
Note 2. The majority opinion uses ableist language in characterizing the decedent as having assumed the risk: “A reasonable adult who is not disabled understands that small alligators have large parents and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a lagoon in that community after dark.”
Can you see how it might serve a substantive purpose here? Does it seem effective, and whether or not it is, does it seem necessary?
Note 3. Why does the majority ignore the facts the dissent raises such as knowledge of larger alligators being aggressive, alleged failures to warn, or the security detail’s lack of training in alligator attacks? Does it seem credible that a human cry for help during an alligator attack would sound like bird calls? Premises liability is one of the areas in which defendants owe limited duties where the duty to act is bound up with the conduct that the law will require. Which opinion strikes the better balance, in your view, between determining this as a question of limited duty and implied assumption of the risk (as the majority does) versus as a question on which the defendant’s breach of care ought to have been considered, along with the subjective knowledge of the decedent?
Note 4. Who gets to say what counts as common knowledge? Does it matter whether the premises liability concerns local residents or tourists?
Seehttps://www.washingtonpost.com/news/morning-mix/wp/2016/08/23/tourists-warned-disney-of-alligator-minutes-before-toddler-was-killed-report-says/ (The family did not pursue legal action.) Not all courts would come out the same way on similar facts. As has likely been increasingly clear in your study of tort law, tort law varies a great deal by jurisdiction.
In George v. U.S., 735 F. Supp. 1524, 1535 (M.D. Ala. 1990), the court went the other way, finding no assumption of the risk merely because the victim of an alligator attack on park maintained by the United States government knew alligators were present:
Mr. George testified that he knew alligators were present in Open Pond but that he was unaware that there were any the size of the reptile that took his arm. This Court finds by a preponderance of the evidence that Mr. George was not aware that an alligator approximately 11 feet in length inhabited the Open Pond waters. Furthermore, this Court finds that Mr. George had no knowledge of the danger presented by his entering the swimming area. Thus, this Court finds that Mr. George did not assume the risk of his injury by entering the swimming area on July 26, 1986, notwithstanding his knowledge of the presence of alligators in Open Pond.
On the one hand, you have seen that tort law makes distinctions all the time on the basis of factual differences. Perhaps the size of the alligator should matter normatively to liability for attacks it causes. On the other hand, how well does it serve tort law’s various purposes if litigation over serious injuries (or fatalities) such as these hangs on what seem like fairly trivial differences? Or if not trivial differences (three feet of alligator is actually not trivial), differences that seem rooted in something other than immutable legal principles?
(631 F. Supp.2d 1253)
Grand Circle is a tour operator that arranges vacation packages to destinations around the world. Jill Kalter (“Kalter”) purchased a Grand Circle “Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the “Itinerary”), which stated that her group would visit Machu Picchu on two consecutive *1256 days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. The Itinerary also stated: “[t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” Kalter received and read the itinerary prior to departing on her trip. In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park.[13] The map includes a section entitled “Visit Regulations,” which states, among other things, “Do not climb the walls,” and “Follow only designated routes according to arrows.”
It was raining on both days Kalter was at Machu Picchu. The first day, she remained with Cardenas and walked on the stone paths. The second day, she opted to explore on her own, and ventured off the established paths. Cardenas states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. Kalter states that she did not hear Cardenas give these warnings, but that she “has no reason to doubt” that he did so. Kalter went to an area known as the “terraces,” filled with vertical rock walls that contain small stone protrusions called “floating steps.” [***] Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. Kalter did not think this was a dangerous act. As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.[14]
Grand Circle now moves for summary judgment on the grounds that: (1) Plaintiffs’ claims are barred under the doctrine of primary assumption of the risk; (2) Grand Circle had no duty to warn Kalter *1257 of the dangerous nature of the floating steps because it was open and obvious; and (3) Grand Circle is not liable for the actions of Cardenas because he is an independent contractor.
A. Primary Assumption of the Risk Bars Plaintiffs’ Claims.
“The question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” Knight v. Jewett, 3 Cal.4th 296, 313 (1992). The doctrine of primary assumption of the risk applies where “the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” [c] To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. [cc] The question turns on whether the plaintiff’s injury is within the “inherent” risk of the activity. [c] A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Knight, 3 Cal.4th at 318. Accordingly, “the doctrine of primary assumption of risk applies where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” [***] When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries “if the defendant ‘engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.” If, on the other hand, “the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the risk applies, which is analyzed under comparative fault principles. Knight, 3 Cal.4th at 315. In such a case, “the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” Here, Kalter was engaged in the activity of hiking on uneven terrain amongst ancient ruins. Inherent in this activity is the risk that one will fall and *1258 become injured. (See Andia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *15) (holding that “falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain”).
The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu “are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus “alter the fundamental nature of the activity.” See Knight, 3 Cal.4th at 318, 11 Cal.Rptr.2d 2, 834 P.2d 696. In other words, “hiking across uneven and challenging natural terrain is an inherent risk of hiking to [the ancient ruins at Machu Picchu], without which the general public would be substantially deprived of viewing the … phenomenon.” See id. Moreover, as discussed further below, Kalter did not fall while engaging in the activities condoned by Defendants—she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu. Therefore, Grand Circle is only liable for only liable for Kalter’s injuries “if [it] engage[d] in conduct so reckless as to be totally outside the range of the ordinary activity involved in [hiking amongst ancient ruins on uneven terrain] or increase[d] the inherent risk involved in the activity.” [***]
Plaintiffs argue that Grand Circle breached its duty to Kalter by “encouraging and permitting her to roam the ruins of Machu Picchu on her own, then directing her to an area unknown, i.e. which was not explored with her Trip Leader the prior day, and given the conditions of that day, was dangerous and confusing.” Kalter was an experienced hiker, and prior to electing to explore the ruins on her own instead of remaining with Cardenas, she had read Grand Circle’s Itinerary informing her that she would encounter steep hillsides, large stone steps, and uneven surfaces. She also received the map from Cardenas which stated “Do not climb the walls” and “Follow only designated routes according to arrows.” Moreover, Plaintiffs do not dispute that visitors to Machu Picchu often wander the ruins on their own, and that park regulations do not prohibit them from doing so. In addition, Plaintiffs provide no evidence that Cardenas or Grand Circle knew Kalter would attempt to climb the floating steps, and do not dispute Cardenas’ statement that Kalter “never asked me if she could climb down from or up to any terraces. At no time did I tell Ms. Kalter that she should climb down or up the series of terraces, and at no time did I tell Ms. Kalter that it would be okay for her to climb up or down the stone terrace walls or on the ‘floating steps.’” [c]
Given these undisputed facts, Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not “so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region. [cc] The Court also notes that other participants in the tour stated that Cardenas was “outstanding and the accident was not at all [his] fault. And of course, [Kalter] fell on a day of totally independent activities.” *1259
Moreover, even if Grand Circle or Cardenas erred in estimating Kalter’s ability to hike on her own across the uneven terrain at Machu Picchu in rainy weather, “an instructor’s assessment errors—either in making the necessarily subjective judgment of skill level or the equally subjective judgment about the difficulty of conditions—are in no way ‘outside the range of the ordinary activity involved in the sport.’” [c]; see also Andia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *16 (holding that tour guide’s “decision to allow Plaintiff to return to the Rangers station alone [during a guided hike to a lava flow] … at most constituted ‘assessment errors,’ but these ‘subjective judgments about the difficulty of the conditions were ‘in no way so reckless as to be totally outside the range of the ordinary activity involved’ in the activity of lava hiking”).
Plaintiffs have submitted a declaration by Alexander Anolik, a travel and tourism attorney, stating that Cardenas “failed to insist, explain the need for or put together a ‘buddy system’ whereby Ms. Kalter would not have to be in this strange and dangerous area by herself,” and contending that his conduct of allowing Kalter to explore on her own fell below the standard of care in the travel industry.
Anolik submits no case law or any other information to suggest that such conduct falls below a standard of care, or that any other tour companies or guides employ such practices. (See Supplemental Cardenas Decl. ¶ 3, stating that he is unaware of any other tour guide at Machu Picchu that requires a buddy system.) Further, as explained above, allowing tour participants to hike on their own, even off trail on uneven terrain, is not so reckless as to be totally outside the range of the ordinary activity involved in hiking. As such, the Court finds Anolik’s bare assertions insufficient to create a triable issue of fact regarding whether Defendants’ conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of hiking amongst ancient ruins in an undeveloped area. Accordingly, Grand Circle is not liable for Kalter’s injuries under the doctrine of primary assumption of the risk.
B. Grand Circle Had No Duty to Warn Kalter of the Open and Obvious Danger Posed by the Wet Floating Steps.
“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” [***] Here, it was obvious to both Kalter and Cardenas that it was raining, and Kalter admitted at her deposition that she “knew [the stones] were slippery and wet.” Moreover, the danger of slipping and falling from stepping on a small wet stone step protruding from a vertical wall is undoubtedly an obvious danger. Plaintiffs conclusorily state that “there are genuine issues of material fact regarding whether the conditions that caused Ms. Kalter’s injuries were open and obvious,” but offer no evidence to support this claim. Indeed, Kalter admits that it was “raining on and off,” that she “knew the rocks could be slippery”, and that before she started climbing she could see the third step was missing. Kalter offers no evidence to suggest that she believed climbing the floating steps was allowed or common, or that she saw anyone else climbing them. Further, it appears that *1260 the danger of climbing the steps was obvious to other members of Kalter’s tour; when asked whether he saw anyone climbing the steps, one member responded, “Good Lord. Someone, probably the guide, said that the Indians might have used them.” [***] Kalter also testified at her deposition that she “thought there would be some risk in climbing up the floating steps.” Further, Plaintiffs offer no evidence that the risk of slipping on the wet floating steps was any less obvious to Kalter than to Cardenas, especially in light of the fact that Kalter had walked on stone with Cardenas the previous day and noted that the stone was “slippery at times.”
Plaintiffs also cite case law holding that “although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g. when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability.” [***] While a landowner may be required to remedy a dangerous but obvious condition on his property, the situation differs with regards to a tour guide and tour company, where, as here, the dangerous condition is neither on the guide or company’s property nor within their control. [***]
Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customers encounter on trips. See, e.g., Tei Yan Sun v. Governmental Auths. of Taiwan, 2001 U.S. Dist. 1160, at *31–32 (finding no liability for failure to disclose dangers of “severe undertow, high waves, and strong surf” at beach, and noting that travel agents have no duty to disclose obvious dangers to travelers) [c]; Passero v. DHC Hotels & Resorts, 981 F.Supp. 742, 744 (D.Conn.1996)(“A tour operator may be obligated, under some circumstances, to warn a traveler of a dangerous condition unknown to the traveler but known to it…. This doctrine applies to situations where a tour operator is aware of a dangerous condition not readily discoverable by the plaintiff. It simply does not apply to an obvious dangerous condition equally observable by plaintiff.”) … Plaintiffs cite no cases in which courts have found tour companies or guides liable for failing to warn of or remedy open and obvious dangers.
Accordingly, the Court finds that Grand Circle had no duty to warn Kalter that the floating steps might be slippery and dangerous in the rain, as this danger was readily observable.
C. Since Neither Grand Circle Nor Cardenas Are Liable for Kalter’s Injuries, the Court Need Not Reach the Issue of Whether Cardenas Is an Employee or Independent Contractor.
As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s *1261 injuries because the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall. Further, Plaintiffs do not argue that Cardenas’ actions after Kalter fell caused or contributed to her injury. As such, whether Cardenas is Grand Circle’s employee or an independent contractor does not affect Grand Circle’s liability, and the Court need not reach the issue.
For the foregoing reasons, the Court GRANTS Grand Circle’s Motion for Summary Judgment.
Note 1. Does Kalter’s conduct strike you as risky? If she had not suffered catastrophic injuries, would your answer be the same? Does your answer—regarding her conduct’s reasonableness—change depending on why she climbed the floating steps? Recall that she was looking for her group, from which she had become disconnected. Would it make a difference if she were climbing them… a) to retrieve an errant toddler who was in danger? b) to retrieve an errant pet chihuahua who was in danger? c) to get a better photo, citing the desire to take an “instaworthy” snap for her profile? d) on a dare, to prove to a friend that she could do so without “getting in trouble”? To what extent do (and should) the motivations behind our actions matter to the determination of reasonableness in tort law?
Note 2. When claims arise in particular cultural contexts different from those in run-of-the-mill torts cases, should cultural norms be taken into account? What do you make of Kalter’s being a tourist here and ignoring the advice not to climb the floating steps? Should she have known better, or is her foreignness partly an explanation for her decision to climb the steps? If the floating steps were considered sacred territory that the local indigenous community advocated against climbing here, would this be information that U.S. tort law should or should not consider in assessing the reasonableness of her conduct? What tort law doctrines, if any, might treat such information as relevant?
For many years, tourists were injured climbing Uluru—formerly known as Ayers Rock—in Australia and at least 37 people died climbing it. The challenges included dangerous winds, slippery rock faces and excessive heat (with summer temperatures as high as 116 Fahrenheit). Following the death of a tourist in 2018, authorities decided to close it for good. For years, the Anangu, traditional owners of the land, had urged visitors not to climb the rock, both because of the dangers associated with the climb and because of the spiritual significance it holds in their culture. https://www.bbc.com/news/world-australia-50151344
If indigenous culture and wisdom militates against a particular practice (such as climbing certain parts of the landscape) on lands it has traditionally owned, is their guidance all that different from a municipality that passes an ordinance regarding certain conduct? Could and should negligence per se be adapted to recognize indigenous rules and proscriptions?
Note 3.Primary and Secondary Implied Assumption of the Risk. Do you understand the difference between these two forms of assumption of the risk? Some commentators have treated the second form as effectively obsolete because of comparative fault, in which the court weighs the conduct of plaintiff and defendant both. Articulate the standard, or rule, associated with each of the kinds of assumption of the risk. What do you observe about them, in terms of what needs to be shown, and who will decide the issues?
The next case shows how concepts of vicarious liability and implied assumption of the risk can interact. While the court did not find a relationship giving rise to vicarious liability, you can see that the concept stretches beyond merely employer/employee. In Wall v. Gill, the issue is whether a beauty school is liable for the torts of its students as well as whether patrons of beauty schools (which often charge lower prices due to the fact that the beauticians-in-training are still in training) have assumed the risk.
(311 Ky. 796)
The appellant conducts a college of beauty culture where instruction is offered to those desiring to become beauticians. It is after a successful completion of the course at such a college and the passing of the examination required by the State that a person qualifies as a beautician. In order that the students in these schools may receive practical experience, they are permitted to serve the public before they are licensed. According to the rules and regulations of the Kentucky State Board of Barber and Beautician Examiners, a school is not permitted to perform services for the public for a profit. The prices charged are limited to the costs of materials and supplies and are regulated by the Board. A regulation of the Board prohibits a registered beautician from rendering regular operator services in the schools and *797 limits their services to those incident to and for the purpose of instruction. The Board also requires signs to be displayed in the beauty school reading: ‘School of Beauty Culture—Work Done Exclusively by Students.’ Students must wear some insignia identifying them as such.
The appellee went to the school of the appellant to get a permanent wave. This work was performed by a student at the price prescribed by the State Board. The appellee testified that on two occasions she complained to the student that she was being burned and that he attempted to adjust the wave units. Thereafter she developed a severe head burn. Medical testimony was introduced to substantiate the appellee’s claim of injury. The student operator and the proprietor deny that the burn, if any, was occasioned by the negligent manner in which the treatment was given. However, negligence does not become an issue in the case in view of our theory of it.
The controlling questions are whether a patron of a beauty college assumes the risk of injury; and whether the relationship between the operator of the college and a student is one which would impose vicarious liability. No case has been cited nor do we find one directly in point. In Massa v. Wanamaker Academy of Beauty Culture, Inc., City Ct., 80 N.Y.S.2d 923, the trial court instructed the jury to find for the defendant beauty school, if it believed the work on the injured plaintiff was performed by a student. In that case, however, there was a release signed by the patron exempting the school from liability resulting from injuries sustained from the work of the student. In the statement of facts, the court said:
‘* * * In this connection, and in order to give its students actual experience in the field, the defendant, in its school, permits the public to submit themselves to students of the school, at the risk of the subject, with knowledge that the student is not a graduate beautician and liable to errors and mistakes. * * *’
The appellant argues that the relationship was not one which would render the instructor liable for the negligence of the pupil. Instead it is urged that, under the existing law, such a student is classified as one not *798 yet competent to engage in the practice of beauty culture and that a patron who accepts his services at a reduced cost assumes the risk arising out of such inexperience. The negligence alleged in the petition was not that of insufficient or improper instruction or supervision, but rather that the operation was negligently performed. In response to the appellant’s contention, the appellee urges that, since the student was under the control of the operator of the school, he was a servant of the operator and therefore liability should attach.
It seems to us that under the facts of this case the appellee assumed the risk of the student operator’s inexperience. This risk cannot be confined to less professional hair styling, but must include all the dangers which might result from treatment by one who is not yet qualified. Having assumed the risk, the patron cannot then impose liability on another.
Nor do we believe that the relationship here is of the nature that imposes vicarious liability. The school instructs the pupil in the art of beauty culture, for which it receives a fee. As a part of his schooling the student performs services for the public, but the school receives no profit therefrom. In the case of Miller v. Garford Laboratories, 172 Misc. 567, it was held that the students of a beauty school which received a profit for their services were employees within the meaning of the workmen’s compensation law. The opinion recognized, however, that a person could be an employee for the purposes of the compensation law and not occupy that relation within the meaning of the law of negligence. In the instant case we have not only a tort claim but also a situation in which the students’ services do not result in the pecuniary gain of the school. Under the circumstances, the school is not liable for the negligence of its students.
The judgment is reversed, with directions to set it aside, and for proceedings consistent with this opinion.
Note 1. What does the court mean when it writes: “However, negligence does not become an issue in the case in view of our theory of it”? How would you articulate its theory of the case?
Note 2. What is the source of the negligence alleged? Can you imagine a claim against the beauty school itself? What would need to be alleged to make out such a claim? Why might it fail?
Note 3. Another rationale supplied for vicarious liability may be found in the Restatement:
It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate, or defective, that its use involves an unreasonable risk of harm to others. Restatement (Second) of Torts § 307 (1965)
This is known as the dangerous instrumentality” doctrine, and you have seen it explicitly in the Landings alligator case as well as implicitly in the second prong of the test for applicability of res ipsa loquitur (whether the instrumentality was under the control of the defendant). Would the dangerous instrumentality theory, if applied in Wall v. Gill, make out a better case for the plaintiff? Or is the beauty school not “using” an instrumentality (beauticians-in-training) at all, based on the way the school is structured? Based on what you have read about vicarious liability and its relationship to control, does it matter who uses the instrumentality, versus who has the capacity to control its use?
2. Contributory Negligence
The doctrine of contributory negligence is thought to originate in an early 19th century English case in which a plaintiff was “riding as fast as his horse could go” and could have avoided colliding with a pole in the road had he been riding at a reasonable speed. Butterfield v. Forrester, 103 Eng. Rep. 926 (1809). However, the defendant was negligent in having placed a pole across part of the public road, and the action thus originated against him. The trial judge instructed the jury to focus on the plaintiff’s conduct and find whether “a person riding with reasonable and ordinary care could have seen and avoided the obstruction.” On appeal, the court upheld the jury verdict for the defendant, announcing the rule that “one person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want [Editor’s note, “want” means “lack” here] of ordinary care on the part of the plaintiff.”
In one sense, the rule on contributory negligence reflects an underlying insistence on the causal nexus required for any tort action: if the defendant’s conduct was not the proximate cause of the plaintiff’s injuries, then it is unfair to force the defendant to compensate the plaintiff for them. Yet unlike proximate cause, with its fact-sensitive, circumstance-examining inquiries, contributory negligence created a complete bar to recovery, at least at first. Over time, doctrines would evolve to “soften” these otherwise harsh outcomes, but the rule remained rather starkly “either/or” in its approach to liability. As a result, the majority of jurisdictions have now adopted comparative fault. It is still worth studying contributory negligence for the five jurisdictions that retain it and for an understanding of the evolution of 20th century tort law since the complex legislative and judicial decision making it involved is informative for understanding tort policy more generally.
(10 M. & W. 546, 152 Eng. Rep. 588)
At the trial, before Erskine, J., at the last Summer Assizes for the county of Worcester, it appeared that the plaintiff, having fettered the fore feet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off side of the road about eight yards wide, when the defendant’s waggon [sic], with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the waggon was some little distance behind the horses. The learned Judge told the jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the waggon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff, damages 40s.
Godson now moved for a new trial, on the ground of misdirection.
LORD ABINGER, C.B. I am of opinion that there ought to be no rule in this case. The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.
PARKE, B. * * * [A]lthough the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.
Note 1. What’s the alleged breach of conduct, or “untaken precaution” here? What caused the accident, and who could have avoided it?
Note 2. Is the rationale convincing to you (“were it not so, a man might justify driving over goods left on a public highway, or even a man lying asleep there…”)?
Note 3. Contributory negligence was a rather harsh rule, in that it barred any actions against plaintiffs who were even the slightest bit negligent. Courts expressly placed the burden on the defendant to prove negligence by the plaintiff (rather than forcing the plaintiff to prove a lack of negligence), and this helped mitigate the harshness of the rule somewhat. Still, other doctrines arose to “soften” or ameliorate the rule’s rigid, potentially unfair outcomes. One of these ameliorating doctrines was the doctrine of “last clear chance,” first articulated in Davies v. Mann. When the plaintiff’s negligence would ordinarily bar an action but the defendant was the last person capable of avoiding the accident, the law deems the defendant to have had the “last clear chance” of preventing injuries and thus limits or negates altogether, the defense of contributory negligence. Some commentators have held that it is nothing more than a version of proximate cause (or intervening force) analysis: the defendant’s actions (or failure to act) effectively serve as a superseding cause that severs the chain of causation between the plaintiff’s own negligence and the acts of the defendant. The last clear chance doctrine is irrelevant (and often abolished) in jurisdictions that underwent reform and abandoned the doctrine of contributory negligence. But it provides a good example of how tort law’s principles of fair allocation and its inquiries into the causal nexus recur throughout many doctrines, in many different postures.
949 F.2d 914, 916
This is an appeal (long delayed by virtue of the defendant’s bankruptcy and the resulting automatic stay only recently lifted) from a judgment for the defendant entered upon a directed verdict in the second trial of a diversity personal-injury suit. The first trial ended in a jury verdict of \$85,000 for the plaintiff, but the district judge granted the defendant’s motion for a new trial on the basis of an improper communication by the marshal to the jury during the jury deliberations. The evidence was somewhat different at the second trial and persuaded the judge to grant the defendant’s motion for a directed verdict (which he had denied at the first trial) on the twin grounds that the defendant had owed no duty of care to the plaintiff and that, in any event, the evidence showed conclusively that the plaintiff had been contributorily negligent—which at the time of the accident was a complete defense to liability.
Indiana has since replaced contributory negligence with comparative negligence, whereby a plaintiff’s own negligence is only a partial defense unless that negligence is adjudged more than 50 percent responsible for the accident; but the statute*916 is not retroactive. [cc] The plaintiff’s appeal seeks reinstatement of the first jury’s verdict on the ground that the grant of a new trial violated Rule 606(b) of the Federal Rules of Evidence, and alternatively a new trial—a third trial—on the ground that the grant of a directed verdict was improper because a reasonable jury could have found that the defendant owed the plaintiff a duty of care and that the plaintiff was not contributorily negligent.
At the time of the accident, in 1980, John Haugh was employed by Eichleay Corporation, which had a contract with Jones & Laughlin Steel Corporation to furnish workers and materials for making repairs at J & L’s mill in East Chicago, Indiana. Haugh’s particular job was to remove any generator needing repairs and replace it with a steel shaft (weighing almost a ton) to maintain a connection with the remaining generators, and then in turn to remove the shaft when the generator was ready to be reinstalled after having been repaired. It was in the course of his removing a shaft that the accident occurred. Although the contract between Eichleay and J & L gave Eichleay complete responsibility for the removal of generators and shafts incidental to the repair function for which it had been hired, the practice was for employees of J & L, not of Eichleay, to do the preliminary rigging. So when on the day of the accident Haugh approached the shaft that he had been ordered to remove, he found as usual that most of the bolts connecting the shaft to the generator had already been removed and a chain hoist had been affixed to a choke (cable) that had been wrapped around the shaft.
Unfortunately, the cable had not been tightened around the shaft; it had no choking action. Haugh didn’t notice this, and when, having removed the remaining bolts, he drew on the chain hoist to pull the shaft out from between the generators, the shaft slipped out of the cable and fell on him, injuring his arm. He had long experience in the job and admitted on cross-examination at both trials that if he had looked closely at the rigging he would have seen it was defective. The suit is against J & L for the negligence of its employees in rigging the shaft improperly, suit against Eichleay being barred of course by the workers’ compensation statute.
[Judge Posner discusses improper communications by the court marshall at the lower court that tainted the jury’s verdict and requires a new trial.] [***] So the judge was right to grant a new trial and the next question is whether he was also right to grant a directed verdict for the defendant. We think not. The argument over this question has been immensely confused by J & L’s insistence on invoking the intricate rules of tort liability of landowners. [***] Those rules concern the concept of duty. Negligence is the breach of a duty of care; so there must be a duty before there can be a finding of negligence.
There is much old and some new learning on the range of duties that landowners owe the various categories of entrants onto their land—trespassers both adult and child and both deliberate and inadvertent, licensees, social guests, business invitees, public officers engaged in the performance of their duties, and so on. Haugh was a business invitee. The rule used to be that a landowner was liable for injury to a business invitee caused by a dangerous condition on the land only if the landowner had superior knowledge of the danger. The rule has been changed—in Indiana by Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind.1990), which as we read it assimilates the landowner’s duty in such a case to the general duty to avoid negligence.
The question in the present case, however, is not whether J & L provided a safe place for Eichleay to perform the services for which it had been hired. We may assume that it did. The question is not whether J & L as a landowner was responsible for the negligence of its independent contractor. It was not. That is the general rule, Howard v. H.J. Ricks Construction Co., 509 N.E.2d 201, 205 (Ind.App.1987), and none of the exceptions is applicable here. Anderson v. Marathon Petroleum Co., 801 F.2d 936 (7th Cir.1986).
Haugh’s theory of liability is different. It is that employees of J & L negligently rigged the shaft that Haugh had been told by his own employer to move. For this negligence by employees of J & L, to which the site of the accident and hence J & L’s status as a landowner is irrelevant and its duty of care simply the duty that everyone has (prima facie) to avoid a careless act that injures another person, J & L is liable under the doctrine of respondeat superior unless Haugh was contributorily negligent or some other defense to liability is in play (none is). It makes no difference that the contract between J & L and Eichleay assigned responsibility for the rigging to Eichleay. If you undertake an activity, whether or not you are required to do so, you must carry it through nonnegligently. [cc]
Haugh’s contributory negligence would be a complete defense, but it is not proved merely by evidence that he could have prevented the accident by inspecting the rigging. Accident victims almost always can as a matter of physical possibility prevent accidents to themselves. Pedestrians could wear helmets, or refuse to cross at intersections if there was any traffic even if the light was with them, or cower *920 at home. The failure to protect oneself from an accident is contributory negligence only if there is a duty to protect oneself in the particular circumstances, which means only if due care requires self-protection in the circumstances. [c]
Whether it did here remains unclear despite Haugh’s concessions on cross-examination. Ordinarily a person is not deemed contributorily negligent for failing to take precautions against the negligence of others. [c] The plaintiff “was not bound to anticipate danger and negligent conditions on the part of defendant or his employees…. He had a right to presume that he was not exposed to danger which could come to him only from a breach of duty by the defendant.” [***] The plaintiff’s duty is to take the care that is due given the risk of unavoidable accidents, that is, accidents that might occur even without negligence [c]. Otherwise, the more careless people were, the greater would be the duty of their potential victims to protect themselves against carelessness. The burden of responsibility for taking care would shift from the careless to the careful and the total costs of accidents and accident prevention would rise. If J & L’s riggers had been careful, there would have been no need for Haugh to inspect the rigging himself before moving the shaft. He was not—not as a matter of law, anyway—charged with responsibility for backstopping the exercise of care by the employees of another employer. [c]
These are matters for a jury to sort out. The record does not disclose so one-sided a case of contributory negligence as to entitle the judge to take the issue from the jury. So, unfortunately, there must be a third trial unless—as we hope—the parties can settle the case on the basis of the information furnished by two trials (one to verdict) and this appellate decision.
REVERSED AND REMANDED.
Note 1. This opinion, by renowned judge and legal scholar, Richard Posner, illustrates the way in which understanding both old and new rules in a given area can be important, and it also gives you a sense of how doctrine-heavy some complex contemporary cases can be, requiring that you seamlessly move from doctrine to doctrine as you analyze the facts. The Court of Appeals for the Seventh Circuit adopted comparative negligence during the pendency of the litigation, yet it cannot be applied in the instant case and thus contributory negligence remains the applicable rule here. Further, Posner discusses the shift from the traditional duty rule (with its tripartite structure of duties to entrants on land) to the modern California approach (applying a duty of reasonable care to all entrants). Now in Indiana the duty to entrants on land is not specified by entrants’ status but consists instead of the duty of reasonable care. Lastly, Posner mentions three important work-place tort principles or doctrines: Haugh cannot recover against his employer, Eichleay, for on-the-job injuries because that is the province of workers’ compensation; vicarious liability may apply because J & L will be liable for the torts of their employees if the relevant tests are satisfied; and there is ordinarily no vicarious liability to the hiring party (J & L) for the torts of their independent contractor (Eichlay) unless the independent contractor falls under one of the four main exceptions to the rule. Working through opinions that present a thicket of doctrines is excellent practice for the complex litigation landscape of many of your upper-division law school classes and characteristic of contemporary litigation-oriented legal practice.
Note 2. Why does Judge Posner believe remand is necessary?
Note 3. One of the rules in this case is: “Ordinarily a person is not deemed contributorily negligent for failing to take precautions against the negligence of others.” What does this mean, substantively, and procedurally?
Check Your Understanding (4-2)
Question 1. Judge Posner likely would have resolved Haugh in favor of J & L Steel if which of the following had been true (select the option most likely to have caused a ruling in favor of J & L Steel):
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Contributory Negligence and 20th Century Tort Reform
Contributory negligence’s dominance first began to recede in 1910 when the state of Mississippi became the first in the United States to depart from the traditional rule. However, change was slow. By the 1960s, only 7 states had adopted comparative fault, the modern alternative. It took a seismic change (and significant multi-industry lobbying) in the 1980s to effectuate broad tort reforms, but 39 more states ultimately adopted some version of comparative fault, sometimes through legislative action, sometimes through judicial opinions. Only four states (Alabama, Maryland, North Carolina and Virginia) and the District of Columbia retained contributory negligence, and these five jurisdictions remain distinctly in the minority today.
There are different types of comparative fault: pure comparativefault (adopted in some form by Alaska, Arizona, California, Florida, Hawaii, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington) and modified comparative fault (adopted by all the rest in one version or another). There are two primary types of modified comparative fault. Roughly a dozen jurisdictions follow the so-called 50 percent Bar Rule according to which the plaintiff may not recover if they are 50% or more responsible for their own injury (and at 49% or less, the regular comparative fault rules would apply). The remaining states follow the 51 percent Bar Rule, which is what it sounds like: the plaintiff may not recover if they are 51% or more responsible for their own injury. The two systems differ only if the plaintiff is found to be exactly 50% at fault. (Both would allow recovery at 49% and both would bar it at 51%.) You can see this focus on “roughly 50%” as an extension of the preponderance of the evidence rule, which requires that the parties meet their burdens of proof by around a 51% probability. It may seem a little arbitrary in its execution, but it’s an attempt to retain some of the deterrence and fairness principles behind the old contributory negligence rule without retaining its starkly polarized outcomes.
The system overall displays tort law’s sometimes maddeningly jurisdiction-specific quirkiness. For instance, the differences in the system mean that a car accident that occurs in Kansas City, which straddles two states, is subject to different rules if it happens on the Missouri side of the central river (where the rule is pure comparative fault) versus the Kansas side (where the rule is modified comparative fault). Should tort law’s outcomes be allowed to vary so greatly, even when they are based on the very same facts, set in nearly identical settings? Or should uniformity be more prominent in efforts to achieve tort law’s purposes? Alternatively, is the choice to allow jurisdictions to set their own rules one of the ways of achieving and tailoring tort law’s purposes? Perhaps absurd results along borders can always be expected in our system of federalism unless Congress acts to federalize the question. These policy issues were all in the backdrop as tort reform made its way steadily through the courts and legislative bodies in the second half of the 20th century.
Comparative fault is a more complicated topic than we can fully cover in an introductory torts class, in that it involves procedural questions, substantive issues governing liability (and immunity thereto) and allocational complexities. For instance, should liability be determined by the comparative fault of the parties? If so, is the proper means of measuring and comparing the fault of the parties the levelof breach of conduct, that is, assessment of whether one party’s conduct is considerably more unreasonable? Or should it be measured by the level of causation, such that even if a first party’s breach was more egregious, if a second party’s breach contributed more substantially to causing the harm, or to increasing the risk or amount of harm, that second party would bear a higher share of the fault? And to what extent should differing levels of duty, as well as different justifications for proximate cause and different immunities all factor in when evaluating comparative fault? This is all focusing on liability alone.
A second critical question is whether the apportionment of damages should mirror the level of fault used to determine liability. Whether or not to do so—rather than trying to parse out which damages were actually caused by particular acts of unreasonable conduct—may depend on how the comparative fault is analyzed in the first stage. It is worth remembering something we have discussed, in passing, a few times, but not yet fully considered: there are typically two parts to a trial. First, a liability determination, and second, a damages determination. Sometimes, these may be discussed at the same time in a bifurcated trial, but often, they are decided one after the other. Can you see how the system of comparative fault will make the issues difficult to keep distinct? Comparative fault arose as a means to soften contributory negligence. However, in many states, it came in with, or shortly before, a wave of tort reforms that addressed perceptions that tort law was unfairly allocating liability awards to the parties able to pay, regardless of their level of contribution. In particular, joint and several liability became a target of reform, with many states either abolishing or limiting joint liability as being incompatible with comparative fault.
(31 N.Y.3d 312)
*315 This appeal requires us to answer a question that has perplexed courts for some time: Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.
Plaintiff Carlos Rodriguez was employed by the New York City Department of Sanitation (DOS) as a garage utility worker. He was injured while “outfitting” sanitation trucks with tire chains and plows to enable them to clear the streets of snow and ice. The following facts are uncontradicted: On a snowy winter day, plaintiff and his two coworkers were tasked with outfitting sanitation trucks with tire chains and plows at the Manhattan 5 facility. Typically, the driver backs the truck into one of the garage bays, and the driver and other members of the team “dress” the truck. One person acts as a guide, assisting the driver by providing directions through appropriate hand signals while standing on the passenger’s side of the truck. Once the truck is safely parked in the garage, the driver, the guide, and the third member of the team (here, plaintiff) place chains on the truck’s tires.
At the time of his accident, plaintiff was standing between the front of a parked Toyota Prius and a rack of tires outside of the garage bay while the driver began backing the sanitation truck into the garage. The guide, at some point, stood on the driver’s side of the sanitation truck while directing the driver in violation of established DOS safety practices. The sanitation truck began skidding and eventually crashed into the front of the parked Toyota Prius, propelling the car into plaintiff and pinning him up against the rack of tires. Plaintiff was taken to the hospital and ultimately had to undergo spinal fusion surgery, a course of lumbar epidural steroid injections, and extensive physical therapy. He is permanently disabled from working.
*316 Plaintiff commenced this negligence action against the City of New York. After discovery, he moved for partial summary judgment on the issue of defendant’s liability pursuant to CPLR 3212. Defendant opposed the motion and cross-moved for summary judgment in its favor. Supreme Court denied both motions. In denying plaintiff’s motion for partial summary judgment, Supreme Court held that there were triable issues of fact regarding foreseeability, causation, and plaintiff’s comparative negligence. [fn]
The Appellate Division granted plaintiff leave to appeal to this Court [c] certifying the following question: “Was the order of Supreme Court, as affirmed by this Court, properly made?” [fn]
*317 Whether a plaintiff must demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant’s liability is a question of statutory construction of the CPLR. [***] Article 14–A of the CPLR contains our State’s codified comparative negligence principles. CPLR 1411 provides that
“[i]n any action to recover damages for personal injury, injury to property, or wrongful death, the *318 culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.” (Emphasis added.)
CPLR 1412 further states that “[c]ulpable conduct claimed in diminution of damages, in accordance with [CPLR 1411], shall be an affirmative defense to be pleaded and proved by the party asserting the defense.”
Placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the plain language of CPLR 1412. In 1975, New York adopted a system of pure comparative negligence, and, in so doing, directed courts to consider a plaintiff’s comparative fault only when considering the amount of damages a defendant owes to plaintiff. The approach urged by defendant is therefore at odds with the plain language of CPLR 1412, because it flips the burden, requiring the plaintiff, instead of the defendant, to prove an absence of comparative fault in order to make out a prima facie case on the issue of defendant’s liability. [fn]
*319 Defendant’s approach also defies the plain language of CPLR 1411, and, if adopted, would permit a possible windfall to defendants. [***] For example, assuming in a hypothetical case a defendant’s negligence could be established as a matter of law because defendant’s conduct was in violation of a statute (see PJI 2:26) and further assuming plaintiff was denied partial summary judgment on the issue of defendant’s negligence because plaintiff failed to establish the absence of his or her own comparative negligence, the jury would be permitted to decide the question of whether defendant was negligent and whether defendant’s negligence proximately caused plaintiff’s injuries. If the jury answers in the negative on the question of defendant’s negligence, the plaintiff would be barred from recovery even though defendant’s negligence was established as a matter of law and in contradiction to the plain language of *320 CPLR 1411. Such a windfall to a defendant would violate section 1411’s mandate that a plaintiff’s comparative negligence “shall not bar recovery” and should only go to the diminution of damages recoverable by plaintiff. Furthermore, it is no answer to this conundrum that the trial court could set aside the verdict. The whole purpose of partial summary judgment is to streamline and focus the factfinder on the issues that need resolution, and avoid having juries make findings that are contrary to law.
Defendant’s attempts to rely on CPLR 3212’s plain language in support of its preferred approach are also unavailing. Specifically, defendant points to CPLR 3212(b), which provides; “[a] motion for summary judgment shall … show that there is no defense to the cause of action.” Defendant’s approach would have us consider comparative fault a defense. But, comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages.
The approach we adopt is also supported by the legislative history of article 14–A. [***] Article 14–A’s enactment was proposed by the 1975 Judicial Conference of the State of New York (the Conference) in response to this Court’s decision in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 [1972]), which first provided for the apportionment of negligent responsibility among joint tortfeasors. In proposing the section which later became CPLR 1411, the Conference specifically noted that neither the defense of contributory negligence or assumption of risk “shall continue to serve as complete defenses” in negligence actions [c]. In proposing the section which became CPLR 1412, the Conference urged the adoption of the then-majority rule in this country, which provided that “in all negligence actions … the defendant claiming contributory negligence of the plaintiff has the burden of showing it” (id. at 245). The Conference also observed that the “burden of pleading and burden of proof are usually parallel” and that “[t]his article may be viewed as having created a partial defense, the effect of which is to mitigate damages, and *321 such defenses traditionally must be pleaded affirmatively” (id. at 246).
[***] The purpose of the law was to bring “New York law into conformity with the majority rule and represents the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff” [c]. The legislative history of article 14–A makes clear that a plaintiff’s comparative negligence is no longer a complete defense and its absence need not be pleaded and proved by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages and should be pleaded and proven by the defendant. [***]
*323 Plaintiff contends, even assuming there is an issue of fact regarding his comparative fault, that he is entitled to partial summary judgment on the issue of defendant’s liability. [***] We agree with plaintiff that to obtain partial summary judgment on defendant’s liability he does not have to demonstrate the absence of his own comparative fault.
We also reject defendant’s contention that granting the plaintiff partial summary judgment on defendant’s liability serves no practical purpose. A principal rationale of partial summary judgment is to narrow the number of issues presented *324 to the jury [fn]. In a typical comparative negligence trial, the jury is asked to answer five questions:
1. Was the defendant negligent?
2. Was defendant’s negligence a substantial factor in causing [the injury or the accident]?
3. Was plaintiff negligent?
4. Was plaintiff’s negligence a substantial factor in causing (his or her) own injuries?
5. What was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff? (PJI 2:36).
Where plaintiff has already established defendant’s liability as a matter of law, granting plaintiff partial judgment eliminates the first two questions submitted to the jury, thereby serving the beneficial purpose of focusing the jury on questions and issues that are in dispute.
Nor do we agree with defendant that what it characterizes as bifurcation of the issues of defendant’s liability from plaintiff’s liability runs counter to the Pattern Jury Instructions. [***] As a practical matter, a trial court will instruct the jury in a modified version of Pattern Jury Instruction 1:2B that the issue of defendant’s negligence, and in some cases, the related proximate cause question, have been previously determined as a matter of law. Trial courts are experienced in crafting such instructions, for example when liability has already been determined in a bifurcated trial, or when an Appellate Division upholds a liability determination and remands solely for a recalculation of damages, or a trial on damages has been ordered pursuant to CPLR 3212(c).
To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of *325 defendant’s liability and the absence of his or her own comparative fault. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that Court and the certified question answered in the negative.
GARCIA, J. (dissenting).
The majority holds that plaintiff’s motion for partial summary judgment on liability was improperly denied, notwithstanding issues of fact as to plaintiff’s comparative negligence. We disagree. The rule has been, and should remain, that a plaintiff must demonstrate the absence of issues of fact concerning both defendant’s negligence and its own comparative fault in order to obtain summary judgment. [c]
Plaintiff’s injury occurred while he was working in a New York City Department of Sanitation garage, as he and his colleagues outfitted sanitation trucks with tire chains and a plow in order to clear snow and ice from the City streets. With the storm ongoing, plaintiff’s colleagues were backing a truck into the Department’s garage bay when the truck slid several feet and hit a parked car, which skidded forward and hit plaintiff.
Supreme Court rejected both parties’ summary judgment motions. In rejecting plaintiff’s motion, the court found that there were triable issues of fact as to the City’s liability, specifically with respect to causation and foreseeability, as well as plaintiff’s comparative fault. The court noted that “[f]oreseeability questions are generally left for the fact finder to resolve” (citing Derdiarian v. Felix Constr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] and that numerous issues of fact remained concerning causation. In addition, the court found that even if defendant’s liability was established, “plaintiff would not be entitled to summary judgment as to liability since the question of his comparative fault must be resolved at trial.” [***]
Attempts have been made to amend the comparative fault statute to place on a defendant opposing summary judgment “the burden of interposing proof of culpable conduct” (see S. 20572017–2018 Reg Sess [NY 2017]; S 7779/2016–2017 Reg Sess [NY 2016]; [c]. Such attempts at legislative reform would be unnecessary if plaintiffs were entitled to summary judgment despite the existence of issues of fact concerning comparative fault. As defendant points out, these proposed bills would still preclude summary judgment where “defendant presents evidence of plaintiff’s comparative fault sufficient to raise a question of fact” after a plaintiff has demonstrated defendant’s liability as a matter of law (see Assembly Mem. in Support, H 2776 [2017]). The majority’s approach goes well beyond these proposals, enabling a plaintiff to obtain summary judgment even where, as happened here, a defendant *329 has demonstrated that plaintiff’s comparative fault may be significant.
[***] Determinations of degrees of fault should be made as a whole, and assessing one party’s fault with a preconceived idea of the other party’s liability is inherently unfair; or, as the Appellate Division characterized it, a defendant would “enter[ ] the batter’s box with two strikes already called” (142 A.D.3d at 782, 37 N.Y.S.3d 93). Indeed, as the Appellate Division also noted, the Pattern Jury Instructions advise that a jury consider both parties’ liability together (see PJI 2:36).
This is because the issues of defendant’s liability and plaintiff’s comparative fault are intertwined. A jury cannot fairly and properly assess plaintiff’s comparative fault without considering defendant’s actions (see e.g. Siegel, Practice Commentaries C 3212:24 [noting that “(n)o purpose (is) served by the granting of summary judgment” where “the proof that would go into the damages question substantially overlaps that on which liability depends”]). [***]
Simultaneous consideration by the jury of both parties’ level of culpability is also the more practical approach. Indeed, “few, if any, litigation efficiencies are achieved by the entry of partial summary judgment in this context because the defendant would still be entitled, at trial, to present an all-out case on the plaintiff’s culpable conduct” [c]. In the event that plaintiff obtained partial summary *330 judgment without removing issues of comparative fault, a jury would still be required to assess plaintiff’s degree of liability, and then make a damages determination in a subsequent proceeding. [***] The majority promotes its approach by pointing to the “eliminat[ion]” of the first two questions a jury must answer in a “typical comparative negligence trial” [c]. But these questions would not be eliminated by a grant of partial summary judgment, as an assessment of defendant’s negligence would be required in order for the jury to determine comparative fault and damages.
Nor is our approach barred by the statutory language of CPLR article 14–A. Requiring a plaintiff to show freedom from comparative fault in advance of obtaining summary judgment does not “bar recovery” in derogation of article 14–A. Before the enactment of Article 14–A, a plaintiff was unable to obtain recovery of any sort where he or she was in any way culpable (Fitzpatrick v. Int’l. Ry. Co., 252 N.Y. 127, 133–34 [1929] [“At common law a person has no cause of action for negligence, if he himself has contributed, in the slightest degree, to bring it about”]). Article 14–A enables a plaintiff to recover despite comparative fault [c]. It does not mandate that courts grant partial summary judgment on liability to plaintiffs who are comparatively at fault, as the majority’s approach would require. The comparative fault statute simply provides that a plaintiff is entitled to recover a certain amount of damages, to be determined by a jury, even in cases where plaintiff has engaged in some degree of culpable conduct. This requires that each party’s culpability be assessed and liability determined before judgment is granted [c] [“(W)hat the statute requires comparison of is not negligence but conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party’s conduct to the injury sustained and the damages to be paid by the one and received by the other as recompense for that injury”]).
*331 The majority repeatedly speaks to the “double burden” our approach would place on defendant. But there is no unfair tipping of the scales. Plaintiff in his moving papers made a blanket assertion of freedom from any comparative negligence and defendant, in response, came forward with extensive evidence of plaintiff’s comparative fault. Plaintiff’s burden was merely that placed on any party moving for summary judgment—to demonstrate a lack of triable issues of fact. In that, plaintiff failed.
Order, insofar as appealed from, reversed, with costs, case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that Court and certified question answered in the negative.
Note 1. What are the two opinions disagreeing over? Put in your own words what would come next, in the litigation, under each of the two opinions. What values or methods seem to underlie the differences of opinion?
Note 2. Identify at least one of the purposes of summary judgment referenced in the opinions. Can it be reconciled with tort law’s various purposes, and, in particular, with its preference for fact-tailored determination of most of the elements of negligence?
Note 3. What do you notice about how the two opinions each characterize the facts? What does this tell you about how to craft statements of fact in service of a position of advocacy? At a minimum, precise factual description is important both because it can be hotly contested and because of how it can be strategically framed. Consider the following characterizations of fact from the two Rodriguez opinions at the appellate level, whose majority denied the plaintiff’s summary judgment motion (holding that plaintiff had to prove absence of comparative fault). What differences do you observe?
Facts (Majority): [I]n the present case, plaintiff was injured when a sanitation truck backed into a Toyota Prius that then struck plaintiff. Defendant claims that plaintiff, an employee of defendant, while working outside the sanitation garage, was not supposed to walk behind a sanitation truck moving in reverse, and thus contributed to the cause of the accident. At his deposition, plaintiff testified that as the truck was backing up slowly, he was walking towards the front of the Prius, which was stationed behind the moving truck. Plaintiff stated that he took approximately 10 steps forward before the impact. It would appear that plaintiff was injured while walking behind a truck slowly moving backwards which he was not supposed to do. There is no evidence in the record that plaintiff was merely “standing” in front of the Prius when he was struck, as asserted by the dissent. Further, the evidence shows that the truck was moving in reverse at approximately five miles per hour when it skidded on snow/ice and struck the Prius. Under this factual scenario, the trier of fact could determine that defendant was free from negligence and that plaintiff was 100% at fault in causing his injuries.
Facts (Dissent): On a snowy day in January 2011, plaintiff and two coworkers, employees of defendant New York City’s Department of Sanitation (DOS), were tasked with placing tire chains on sanitation trucks to provide better traction in the snow. While plaintiff was waiting for his coworkers to bring another truck into the garage for outfitting with chains, he walked towards the garage, between a parked car and a rack of tires. Plaintiff allegedly suffered injuries when his coworkers backed the truck into the parked car, which was propelled into him. The driver testified that, as he moved the truck in reverse, the “guide man” stood on the driver’s side (he should have been guiding from the passenger’s side, according to an accident report by a DOS safety officer) and gave an abrupt signal to stop, at which point the driver hit the brakes hard enough that he “jerked the truck” and slid into the car. The guide man testified that he started signaling from the passenger’s side, as required, and moved to the driver’s side only after it appeared that the driver was unable to see him signaling to stop. The guide man further testified that he signaled several times to stop, but the driver did not brake until the guide man moved to the driver’s side and began waving his arms and yelling.
Check Your Understanding (4-3)
Question 1. Summary judgment exists primarily for the purposes of:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. In Rodriguez v. City of New York, the majority seeks to avoid placing a “double burden” on the plaintiff by requiring that the plaintiff prove not just negligence by the defendant but also the plaintiff’s own lack of comparative negligence. In supporting its arguments, which of the following kinds of evidence does the court draw on?
(i) Custom evidence
(ii) Legislative history
(iii) Statutory language
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Question 3. Which of the below is an accurate statement regarding the burden-shifting devices about which you have learned?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Comparative Fault’s I ntersection with Joint and Several Liability
(Unpublished opinion 2020 WL 3476744)
*1 Plaintiff Jill White appeals as of right the trial court’s order granting summary disposition in favor of defendants Diva Nails, LLC, and Nails Studio (collectively, defendants). We reverse.
On April 19, 2016, plaintiff claims to have received a manicure at Diva Nails in Livonia. She testified that during the manicure, the nail technician cut the skin on plaintiff’s right thumb with cuticle clippers, breaking the skin and causing a small bleed. She alleged that the technician, who was not wearing gloves, did not disinfect the cut or ask plaintiff to wash her hands before finishing plaintiff’s manicure. On April 23, 2016, plaintiff visited Nails Studio in Howell, Michigan for a polish change[15] and a pedicure. The technician was identified during discovery. According to plaintiff, that technician reopened the cut received at Diva Nails on plaintiff’s right thumb with cuticle clippers, causing her wound to bleed and did not use any disinfectant on the cut or ask the Plaintiff to wash her hands. The technician denies that the wound was re-opened but admits that she wore one glove on her left hand. The technician from Nails studio denied being diagnosed with any communicable disease.
On April 26, 2016, plaintiff went to Livonia Urgent Care because the cut on her right thumb was inflamed and painful. Plaintiff was diagnosed with a bacterial infection and given antibiotics. After another visit to Livonia Urgent Care and two visits to St. Joseph Mercy Livingston Hospital, plaintiff was diagnosed with Herpes Whitlow and prescribed antiviral medication. Herpes Whitlow is a type of the Herpes Simplex Virus. The Herpes Simplex Virus is broken down into two types: Herpes Simplex and Herpes Simplex 2. Herpes Simplex 2 generally presents in the form of genital herpes, whereas Herpes Simplex 1 usually presents in the form of oral infections such as cold sores. While 50% to 80% of the general population have Herpes Simplex 1, an “extremely low” percentage of the population has Herpes Whitlow. The incubation period for the Herpes Simplex Virus is 1 to 26 days. Herpes Whitlow can be passed through the skin, saliva, from oral or anal sex, and by touching an open wound. Once a person contracts Herpes Whitlow, that person becomes a carrier of the virus for the rest of her life. A carrier of Herpes Whitlow can be asymptomatic her entire life and not know that she has the virus. Only a blood test can definitively show that a person is a carrier of Herpes. Plaintiff experienced an outbreak on September 1, 2016, but has not experienced anymore outbreaks since then.
Plaintiff’s expert witness, Dr. Michael McIlroy, testified that plaintiff suffered a “very severe outbreak” and “will be considered infectious to others even when she does [not] have any active lesions.” In Dr. McIlroy’s opinion, plaintiff “definitely” contracted Herpes Whitlow at one of the nail salons. Dr. McIlroy could not determine whether plaintiff contracted the virus from Nails Studio or Diva Nails, but the timing of plaintiff’s outbreak and the location of the nail injury indicated that the likelihood that plaintiff contracted the virus from one of the nail salons is “extremely high.” As to how plaintiff would have contracted the virus, Dr. McIlroy testified as follows: *2 “At one of the salons, one of the workers had the herpes simplex [virus], more likely than not, and through the nail injury, transmitted their virus or the virus on the instrument to [plaintiff] and the cutting of her finger made it even a higher likelihood that she would acquire [H]erpes [W]hitlow because of the injury.” No other expert witness opined as to the origin or cause of Herpes Whitlow.
Plaintiff filed a complaint against defendants, alleging negligence under an alternative-liability theory. After discovery both defendants filed motions for summary disposition under MCR 2.116(C)(10), arguing that alternative-liability theory was no longer viable in Michigan because the 1995 tort reform abolished joint liability and that plaintiff could not prove causation. The trial court did not determine whether the 1995 tort reform and abolition of joint liability eliminated alternative liability in Michigan, but concluded that summary disposition was warranted, nonetheless, because plaintiff could not demonstrate causation. According to the trial court, plaintiff could have contracted Herpes Whitlow from anywhere, and therefore, summary disposition was warranted. Plaintiff’s motion for reconsideration was denied, and this appeal followed.
Plaintiff argues that the trial court erred in granting defendants’ motion for summary disposition because alternative-liability theory is still viable in Michigan and there is a genuine issue of material facts as to whether either defendant caused her injury. We agree.
• ALTERNATIVE-LIABILITY THEORY
[***] At a minimum, the applicable threshold evidentiary standard to a plaintiff’s proof of factual causation in negligence cases is that a causation theory must have some basis in established fact. … Plaintiff concedes that she is unable to identify the actor who caused her injury, but contends that, under alternative-liability theory, she can satisfy the causation element.
*3 Under a theory of alternative liability, a plaintiff can overcome the causation element and shift the “burden of apportioning damages” by holding the defendants jointly and severally liable, as explained in the seminal case concerning alternative-liability theory in Michigan, Abel v. Eli Lilly & Co., 418 Mich. 311, 317 (1984). Abel was a products liability case that involved the daughters (and their spouses) of women who had taken the drug DES, a synthetic estrogen product, during their pregnancies. Because the plaintiffs were unable to identify the manufacturer of the drug to which they were exposed, the plaintiffs sued all manufacturers of the drug by relying on alternative-liability theory. Id. at 318. By relying on this doctrine, the plaintiffs sought to “circumvent the traditional tort element of causation in fact” and hold all of the manufacturer-defendants jointly and severally liable. Id. The Supreme Court ruled in favor of the plaintiffs, holding that the plaintiffs who were unable to identify the drug manufacturer that harmed them … “may take advantage of the burden-shifting feature of the alternative[-]liability theory to withstand summary judgment on the causation issue of the negligence claims.” The Supreme Court described the legal doctrine as follows:
Also called “clearly established double fault and alternative liability,” this procedural device shifts the burden of proof on the element of causation in fact to the defendants once an innocent plaintiff demonstrates that all defendants acted tortiously, but only one unidentifiable defendant caused plaintiff’s injury. If the defendants cannot meet this burden and exculpate themselves, joint and several liability will be imposed.[c] [fn]
When the Supreme Court decided Abel, multiple tortfeasors that produced a single, indivisible injury were held jointly and severally liable. Gerling Konzern Allgemeine Versicherungs AG v. Lawson, 472 Mich. 44, 49 149 (2005). “This meant that where multiple tortfeasors caused a single or indivisible injury, the injured party could either sue all tortfeasors jointly or he could sue any individual tortfeasor severally, and each individual tortfeasor was liable for the entire judgment, although the injured party was entitled to full compensation only once.” Id. The right of contribution—an equitable remedy available to concurrent tortfeasors—then allowed one tortfeasor to recover among or between other tortfeasors. The principle [sic] purpose of “‘contribution’ was to mitigate the unfairness resulting to a jointly and severally liable tortfeasor who had been required to pay an entire judgment in cases in which other tortfeasors also contributed to an injury
In 1995, the Legislature enacted tort reform measures, 1995 PA 161 and 1995 PA 249, and limited the availability of joint and several liability. The Legislature enacted several statutory provisions specifically designed to allocate fault for damages among multiple tortfeasors by abolishing joint and several liability is most cases. [c] The tort reform statutes applicable in this case are MCL 600.2956, MCL 600.2957(1), MCL 600.2960(1), and MCL 600.6304.
MCL 600.2956 provides, in relevant part:
Except as provided in section 6304, in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint.
MCL 600.2957(1) provides:
In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the persons percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.
MCL 600.2960(1) provides:
The person seeking to establish fault under sections 2957 to 2959 has the burden of alleging and proving that fault.
*4 MCL 600.6304 provides, in relevant part:
(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:
(a) The total amount of each plaintiff’s damages.
(b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party to the action.
* * *
(4) Liability in an action to which this section applies is several only and not joint. Except as otherwise provided in subsection (6), a person shall not be required to pay damages in an amount greater than his or her percentage of fault as found under subsection (1). This subsection and section 2956 do not apply to a defendant that is jointly and severally liable under section 6312.
* * *
(8) As used in this section, “fault” includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.
Defendants contend that alternative-liability theory is no longer viable in Michigan because joint and several liability is critical to the doctrine’s application and was abolished by the 1995 tort reform. Whether the 1995 tort reform expressly abolished joint liability and effectively eliminated alternate liability involves, in part, statutory interpretation …Defendants are correct in that, except for cases where it was expressly preserved by statute,[16] the liability of each tortfeasor is “several only” and “not joint.” MCL 600.2956; MCL 600.6304(4).
However, abolition of joint liability does not preclude a plaintiff from invoking alternative liability to seek recovery when she cannot identify which of multiple tortfeasors caused her injury. Each tortfeasor is now liable only for the portion of the total damages that reflect that tortfeasor’s percentage of fault. [c] Rather than hold multiple tortfeasors liable for the entire judgment, i.e., jointly liable, the trier of fact will determine each tortfeasor’s proportion of fault and extent of liability. MCL 600.2957(1); MCL 600.6304(1)(b). Even if the defendants are unable to exonerate themselves—after the burden of proving factual causation has shifted—defendants will only be liable for their proportion of fault, which the trier of fact will determine. MCL 600.2957(1); MCL 600.6304(1)(b). Simply, alternative liability is still feasible even though only several liability is available to a plaintiff in a case such as this one.
*5 Alternative liability was not available to a plaintiff because multiple tortfeasors could be held jointly and severally liable; it was available because multiple tortfeasors acted wrongfully, and the injured plaintiff is unable to establish which of the tortfeasors actually caused the injury. Abel, 418 Mich. at 334. Alternative-liability theory focuses on factual causation, not how, or in what proportions, the defendants will be held liable. The underlying principle of alternative liability is “to prevent the injustice of allowing proved wrongdoers to escape liability for an injury inflicted upon an innocent plaintiff merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm.” Id. at 327 (citation and quotation marks omitted). Even without joint liability, the application of alternative liability fulfills the Legislature’s intent to require a plaintiff in a tort action with multiple defendants to establish sufficient facts that would enable the fact-finder to discern each person’s liability in direct proportion to their percentage of fault.
While alternative-liability theory does not relieve the plaintiff of the burden of establishing proximate causation, i.e., that defendants’ actions were the natural, probable, foreseeable causes of plaintiff’s contraction of Herpes Whitlow. Accordingly, a plaintiff is still required to present sufficient facts proving duty, breach, proximate causation, and damages.
[***] Having concluded that alternative-liability theory is still viable in Michigan, we conclude that the trial court erred when it granted defendants’ motions for summary disposition because plaintiff presented sufficient evidence to create a genuine issue of fact regarding causation. For alternative liability to be applicable [in Michigan], the plaintiff must demonstrate three elements:
(1) all the defendants acted tortiously,
(2) the plaintiff was “harmed by the conduct of one of the defendants,” and
(3) the plaintiff, through no fault of her own, is unable to identify which actor caused the injury. Abel, 418 Mich. at 331-332.
The second element requires plaintiff to “make a genuine attempt to locate and identify the tortfeasor responsible for her injury” and “bring before the court all the actors who may have caused the injury in fact.” Id. [c] Once a plaintiff has met all three requirements, she is relieved “of the traditional burden of proof of causation in fact.” In this case, the facts alleged by plaintiff and contained in the record compromise evidence from which a reasonable jury could conclude that both defendants acted tortiously. [c]
According to plaintiff, technicians from both salons cut the skin on her right thumb and failed to treat the cut with disinfectant or soap. Neither technician wore gloves on both hands or asked plaintiff to wash her hands after she was cut. Dr. McIlroy testified that the technicians improperly placed the burden on plaintiff to clean a wound that they caused. Defendants negligently exposed plaintiff to a communicable disease by failing to ensure that their employees wear gloves, do not expose clients to contagious viruses, adequately treat any open wounds, and otherwise work in a hygienic manner. [***] The timing of plaintiff’s injury in relation to her visits to the nail salons and the location of the injury indicated an “extremely high” likelihood that plaintiff contracted the virus from one of the nail salons. Dr. McIlroy testified that he was 99% certain that Diva Nails or Nails Studio was responsible for her injury. Dr. McIlroy’s testimony demonstrates that plaintiff contracted Herpes Whitlow from one of the two nail salons, and therefore, all possible actors who may have caused plaintiff’s injury were brought before the court.
*7 Plaintiff, through no fault of her own, is unable to identify which actor caused her injury. The technician from Nails Studio states that she has never been diagnosed with any form of the Herpes Simplex Virus. However, Herpes Whitlow can be asymptomatic and thus undetectable unless a blood test is performed. In addition, whether or not plaintiff’s technician at Nails Studio had the virus does not necessarily mean that Nail Studio or Diva Nails did not cause plaintiff’s injury. According to Dr. McIlroy, plaintiff could have contracted the virus at one of the salons, from her technician or from a worker transmitting the virus on the instrument used when plaintiff was cut. Thus, the injury making [sic] it even a higher likelihood that she would contract Herpes Whitlow. [***] Moreover, the actions of the technicians at defendants’ salons were nearly identical. Both technicians failed to wear gloves on both hands, cut plaintiff’s right thumb in the same location, failed to disinfect the cut, and failed to ask plaintiff to wash her hands.
Alternative-liability theory is applicable to this case because plaintiff can demonstrate the three threshold requirements. Accordingly, plaintiff is relieved of the burden of proving causation in fact, which now shifts to defendants. Plaintiff has demonstrated an inability to identify the nail salon which harmed her and may benefit from “the burden-shifting feature of alternative- liability theory to withstand summary [disposition] on the causation issue of the negligence claim[ ].” Abel, 418 Mich. at 339. As stated above, plaintiff is still obligated to present evidence proving all other elements of negligence, including proximate causation.
Moreover, plaintiff has presented substantial evidence from which a jury may conclude that, more likely than not, she would not have contracted Herpes Whitlow but for defendants’ conduct. The trial court ignored Dr. McIlroy’s expert testimony that plaintiff contracted Herpes Whitlow from one of the two nail salons and that both defendants acted negligently. While 50% to 80% of the population have Herpes Simplex 1, the trial court was incorrect in determining that Herpes Whitlow is common and thus there was no way to determine where plaintiff contracted the virus. To the contrary, Herpes Whitlow is very rare and is much more difficult to pass from one individual to another. The trial court decided a fact that can only be resolved by the jury. Thus, summary disposition was inappropriate.
We reverse the trial court’s order granting defendants’ motions for summary disposition and remand for further proceedings. We do not retain jurisdiction.
Cavanagh, J. (dissenting).
Plaintiff failed to establish that both nail technicians were infected with the herpes simplex virus, and thus, a jury could not conclude that more likely than not, but for their negligent conduct, plaintiff would not have contracted herpetic whitlow. [***] Accordingly, I would affirm the trial court’s order granting summary disposition in favor of defendants Diva Nails, LLC, and Nails Studio. [***] Plaintiff’s expert witness, Dr. Michael McIlroy, testified that he believed plaintiff acquired the herpes virus at one of the nail salons. But he did not know if, in fact, either nail technician actually had the herpes simplex virus. Nevertheless, in McIlroy’s opinion “one of the workers had Herpes Simplex, more likely than not, and through the nail injury, transmitted their virus or the virus on the instrument to [plaintiff] ….”
McIlroy explained that the Herpes Simplex 1 virus is usually transmitted by saliva so the saliva of one of the herpes-infected nail technicians who performed either of plaintiff’s nail procedures likely transmitted the virus to plaintiff. The technician could have touched her mouth and had saliva on her finger and then transmitted the virus to plaintiff through her open wound. McIlroy testified that it was unlikely that the instruments used by either technician were the source of transmission because the virus does not usually survive on an instrument.
…In my opinion, plaintiff failed to establish that a genuine issue of material fact existed on the issue whether either defendant caused her to contract Herpes Whitlow. Plaintiff contends that, while she cannot identify which nail technician caused her infection, she does not have to; instead, she can satisfy the causation element of her negligence claim using a theory of alternative-liability. Plaintiff relied on the testimony of her expert, McIlroy, to support her causation theory that a herpes-infected nail technician at either or both salons caused her to become infected with the herpes virus.
But plaintiff never proved that both nail technicians in fact had the Herpes Simplex virus to pass on to plaintiff. McIlroy was merely speculating …. A valid theory of causation must be based on facts in evidence. [c] Impermissible conjecture and mere speculation are insufficient to establish causation. [cc] [***] There is no record evidence establishing that the nail technicians were infected with the herpes virus. In fact, one of the nail technicians testified that she did not have the herpes virus. If neither nail technician had the herpes virus, how could they pass it on to plaintiff? Thus, plaintiff cannot demonstrate causation and her claim must fail. The issue whether the 1995 tort reform eliminated alternative liability need not be decided in this case. But even if an alternative liability theory is viable in Michigan, plaintiff’s claim would fail.
Under a theory of alternative liability, a plaintiff could seek recovery for an injury although she could not identify which of multiple tortfeasors caused her injury. As explained in the case of Abel v. Eli Lilly & Co., 418 Mich. 311 (1984), the doctrine was first formally recognized in a case involving a plaintiff who was shot at by two hunting companions but was only hit by one of them. Id. at 325-326. The plaintiff could not meet his burden of proving cause-in-fact because there was no way to determine which one of the two defendants more likely than not shot him, i.e., there was a 50% chance that either of the defendants shot him. Id. at 326. As a matter of policy, it was decided that the two proved wrongdoers should bear the burden of absolving themselves rather than depriving the innocent plaintiff of a remedy. Id. at 326-327. This theory of “alternative liability” was formally approved by the Abel Court, which held that certain requirements must be met before a plaintiff could rely on that theory of liability, including: (1) it must be shown that all the defendants acted tortiously; (2) that the plaintiff was harmed by the conduct of one of the defendants; and (3) through no fault of her own, the plaintiff is unable to identify which defendant caused the injury. Id. at 331-332.
In this case, to advance an alternative-liability theory plaintiff would have to prove that both nail technicians who performed services on her were infected with the herpes virus, and therefore, it was impossible to determine which nail technician actually transmitted the herpes virus to plaintiff. Like the case of the two hunting companions discussed in Abel—where both hunters negligently shot a bullet at the plaintiff but only one bullet struck him and caused injury—here, both nail technicians would have had to be infected with the herpes virus (like the two bullets) and negligently performed nail services (like the shooting) so as to transmit the herpes virus to plaintiff. It would then be impossible for plaintiff to determine which nail technician actually transmitted the herpes virus because both were infected with it. But, again, there is no evidence in this case that both nail technicians were infected with the herpes virus, and thus, the transmission of the herpes virus cannot be sourced back to both nail salon defendants. It is just as possible that neither, or only one, nail technician was infected with the herpes virus. Plaintiff could also have been exposed to herpes-infected saliva after leaving the nail salons with an open wound. Accordingly, I would affirm the trial court’s order granting defendants’ motions for summary disposition.
Note 1. What was the defendants’ argument regarding alternative liability?
Note 2. Why did the court reject the defendants’ theory?
Note 3. The majority opinion points out that the technicians at both salons acted in an identical manner. “Both technicians failed to wear gloves on both hands, cut plaintiff’s right thumb in the same location, failed to disinfect the cut, and failed to ask plaintiff to wash her hands.” Why could that evidence not be used to establish that it was unreasonable to expect that they would behave otherwise?
Note 4. Do you agree with the court that there needs to be a footnote informing the court’s readership of the meaning of a “polish change”? Do you think this is just the court being thorough, given that there is a plausible legal significance to the difference between a polish change and a manicure? Or might this suggest something about the sociology of the judiciary and perhaps the identities and habits of judges? Do you think members of most juries could define a “polish change” in the context of a dispute set in the nail care industry? Should it matter to us whether our judges and juries are out of touch with the lives of everyday Americans?
Note 5. Are you persuaded by the dissent’s use of Summers v. Tice? Is it correct in the analogy it draws between the negligent conduct in Summers (negligently shooting in the plaintiff’s direction) and White (having herpes)? Or is the breach of care the combination of nicking the plaintiff and working without gloves in a situation where sanitary measures like gloves ought to be used? In what other ways can the two situations be analogized or distinguished?
Note 6. MCL 600.6304, which provides the rule to follow in Michigan when more than one person is at fault, includes consideration of “third-party defendants and nonparties.” What is the potential effect of doing so? If the total fault allocated includes tortfeasors whose contribution cannot be collected, or whose immunity from liability bars collection of an award of damages, has the plaintiff been fairly compensated under the tort system? What countervailing mechanisms can you imagine to redress this concern? What other priorities of tort law does this system reflect?
1. PADI stands for Professional Association of Diving Instructors.
2. “I understand and agree that neither ... Gonzaga University ... nor [PADI] may be held liable in any way for any occurrence in connection with this diving class that may result in injury, death, or other damages to me or my family, heirs, or assigns, ... and further to save and hold harmless said program and persons from any claim by me, or my family, estate, heirs, or assigns, arising out of my enrollment and participation in this course.” “It is the intention of [Peter Boyce] by this instrument to exempt and release [Gonzaga University] and [PADI] from all liability whatsoever for personal injury, property damage or wrongful death caused by negligence.”
3. “[I]n consideration of being allowed to enroll in this course, I hereby personally assume all risks in connection with said course, for any harm, injury or damage that may befall me while I am enrolled as a student of the course, including all risks connected therewith, whether foreseen or unforeseen; ...”
4. The spring release, signed on January 20, 1988, names only Down Under Divers and PADI; it does not mention or in any way refer to Mr. West or Gonzaga. It was executed by Mr. Boyce for the introductory scuba diving course he took in the spring. That course was successfully completed without incident and none of the allegations in the wrongful death complaint pertain to it. The spring release has no relevance to this lawsuit. The trial court erred by finding it protected Mr. West from liability.
5. Mrs. Boyce argues to the contrary, citing Vanderpool v. Grange Ins. Ass’n, 110 Wash.2d 483, 756 P.2d 111 (1988). However, Vanderpool involved a post-injury settlement and the release of an employer from vicarious liability. The case was decided on the basis of RCW 4.22.060(2), which states:
A release ... entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. That statute does not apply in this case.
6. As a private school, Gonzaga is not in a substantially different position than the YMCA in Madison or the private business in Hewitt.
7. Scroggs urges error on three grounds in this appeal. In the light of our holding we reach only one.
8. All statutory references are to the Code of Civil Procedure unless otherwise noted.
9. The Landings Association owns and manages the common areas of the residential area, and The Landings Club owns and manages the golf course.
10. One side of the lagoon was a park-like area owned by The Landings Association, and the other side of the lagoon was part of the golf course owned by The Landings Club.
11. Alligators over eight feet long are more prone to be aggressive toward and/or attack humans.
12. See, e.g., George v. U.S., 735 F. Supp. 1524, 1535 (M.D.Ala.1990) (fact that appellant knew there were alligators in a recreational swimming pond did not mean appellant was aware of the eleven-foot alligator that attacked him).
13. The map is produced by the Peru National Institute of Culture, not Grand Circle.
14. It is unclear exactly how Kalter fell, as she does not remember and there were apparently no witnesses. (Kalter Dep. 12:22–13:5.)
15. A polish change is different from a manicure because, generally, a polish change only involves removing the current nail polish and applying a new nail polish.
16. MCL 600.6304(6) allows joint and several liability in certain medical malpractice cases. MCL 600.6312 allows joint and several liability in tort cases in which a defendant’s act or omission is (1) “a crime, an element of which is gross negligence, for which the defendant is convicted,” or (2) “a crime, an element of which is the use of alcohol or a controlled substance, for which the defendant is convicted and” that is a violation of one of certain enumerated laws. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/04%3A_Defenses_Privileges_Immunities_and_Limitations/4.01%3A_Plaintiffs_Conduct.txt |
In addition to the defenses supplied by plaintiff’s own behavior, the other main category of defenses pertains to the status of the defendant: immunities. Entire classes of defendants are immune from tort liability to particular classes of actors, or under particular circumstances. For example, parents are generally immune from suit by their children with respect to their everyday childrearing choices, employers are generally immune from suit by their employees (who must turn to workers’ compensation when injured on the job), and judges are immune from lawsuit by parties before them. A number of formerly broad immunities (such as spousal immunity or immunity for charitable organizations) have either been eroded or abrogated over time. This is not an exclusive list of status-based immunities, but these are likely the most significant ones historically.
Immunity offers powerful protection from lawsuits, and analytically, it operates somewhat as duty does, that is, as a question of law intended to serve as a gatekeeping mechanism. However, just as was the case with duty, there may be factual questions embedded in determinations of immunity. (Recall that in Farwell v. Keaton, for instance, the court considered factual questions, such as the relationship between the boys, to determine the legal issue of duty.) Similarly, determining immunity may require resolution of underlying factual questions, such as whether a step-parent can avail himself of the same immunity as the parent in a given situation (seeZellmer v. Zellmer, 164 Wash.2d 147 (2008)), or whether governmental actors were acting in a particular capacity (say, as legislators) versus as managers or employees whose actions should be treated, for tort liability purposes, more like those of private citizens. Immunities are important in their own right as jurisdictional limitations and as substantive protections. They also may play an important role in the operation of comparative fault and allocating damages appropriately.
Immunities are also important because they are defenses that pertain to particular statuses but do not attempt to excuse the conduct of the immunized actor. In other words, it may be clear that an actor is a tortfeasor and the only thing stopping liability from attaching is this immunity. In that sense, immunities are very different from other defenses that may make the defendant’s conduct not wrongful (as in the case of self-defense or consent) or that may make the conduct only as wrongful as the plaintiff’s (as in a hypothetical case of comparative fault). With immunities, the conduct may or may not be wrongful; the point of the immunity is to shield the actor from having to submit to the exercise of that investigation into wrongfulness. Protecting against that inquiry is precisely what is thought to confer autonomy in the roles to which immunity attaches. Implicit in this is the concession that mistakes are part of the job—whether for governmental actors, judges or parents—and these mistakes, when made in the core of the function to which the immunity attaches, are not legally recognized mistakes. Because of the significant amount of power wielded by those whom the law immunizes categorically, it is important to pay close attention to the rationales offered for immunity as well as to the operation and impact of maintaining it.
(260 F.3d 1124)
[Editor’s note: the facts and parties have been streamlined to edit the case for length; brackets indicate edits.]
Christopher Duvall brought this action against a superior court judge, Kitsap County, the County’s Americans with Disabilities Act (“ADA”) coordinator, the chairperson of the County’s ADA committee, and the person who served as court administrator and court ADA coordinator. Duvall alleged that these defendants failed to accommodate his hearing impairment during the state court proceedings involving the dissolution of his marriage. Specifically, he contends that the defendants violated the ADA, Section 504 of the Rehabilitation Act, and the Washington Law against Discrimination (WLAD) by refusing to provide real-time transcription for his hearings.[1] The district court granted summary judgment to all defendants as to all claims. Duvall appeals.
I. Background
Christopher Duvall is completely deaf in his left ear and has a severe hearing impairment in his right ear. Because he *1130 does not sign well enough to use American Sign Language or Signed English, Duvall’s primary mode of receiving communication is through the written word. He wears custom-fitted hearing aids and is able to communicate effectively in one-on-one conversation in spoken English with the aid of visual cues and lip reading. He finds it extremely difficult, however, to follow a conversation in which he is not a participant. In such circumstance, he is unable to focus on a single speaker to study his facial expressions, body language, and lip movement; nor is he able to control the pace of the conversation, nor provide for a pause that would give him time to process the various aural and visual cues and interpret the speaker’s message. Attempting to overhear or follow a conversation between others requires a great deal of concentration, and after approximately thirty minutes Duvall begins to suffer from tinnitus and headaches that further diminish his capacity to understand spoken communication.
In 1994 and 1995 Duvall was a party to a family law case in the superior court of Kitsap County, Washington involving the dissolution of his marriage. In his declaration, he states that he was initially able to participate meaningfully in several pre-trial hearings because the hearings were short, there was no oral testimony, and the discussion centered on written materials that he had reviewed prior to the hearing. Thereafter, however, he experienced difficulty in following the one pre-trial hearing that included extensive oral testimony. That hearing took place in courtroom 269, the courtroom designated for hearing-impaired individuals because of its small size, superior acoustics, and special equipment, including an assistive-listening device, for hearing-impaired individuals. Nevertheless, Duvall could not understand the testimony of his ex-wife, even though he knows her speech patterns very well. Subsequently, after he continued to experience difficulty understanding the proceedings in two further pre-trial hearings, Duvall realized that he would not be able to participate meaningfully when the case came to trial without some form of accommodation. He then contacted the U.S. Department of Justice and was advised that he should request videotext display from the ADA Coordinator for Kitsap County.
The parties dispute when Duvall first requested videotext display for his court proceedings. Duvall contends that he contacted Barbara Razey, the county’s ADA coordinator, in April, 1995, and spoke to her several times in the six weeks preceding his trial about his need for accommodation. According to Duvall, he explained to Razey that he had examined the equipment in courtroom 269 and had concluded that it would not effectively accommodate his hearing impairment, and specifically requested real-time transcription for his trial, which was scheduled to begin in late June.
[When he called and Razey was out on vacation, Duvall asserts that he was directed to Madelyn Botta, Director of the Superior Court’s administrative services and its ADA coordinator and that he spoke with her twice in mid-May. While the substance of their conversations is disputed, Duvall contends that he requested real-time transcription. Botta contacted Duvall’s attorney and told him that the trial would be held in a courtroom equipped for the hearing impaired.] [***]
*1131 None of the court or county officials attempted to determine whether the facilities in courtroom 269 would accommodate Duvall’s hearing impairment, or whether it would be possible to provide videotext display through a court-reporting service, although, according to Duvall, he had informed them that the accommodations provided in Courtroom 269 were inadequate, given the nature of his particular hearing problems.
The trial for the marriage dissolution action was held before Judge Leonard Kruse on June 21, 22, and 23 in courtroom 269. That courtroom was equipped with the “Telex Soundmate,” an assistive audio system for hearing-impaired individuals. Duvall contends that this device was inappropriate for an individual like himself who uses hearing aids that are precisely adjusted to the user’s hearing needs. Telex–Soundmate did not contain an inductive loop system that would transmit to Duvall’s hearing aids and make use of their customized settings. He further declares that the facilities in courtroom 269 required him to remove his hearing aids and to use earbuds, which provided only general amplification and impeded the use of his natural hearing ability. By Duvall’s account, requiring him to remove his hearing aids to use the inferior Soundmate system was equivalent to requiring a person with an artificial leg to remove the leg and use crutches.
Duvall’s attorney made a motion to the court on the first day of trial requesting videotext display to accommodate Duvall’s hearing impairment. Judge Kruse stated in his deposition that this was the first time that he had heard about Duvall’s request for that accommodation. In any event, Judge Kruse denied the motion, stating,
[T]hat’s the way humans happen to communicate, I guess up until a very recent time, with one another is orally. And I know that some courts in some places have the ability to have, in effect, an on-line screen available through the court reporter. We have not progressed to that technical degree in this county, and I can only assume that if Mr. Duvall wished to have that service available he can provide that service for himself.
Judge Kruse did, however, permit Duvall to move around the courtroom freely and position himself wherever he could best hear the proceedings. Duvall sat in the jury box for a portion of the trial. Although this permitted him to understand the witnesses somewhat better, he was unable to communicate easily with his lawyer, who was sitting at the counsel table. He testified that he made extensive notes to preserve his thoughts for his lawyer, but that he missed the testimony that occurred while he was looking down to write notes.
When Duvall’s ex-wife took the stand on the first day of trial, Judge Kruse stated that the parties and attorneys could move about the courtroom “unless it … starts to be disconcerting in some regard *1132 or intimidating or something.” Duvall states in his declaration that he interpreted this remark to imply that he was sitting too close to the witnesses, and moved several seats away from the witness box, putting him out of effective aural range of the witnesses and attorneys. According to Duvall, at this point he “gave up” and returned to his seat next to his attorney for the remainder of the trial. The intense concentration required to attempt to follow the proceedings resulted in exhaustion, headaches, and tinnitus, further impeding his ability to hear. In sum, Duvall avers that his hearing impairment prevented him from meaningfully participating in the trial.
A post-trial hearing was scheduled for August 11, 1995.
[Duvall, again requested videotext display at the upcoming hearing hand-delivering a letter containing his request on August 8 to both Razey and Botta. They responded on behalf of the County on the same day with a letter stating simply that the hearing would be held in Courtroom 269. Again, no county or court official made any effort to determine whether videotext transcription was available. Duvall moved for a mistrial at the August 11 hearing, based upon the court’s failure to provide videotext display at the trial, and Judge Kruse denied the motion, stating that real-time transcription was not available in Kitsap County.]
At the time of Duvall’s June trial, one of the county’s court reporters was training to learn real-time transcription, and in fact had already demonstrated to Botta and several of the superior court judges how that process works. Duvall also submitted declarations of court reporters in Seattle who stated that they could have provided videotext display at the time of his trial.[2] Indeed, when Razey first contacted firms in Seattle and Tacoma in September 1995 as part of the investigation of Duvall’s complaint to the county ADA grievance committee, she learned that these firms did, in fact, have the capacity to provide videotext display to the superior court in Kitsap County. Moreover, although Sandra Baker and Associates, an independent firm that provided much of Kitsap County’s court-reporting services, had never provided videotext display prior to September 1995, when Kitsap County first requested this service on September 19, 1995, that firm also was able to accommodate the request. It provided videotext display for Duvall’s post-trial court hearing three days later, and for the subsequent hearings.
The County’s ADA grievance committee denied Duvall’s grievance on October 6, and the Board of County Commissioners denied his appeal in late November. Duvall filed suit in federal district court under Title II of the ADA, Section 504 of the Rehabilitation Act of 1973, the Washington Law Against Discrimination (WLAD), and 42 U.S.C. § 1983 seeking declaratory[3] and compensatory *1133 relief. The suit named as defendants (1) Judge Kruse and court administrator and ADA coordinator Botta (collectively “the Superior Court defendants”) and (2) County ADA Coordinator Razey, County ADA committee chairperson Richardson, and the three members of the Board of County Commissioners (collectively “the County defendants”). [fn] The district court granted summary judgment to all defendants on all claims. Duvall now appeals.
II. Judicial Immunity
The district court granted summary judgment to Judge Kruse and court administrator Botta on the ground of judicial immunity. It is well settled that judges are generally immune from suit for money damages. [c] However, absolute judicial immunity does not apply to non-judicial acts, i.e. the administrative, legislative, and executive functions that judges may on occasion be assigned to perform. [c] We have identified the following factors as relevant to the determination of whether a particular act is judicial in nature:
(1) the precise act is a normal judicial function;
(2) the events occurred in the judge’s chambers;
(3) the controversy centered around a case then pending before the judge; and
(4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity. [c]
We conclude that Judge Kruse was acting in a judicial capacity when he refused to accommodate Duvall. Judge Kruse testified that he first learned of Duvall’s request for videotext display on the first day of trial, when Duvall’s attorney brought a motion requesting videotext display. Following completion of the trial, Duvall requested a new trial because of the absence of videotext display during that proceeding. Duvall’s motions were made by his attorney while Judge Kruse was presiding over Duvall’s case. The judge stated that, when he ruled on the motion requesting videotext display, he did not consider Duvall’s request under the ADA. Instead, Judge Kruse considered only whether, as a matter of courtroom administration, the courthouse was able to provide videotext display without delaying the start of the trial. At the August post-trial hearing, Judge Kruse simply ruled that Duvall was not entitled to a new trial based upon the court’s earlier refusal to provide videotext display. Ruling on a motion is a normal judicial function, as is exercising control over the courtroom while court is in session. Judge Kruse is therefore entitled to absolute judicial immunity. [fn]
Judicial immunity is extended to “certain others who perform functions closely associated with the judicial process.” [c] “When judicial immunity is extended to officials other than judges, it is because their judgments are ‘functional[ly] comparab[le]’ to those of judges—that is, because they, too, ‘exercise discretionary judgment’ as part of their function.” *1134 [c] (see also Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1108 (9th Cir.1987) (holding that “the lynchpin of both the judicial and quasi-judicial immunities” is that the acts in question are “an integral part of the judicial process”). Here, Botta was the superior court ADA coordinator as well as the court administrator. She concedes that she had ministerial authority to arrange courtroom accommodations for disabled individuals, but contends that, because she was entitled to determine whether Duvall would receive his requested accommodations only in consultation with the judge presiding over his case, she is entitled to quasi-judicial immunity.
For Botta’s defense of absolute immunity to succeed, she must demonstrate that her decision to refuse videotext display was functionally comparable to the type of decision made by a judge [c]. Absolute immunity is “the exceptional case.” [c] Although, in her deposition, Botta expressed uncertainty about the limits of her authority to provide accommodations, she admitted that, as the court’s ADA coordinator, she was the appropriate person from whom to request accommodations. She further acknowledged that she made the decision to accommodate Duvall by scheduling his trial in Courtroom 269, rather than by providing him with videotext display. That she may have decided upon the accommodation she provided after consulting with Judge Kruse does not demonstrate that she was exercising a quasi-judicial function rather than implementing the requirements of the ADA pursuant to duties that had been assigned to her—particularly in light of Judge Kruse’s testimony that Botta did not consult with him or inform him about Duvall’s request for videotext display. In fact, some of Botta’s deposition testimony strongly suggests that her decision not to provide videotext display was administrative in nature.
Q: You said that if someone came to you and requested an ASL interpreter for litigation, you would make that decision yourself.
A: Right, based on the statute.
Q: Which statute?
A: I can’t cite it to you, but it’s my understanding that the legislature has decided that sign-language people should be available and that there is a statute—I can’t cite it to you.
Q: Do you know if that statute speaks to any disabilities other than the need for a sign-language interpreter?
A: I don’t know.
Q: So based on that statute you had the authority to provide … [a] sign-language interpreter?
A: Right.
Thus, it appears that when a statute requires, or perhaps even authorizes, the provision of a particular form of assistive device to a hearing-impaired individual, Botta has the authority to make the necessary arrangements therefor, as an administrative matter. Further, it appears that in acknowledging her authority in that regard, that Botta may have been adverting to the very statutes at issue here.[4] Accordingly, the type of decision-making authority Botta exercised in Duvall’s *1135 case appears, at the very least, to raise an issue of material fact as to whether she was acting in an administrative rather than quasi-judicial capacity. Because the burden is on the official claiming immunity to demonstrate that public policy requires recognition of an absolute immunity, [c], we hold that Botta’s deposition testimony alone precludes summary judgment in her favor.
[***Analysis of substantive allegations of violations of the ADA, the Rehabilitation Act, and the WLAD omitted here]
The district court’s grant of summary judgment in favor of Judge Kruse and the members of the Board of County Commissioners is hereby AFFIRMED. The order of summary judgment in favor of Botta, the County of Kitsap, Razey, and Richardson is REVERSED as to all claims. The case is REMANDED to the district court for proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
RYMER, Circuit Judge, dissenting:
Like Judge Kruse, the Court Administrator, Madelyn Botta, is sued for damages and like him, I believe she is entitled to immunity. As the majority recognizes, the judge was performing a judicial function when he declined on the first day of trial (June 21, 1995) to order videotext display for Duvall and when he denied Duvall’s motion for a new trial (August 11) based on the absence of real time assistance at trial. Botta’s actions were functionally no different. For essentially the same reasons that Judge Kruse is absolutely immune, the Court Administrator should be, too.
Duvall argues that Judge Kruse acted in an administrative capacity in denying Duvall’s request for accommodation and that “he has no immunity to share with the remaining defendants.” The majority holds otherwise with respect to the judge, and I agree. Duvall’s argument that Botta lacks immunity stems from the same premise—that Judge Kruse was performing an administrative, not a judicial, function, therefore so was the Court Administrator. As we unanimously reject this premise, this should be the end of the matter.
Court clerks or administrators are entitled to absolute immunity from liability for damages “when they perform tasks that are an integral part of the judicial process.” Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir.1987) (court clerks have absolute quasi-judicial immunity for filing decision).[5]*1143 Here, assuming Duvall’s version is true, he approached Botta before trial for videotext assistance at trial. Botta declined to talk to Duvall because he was represented by counsel, but told him to make his request in the form of a motion to the court. Duvall does not dispute that Botta did not have authority to grant his request once litigation was underway. He in fact asked the judge presiding over his divorce for real time accommodation on the first day of trial. The judge denied the request. This was clearly a discretionary judicial decision. [***]
Neither Duvall nor the majority explains why Botta’s instruction to take his request to the judge was not part of the judicial process. Nor does either explain why she should not be bound (or least not be properly guided) by the judge’s decision at trial when she was later consulted by the county ADA coordinator with regard to Duvall’s post-trial request for accommodation at a post-trial hearing. [***]
However you slice it, determining whether a particular hearing impaired individual needs accommodation for a court proceeding, and what kind of accommodation is reasonable, entails the power of decision. It is either a judicial function, or comparable to one. It is not administrative,[6] legislative, or executive. Judges may *1144 delegate some part of this function to the court administrator or clerk of court, but at the end of the day the function is, and remains, judicial.
In addition, Duvall was not without redress for he could appeal the judge’s rulings. As the Supreme Court has observed, “[m]ost judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability.” [c]. Duvall does not need, and should not be allowed, to seek damages from a court administrator for an arguably incorrect determination about his needs or the court’s ability to address them. This is what appeals are for. To withhold judicial immunity from the clerk in these circumstances permits a party to play the clerk off against the judge, an unseemly as well as unnecessary distraction.
Without question, the judge is the final decision-maker with respect to proceedings in his court. RCW 2.28.010. For this reason, aside from immunity, I do not see how Duvall could be injured by anything Botta did or didn’t do, or how Kitsap County, non-court personnel [***] and Richardson could have told the judge what to do. Washington judges are state actors, whose authority comes from the state not the county. Wash. Const., Art. IV, § 1; see Keenan v. Allan, 889 F. Supp. 1320, 1363 (E.D.Wash. 1995) (judges are officers of Washington State). As we have held in connection with a similar system elsewhere, a county cannot be liable for judicial conduct it lacks the power to control. [c]
Accordingly, I would affirm.
Note 1. Does the majority define the scope of judicial immunity properly in your view, or improperly, in distinguishing between the acts of the judge versus the administrator? Should something like a vicarious liability rule apply if, as the dissent suggests (writing with the authority of a judge), “the judge is the final decision-maker with respect to proceedings in his court”? Are judicial clerks different from administrators, if their work involves primarily research, writing and counseling the judge on the substantive matters before the judge? (See the footnote in the opinion at p. *1143 in which the court lists jurisdictions that do provide partial or full immunity for clerks.)
Note 2. The majority opinion writes that “[b]ecause the burden is on the official claiming immunity to demonstrate that public policy requires recognition of an absolute immunity, [c], we hold that Botta’s deposition testimony alone precludes summary judgment in her favor.” What is the practical effect of this statement? Can you articulate the reasons—descriptive and normative—for allocating the burden of proof in this way at this stage?
Note3. Where do you stand on the dissent’s argument that money damages are not the right remedy for an argument like this one (assuming a violation of the ADA and/or other anti-discrimination laws is proven)? The dissent argues that Duvall did have another means of redress in the form of appealing the judge’s rulings. What concerns are driving the dissent’s argument?
Note 4. If judges are to remain immune for decisions like the ones in Duvall, more training seems necessary in light of the apparent failures to understand the impact on a litigant that can be wrought by a failure to make necessary accommodations. Especially in the context of high-conflict proceedings such as dissolution, in which the parties were even instructed not to stand too close to each other, what ought to be done? Are there reforms you can imagine, whether legal or sociocultural, to improve the environment for parties and advocates who may need accommodations in order to gain meaningful access to the legal system?
Note 5. This opinion from 2001 quotes but does not rebuke or comment on, judicial language that is plainly ignorant about and dismissive of an entire community of people living with hearing-based challenges. In fact, there is a lively discussion among academics, historians and advocates over whether deafness is misunderstood when it is cast as a disability rather than a difference signifying belonging to a subculture that operates apart from the “mainstream hearing community.” However, deaf people may still require accommodations to enable their participation in mainstream events, including legal hearings. Thus the ADA is a powerful and welcome tool for ensuring access to justice and other societal institutions and spheres. Still, it is surely mistaken, careless and lacking in empathy to state, as Judge Kruse does, “[T]hat’s the way humans happen to communicate, I guess up until a very recent time, with one another is orally…. I can only assume that if Mr. Duvall wished to have that service available he can provide that service for himself.”[7]
Note 6. Duvall relayed that “requiring him to remove his hearing aids to use the inferior Soundmate system was equivalent to requiring a person with an artificial leg to remove the leg and use crutches.” He may have merely been trying to use an analogy that a hearing person could understand better. Does the use of this analogy, however, convey a sense of deafness as physically disabling in a way that may help a legal argument but undercut the cause of deafness as a cultural condition rather than a disability? And if the analogy does help advance Duvall’s legal argument, does it do so by relying on the pathos associated with bodies that are “not normal” thus displaying its own ableism? Or is it simply an effective way of conveying that the best way to overcome different physical challenges is not necessarily universal but must be tailored and the best person to ask is the person overcoming the challenges?
Professor Anne Bloom and the late Professor Paul Steven Miller have written that tort litigation suffers what they call “blindsight” (deliberately invoking associations with blindness so as to reclaim them):
Tort litigation’s blindsight stems from its assumption that the lives of people with disabilities are tragic. … This perspective is blindsighted because people with disabilities do not tend to share this assessment of their lives; in their view, a life with a disability is no more or less tragic than a life without one…. [T]ort litigation’s distorted perspective fosters troubling stereotypes and encourages plaintiffs with disabling injuries to view themselves in harmful ways. … From a disability rights perspective, this extreme focus on plaintiffs’ bodies overlooks important aspects of a disabling injury…While there may be many physical issues associated with disability, the main problem that most people with disabilities face is not their bodies but social oppression… A person with a spinal injury, for example, faces less of a challenge from walking than from social discrimination and the inability to gain access to many buildings with a wheelchair… Thus, from a disability rights perspective, when a person suffers a disabling injury, social and environmental factors play a significant role in creating the condition of being designated as disabled.
Anne Bloom & Paul Steven Miller, Blindsight: How We See Disabilities in Tort Litigation, 86 Wash. L. Rev. 709, 712-13, 717 (2011) They suggest that “[i]nstead of portraying plaintiffs as “tragedies,” legal actors in tort litigation could present their clients’ disabling injuries in more complex ways that better reflect people with disabilities’ actual experiences.” They recognize that compensation is important in torts cases featuring severe injuries but argue in favor of a more empowering, less tragedy-affirming perspective. One of their primary recommendations is to enable those with disabilities to play a more active and prominent role in their cases, something that we have seen Duvall was trying to do, in vain.
Check Your Understanding (4-4)
Question 1. In Duvall v. Kitsap County, the majority holds that Judge Kruse has absolute judicial immunity. Based on that ruling, which of the following would open Judge Kruse to liability:
(i) Judge Kruse’s determination not to provide appropriate accommodation was based on his personal contempt toward Mr. Duvall.
(ii) Judge Kruse’s determination not to provide appropriate accommodation was based on a privately held and biased view of the hearing impaired.
(iii) Judge Kruse, while hosting a dinner party, negligently failed to warn his clerk that the kitchen sink was broken such that water coming out of the sink was dangerously hot. The clerk was injured while attempting to help clean up.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
(528 A.2d 416)
Appellee, Doris Rousey, and her eleven-year-old daughter, Cheryl Rousey, were involved in an automobile accident in the District of Columbia. Cheryl sustained injuries, and through her father, Smith Rousey, she brought suit against her mother, alleging that the accident and her injuries were a direct and proximate result of her mother’s negligence. Mrs. Rousey, who was insured by Government Employees Insurance Company and represented by its counsel, filed a motion for summary judgment on the ground that parental immunity barred appellant from suing his wife on behalf of their unemancipated daughter. The court granted the motion, and Mr. Rousey appealed to this court.
A division of the court, recognizing that the doctrine of parental immunity had never been established as the law of the District of Columbia, refused to adopt it and held that appellant was not barred from maintaining this suit against appellee, his wife, on behalf of their unemancipated minor child. Rousey v. Rousey, 499 A.2d 1199 (D.C.1985). That decision was vacated when the court decided to rehear this case en banc. Rousey v. Rousey, 507 A.2d 1046 (D.C.1986). A majority of the court en banc now concludes, as did the division, that the parental immunity doctrine is out of date. We decline to adopt it, choosing instead to follow section 895G of the Restatement (Second) of Torts (1979), which in our view sets forth a more appropriate legal standard. We therefore reverse the trial court’s order granting summary judgment to appellee.
Unlike interspousal immunity, parental immunity was unknown at common law. *417 [c] Interspousal immunity was based on the notion that husband and wife were legally one person,[8] whereas parent and child were never so regarded. Children, unlike wives, were entitled to own property and to enforce their own choses in action, including those in tort; likewise, they were liable as individuals for their own torts. [cc]
The notion that a parent might be immune from liability for tortious conduct toward his or her child was not recognized in the United States until 1891, when the Supreme Court of Mississippi refused to permit a suit brought by a child against her mother, alleging that the mother had falsely imprisoned the child in an insane asylum. In ordering the suit dismissed, the court said:
[S]o long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.
Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891). Although the court cited no authority for this proposition, courts in all but eight other states followed Mississippi’s lead and adopted some form of parental immunity. [c]
Various reasons have been advanced in support of parental immunity, but the reason most frequently cited by the courts has been the need to preserve domestic tranquility and family unity. [cc] Many courts have relied heavily upon the analogy between husband and wife, despite the obvious differences between the husband-wife relationship and the parent-child relationship. Because at common law husband and wife were treated as one person, a wife generally could not sue her husband. [c] Children, however, were never treated as mere extensions of their parents; they could even sue their parents in tort to protect their *418 property rights. [c] The situation with respect to personal torts is somewhat less clear, since there are very few reported cases, but there is little reason to doubt that the common law would permit actions for personal torts as well, subject only to the parent’s right to enforce reasonable discipline against the child. [c] Thus we find the analogy to interspousal immunity to be a faulty one, providing no real justification for immunity between parent and child. Moreover, the courts that have adopted parental immunity have never adequately explained why the immunity applies only to suits in tort and not to suits involving property or contract rights. An action to enforce property or contract rights is surely no less adversarial than an action in tort, and in theory, at least, it would present the same threat to family harmony.
Of course, the analogy to interspousal immunity and the concern with domestic tranquility have not been the sole justifications for parental immunity. The courts have also expressed concern that parental discipline and control might be compromised if children were permitted to sue their parents. [cc] Others believed that an uncompensated tort contributed to peace in the family and respect for the parent. [c] The absurdity of this reasoning, however, becomes plain when the case involves rape, Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), or a brutal beating, Cook v. Cook, 232 Mo.App. 994, 124 S.W.2d 675 (1939); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), or when the parent-child relationship has been terminated by death before the suit was filed. Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33 (1940).
Persistent criticism of the doctrine of parental immunity eventually led to its erosion through the creation of various exceptions to it.[9] One court asserted that parent-child immunity “should not be tolerated at all except for very strong reasons; and it should never be extended beyond the bounds compelled by those reasons.” [c] Other critics of the doctrine went even further, arguing for its complete abandonment. See, e.g., McCurdy, Torts between Parent and Child, 5 VILL.L.REV. 521, 529 (1960); McCurdy, Torts between Persons in Domestic Relation, 43 HARV.L.REV. 1030, 1079–1080 (1930); [cc]
The courts of the District of Columbia were not faced with the issue until 1948, in a case in which a thirteen-year-old boy brought suit against his mother for injuries he suffered in an automobile accident. The accident occurred in Maryland, however, and hence the only question before the court was whether the son had a right to bring suit under Maryland law. After stating that the issue had not been decided in the District of Columbia and that it was “neither necessary nor proper … to analyze the authorities, weigh the problem and announce a rule,” the court concluded that decisions of the Maryland Court of Appeals “on kindred questions clearly indicate its accord with the overwhelmingly prevalent rule that public policy forbids such suits.” Villaret v. Villaret, 83 U.S.App.D.C. 311, 312, 169 F.2d 677, 678 (1948). [***]
Although the “overwhelming weight of authority” did at one time favor parental immunity, the doctrine began to lose judicial support after a 1963 Wisconsin decision which abolished it entirely except when the allegedly tortious act involved “an exercise of parental authority … [or] ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” Goller v. White, 20 Wis.2d 402, 413, 122 N.W.2d 193, 198 (1963). In 1977 the American Law Institute completely rejected general tort immunity between parent and child when it published section 895G of the Restatement (Second) of Torts. That section states:
(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.
Many states have since followed the lead of Goller v. White and the Restatement, so that a substantial majority of states have now abandoned the doctrine in whole or in part. To date eleven states have abrogated it entirely or declined to adopt it; fn] eleven have abrogated it in automobile negligence cases; [fn] five have abrogated it in automobile negligence cases in which the parent has liability insurance; [fn] and seven have abrogated it except in cases in which the parent’s alleged tortious act involves an exercise of parental authority over the child, or ordinary parental discretion with *420 respect to such matters as food, care, and education. [fn]
This trend toward abrogation is attributable, in large part, to the prevalence of liability insurance. [cc] The availability of insurance relieves the parents of direct financial responsibility for injuries sustained by their children, and thus substantially reduces the possibility that an action for damages will disrupt domestic tranquility or family unity. As the Supreme Judicial Court of Massachusetts wrote in Sorensen:
When insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child’s medical care and support without depleting the family’s other assets. Far from being a potential source of disharmony, the action is more likely to preserve the family unit in pursuit of a common goal—the easing of family financial difficulties stemming from the child’s injuries. [Sorensen v. Sorensen, 369 Mass. 350, 362 (1975)] [cc]
Although there is a possibility that parent and child may conspire to defraud the insurance carrier or that the parent may fail to cooperate with the carrier as required under the insurance contract, [c] that possibility exists to a certain extent in every case;[10] it hardly justifies a “blanket denial of recovery for all minors.” Sorensen, supra, 369 Mass. at 363, 339 N.E.2d at 915; [cc].
We constantly depend on efficient investigations and on juries and trial judges to sift evidence in order to determine the facts and arrive at proper verdicts. As part of the fact-finding process, these triers of fact must “distinguish the frivolous from the substantial and the fraudulent from the meritorious.” … Experience has shown that the courts are quite adequate for the task. Id. at 914-915.
Because there is no controlling precedent on the subject of parental immunity, [fn] we need not overrule any prior decisions. Rather, we simply decline to adopt the doctrine of parental immunity as the law of the District of Columbia. We acknowledge that doctrine for what it is: an outdated notion based on faulty premises. We see it as a vestige of an era in which children were without legal protection from the wrongs of their parents, and married women were without legal rights, subordinate to their husbands, all in the name of family harmony. More specifically, we are persuaded that section 895G of the Restatement *421 (Second) of Torts, SUPRA, IS JURISPRUDENTIALLY SOUND, AND WE ACCEPT IT AS A CORRECT STATEMENT OF THE LAW APPLICABLE TO CASES SUCH AS THIS.[11]
Thus we reject appellee’s argument that an unemancipated minor child should be barred, in the interest of family unity, from suing his or her parent for negligence. When a wrong has been committed between parent and child, “the harm to the family relationship has already occurred; and to prohibit reparations can hardly aid in restoring harmony.” [c]. We see no reason, moreover, to limit our holding to cases in which the parent-defendant has liability insurance, as some courts have done. [fn] There can be no justification for fashioning different rules of law for the insured and the uninsured. [c] The availability of insurance funds to satisfy a judgment should not determine the viability of an action by a child against a parent (or vice versa), nor should the judgment necessarily be limited to the amount of the insurance policy.
The order granting appellee’s motion for summary judgment is reversed. This case is remanded to the Superior Court for further proceedings consistent with this opinion.
Reversed and remanded.
NEBEKER, Associate Judge, dissenting:
The majority gives all the appearances of being quite unsure about its new holding. In the face of a division opinion limiting suits by issue to automobile accidents covered by insurance, Rousey v. Rousey, 499 A.2d 1199 (D.C.1985), the majority now retreats from that unusual view to general amenability to suits by offspring. They then hedge, as does the RESTATEMENT, by hinting at unknown exceptions where in the future we may conclude the case involves the type of conduct which may “on a case-by-case basis” be identified as “privileged or non-tortious.” [c]. The court thus behaves like an ill-advised legislature, acting broadly while it continues to study the need to make exceptions to the broad new enactment. This, in my view, is a poor way to take such a serious step. The hedging also implicitly recognizes that this question is for the legislature. Moreover, the majority chooses to ignore what to me are obviously damaging consequence to family structure and a moral imperative that compel the opposite conclusion.
In declining to adopt parental immunity, the majority disparages the wisdom of the past which championed the family unit, as if a contrary modern view is obviously superior. The majority finds solace in the fact that at common law there was no parental immunity and that children could enforce their own contract and property rights and bring their own action in tort. Ante at 416–417. This selective recourse to history ignores a body of law from the ecclesiastical courts where, in their domain, such suits were unthinkable. See McCurdy, Torts Between Persons in Domestic Relation, 43 HARV.L.REV. 1030, 1060 n. 141 (1930). The majority criticizes an analogy to spousal immunity and asserts that the rationales which support it are not applicable to parental immunity. [c] I agree with this point. Because the common law view of the husband-wife relationship differed from that of the parent-child, any justification by way of analogy is tenuous. Accepting this, however, I find somewhat perplexing the majority’s process of rejecting parental immunity *422 by comparing it to the statutory abolition of spousal immunity in the District of Columbia in 1976.
But enough of their fallacious reasoning! The main concern is misguided policy. I view the fact that parental immunity did not exist at common law to be irrelevant because “no American child tortiously injured by his parents had ever sought to recover damages until late in the nineteenth century.” Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 FORDHAM L.REV. 489, 498 (1981–1982). It seems that prior to 1891, our social and legal evolution had not “progressed” to the point that a child, or more accurately one in concert with him, could or would consider suing a parent in tort. The reason may have been that our society tolerated “almost unbridled parental authority,” [c] or that prior to our saturation with liability insurance, there was less incentive to sue. Of course, collusive actions were not permitted. [c] In any event, it appears the legal profession and a family oriented society simply deemed it unthinkable for a child to bring a tort action against his parent. Thus, the testing of liability was simply not contemplated. Accordingly, a doctrine of immunity would have been superfluous.
In 1891, when a tort claim was eventually brought by a daughter against her mother, the Supreme Court of Mississippi promulgated the doctrine of parental immunity. Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891). Although it has been attacked as an “exception to the general rule of liability for negligently caused injury,” Hollister, supra, 50 FORDHAM L.REV. at 504, parental immunity is more appropriately considered a judicial response to the latter-day attempt to pit child against parent and other family members. I see rejection of this immunity as part of the pandemic course to expand compensation for injury to yet another outer limit.
The likelihood of harm to the family structure if parental immunity is rejected has summarily been dismissed by the majority—in a manner similar to the decisions from other jurisdictions which have undertaken to reject this immunity, see Petersen v. City and County of Honolulu, 51 Hawaii 484, ––––, 462 P.2d 1007, 1009 (1969). Moreover, I submit that pointing to the familial discord which may also result from intentional, wanton or grossly negligent conduct is misdirected. The case before us is not one of an intentional or criminally reckless nature. Rather, it stems from an activity which today is essential to the functioning of a household—the operation of the family automobile. Anyone who has reared children today can attest to the near indispensability of the family car or cars.
I note that the majority seems to hope that family discord from offspring suits will be avoided because insurance will eliminate true adversity. It will not; and it will foster collusion. But liability insurance should not serve as the basis for rejecting the doctrine of parental immunity in any event. The majority notes the prevalence of liability insurance as its primary justification for creating new legal rights and duties within the family. I believe it imprudent public policy to sanction a new area of tort liability on the grounds that “[t]he availability of insurance relieves the parents of direct financial responsibility for injuries sustained by their children….” [c]
The theory of insurance is that it is supposed to give financial protection against the occurrence of a known risk. Once a type of insurance exists, it is not supposed to encourage the creation of new actions at law. The rationale in this case says, in essence, that because liability insurance exists, this jurisdiction will now create a new *423 class of tort claimants who are eligible to recover because it is hoped most claims will be covered. It would be just as well for the majority to justify its new rule on the hope that suits will not be brought absent insurance coverage.
The whole principle of insurance becomes distorted when the presence of insurance encourages new kinds of liability. As additional types of liability are permitted by the court, the insurance companies must either raise policy premiums or exclude coverage as to that particular risk. This latter approach, which is both logical and lawful, if chosen, would eliminate the very reason for the court’s holding in the first place. In the meantime, we encourage collusive suits where no adversity exists,[12] or pit family members against each other in true adversity.
Permit me to ask some unanswered questions where insurance is not a part of the scheme. Does our new rule permit actions for negligent failure to seek medical treatment or diagnosis, or to provide special education? Moreover, with abortions being lawful, may a child now sue a parent for wrongful birth if he is born with a foreseeable defect? Through a “case-by-case” process, we will find out sooner or later.
The rearing of a child is a unique and delicate responsibility. The teaching, nurturing and disciplining functions performed by every parent vary. They are a function of the social, economic and religious circumstances in every household. To subject a parent to liability based upon near indefinable standards will, I fear, have a detrimental impact on the family unit. The threat of a tort suit could shackle a parent and prevent the flexibility needed to exercise parental control. As a child progresses through the more intractable stages of adolescence, a parent’s fear of being sued must clearly undermine the exercise of parental authority, and thus the family structure. These concerns loom larger as our society grows more litigious.
I fear the majority has thought precious little of the consequences. They would no doubt justify their holding on the ground that they simply compensate injury by making the one at fault pay. But how will this really work? In a family structure it is usual to have both parents share in the rearing function. If one parent causes an injury and is at fault, does the other parent owe a duty to the injured child to seek recovery? I suppose so, though we do not say so. If that parent, out of concern for other children or simple devotion to the other parent, or negligence, fails to pursue recovery until a case cannot be proved, what of that parent’s liability? Can an older child, upon reaching majority, sue within the limitations period and deprive younger siblings of the family income or assets? I am sure the response is—“we will decide those cases later ‘on a case-by-case basis.’ ” Such tinkering with the already fragile family structure by judges with no formal training or experience in such matters is ill-advised. It tears at family unity. With or without liability insurance, it unavoidably pits one child against any others for limited family resources and one parent against the other. At a time when families find it hard or impossible to exist without both parents working, we now create a competition for income within the family. And insurance is not the palliative. When a claim is made, the policy can be canceled or the premium increased. In automobile accidents this can be devastating to the family.
Moreover, I anticipate that pressure to sue one or both parents will strain the moral fiber which holds families together. Well-structured families will probably ignore our permissive holding. Those not so stable will find little solace in their lucre when they discover the inevitable decay in *424 their moral fiber. Should one of a number of children get a greater share of family assets or in some other way burden the others because one or both parents caused an injury? What “next friend” will make that choice and at what price within the family? I cringe at this holding and what it can mean to our most precious national resource—the family. It foists upon parents, or other family members such as grandparents, aunts and uncles, a choice that can only be described as damnable. What we have wrought I am not sure, but of this I am certain—it is an intruder into any family circle as much as any burglar or disease. And what is worse, it rides a steed called law.
I opt for immunity and family unity; so I dissent.
BELSON, Associate Judge, with whom Chief Judge PRYOR joins, dissenting:
I write separately because I prefer to state narrowly the reason I think this court should not abrogate the doctrine of parental immunity.[***]
[T]he United States Court of Appeals, by unmistakable implication, accepted the District Court’s conclusion that minor children may not sue their parents in tort. Perchell v. District of Columbia, 144 U.S.App.D.C. 122, 123–24, (1971) The court expressly modified “[t]he doctrine of parental immunity as applied in Dennis v. Walker ” to allow the defendant to sue for contribution from the minor plaintiffs’ father, despite the fact that parental immunity barred the minor plaintiffs themselves from suing him. Id. at 124, 444 F.2d at 999. By so modifying the doctrine of parental immunity, the court implicitly acknowledged its existence in this jurisdiction. Although not binding upon this court, [c] Perchell reflects what the state of the law regarding parental immunity has been in the District of Columbia.
Given this jurisdiction’s consistent adherence, until now, to the doctrine of parental immunity, the majority decision’s departure from the doctrine reflects a determination of public policy better suited to consideration by the District of Columbia Council. As an elected legislative body, the Council is in a better position to weigh competing policy considerations such as the potential for collusive lawsuits, divisiveness in family *425 structures, and the need to compensate tort victims.
Note 1. What is the holding in this case? What is its practical effect? What rationales does it cite in support of its ruling? What role does liability insurance play in its view of the issue?
Note 2. What do you suppose is the significance of the court’s stating that it is not overruling prior case law but simply choosing not to adopt parental immunity? How is the majority’s view of this issue different from the dissenting opinions on that point?
Note 3. What does the court mean by “general tort immunity between parent and child” when it writes the following: “In 1977 the American Law Institute completely rejected general tort immunity between parent and child when it published section 895G of the Restatement (Second) of Torts”?
Note 4. The most common justifications for adopting parental immunity have included (1) maintaining family harmony; (2) preserving parental authority over the discipline, supervision, and care of children; (3) preventing fraud and collusion between family members; and (4) protecting family finances and resources from depletion in favor of one child at the expense of others. In many jurisdictions, if any parental immunity has been retained, it is limited to the kinds of discretion associated directly with parental choices (e.g. setting bedtimes, making nutritional choices, selecting medical treatment) rather than with “garden-variety” neglience or ordinary, non-parental acts of discipline and supervision. Does this line-drawing seem to you to resolve the issue well? Why or why not?
Note 5. What concerns seem most to animate the dissent?
Note 6. Is the dissent correct that the majority is “creating new legal rights and duties” within the family, and in its assertion that it does so on the basis of the availability of liability insurance? The dissent writes: “The majority notes the prevalence of liability insurance as its primary justification for creating new legal rights and duties within the family. I believe it imprudent public policy to sanction a new area of tort liability on the grounds that ‘[t]he availability of insurance relieves the parents of direct financial responsibility for injuries sustained by their children….’ [c] ‘Once a type of insurance exists, it is not supposed to encourage the creation of new actions at law.’”
Note 7. The second, shorter dissent makes two main points. What are they? Can you see how the second bolsters the first?
Immunity and Allocation of Liability
One challenge associated with identifying immunities in a given case is the effect they may have when multiple parties are at fault and one of them is protected by an immunity. This next case illustrates the challenging policy issues at the intersection of immunity, comparative fault and joint and several liability.
(188 Wash.2d 648)
*649 This case concerns the intersection of the doctrine of parental immunity with the system of proportionate liability under chapter 4.22 RCW. Two-year-old *650 Derrick Smelser was run over while playing in his yard by a car driven by the defendant, Jeanne Paul. At trial, Paul was allowed to assert an affirmative defense that the child’s father was partially at fault based on negligent supervision of the child. Instructed under RCW 4.22.070, the jury determined the father was 50 percent at fault. However, the trial court refused to enter judgment against the father based on the parental immunity doctrine. The result was that the child’s recovery against the driver was reduced by 50 percent. The Court of Appeals affirmed. Smelser v. Paul, noted at 193 Wash.App. 1014, 2016 WL 1306678, review granted, 186 Wash.2d 1002, 380 P.3d 453 (2016). We reverse and hold that under chapter 4.22 RCW and our case law, no tort or fault exists based on the claim of negligent supervision by a parent.
When he was two years old, Derrick[13] was playing in his father, Ronald Smelser’s, driveway. Respondent Paul, the father’s then girlfriend, had been visiting and had parked her truck in the driveway. As Paul started to drive away, she hit Derrick, who “was pulled under the vehicle and dragged for a distance,” and suffered severe injuries. Clerk’s Papers (CP) at 300. [Remaining references to the record omitted] Derrick’s father was home at the time but did not witness the accident. Derrick’s five-year-old brother did witness the accident, and when the father heard Derrick’s brother, Dillon, screaming, he looked in that direction and saw Derrick under Paul’s truck.
This lawsuit was brought on behalf of Derrick against Paul based on negligence. Paul admitted the basic facts of the accident, but asserted as an affirmative defense that Derrick’s father (who was not named as a defendant in the original complaint) was either partially or entirely responsible for the injuries based on a theory of negligent supervision. Derrick moved for summary judgment, arguing that *651 no apportionment of fault to the father was allowable as a matter of law. The court denied summary judgment. Derrick thereafter amended his complaint to include the father as a defendant. The amended complaint did not allege that the father was negligent or otherwise at fault in any way, but stated only that “Defendant Paul also contends that Defendant Ronald Smelser was concurrently negligent and/or engaged in willful misconduct which was a proximate cause of Plaintiffs’ injuries.” The father never appeared as a party in the suit, and the court entered an order of default against him.
The case proceeded to a jury trial. Although the father had never appeared as a party, he was called as a witness. Derrick’s theory of the case was that Paul was the only one who was negligent, that her negligence was the sole proximate cause of Derrick’s injuries, and that the jury was instructed that Derrick had the initial burden of proving that Paul was negligent and had caused his injuries. The jury was also instructed to then consider whether Paul had met her burden of proving, as an affirmative defense, that the father was also negligent. The jury was permitted to apportion fault to the father only if Paul met her burden of proof. The jury found that both Paul and the father were negligent and that both proximately caused Derrick’s injuries. On a special verdict form, the jury attributed 50 percent of the damages to Paul and 50 percent to the father. Paul proposed the court enter a judgment against her only for the 50 percent of damages apportioned to her by the jury. Derrick objected, proposing that “a ‘joint and several’ Judgment be entered against both Jeanne Paul and Ronald Smelser for the entire amount of Derrick’s damages.” Paul, however, argued that a judgment could not be entered against the father due to parental immunity, and noted that joint and several liability is allowed only where there are two or more “defendants against whom judgment is entered.” RCW 4.22.070(1)(b).
*652 The court entered judgment as proposed by Paul for 50 percent of the damages found by the jury. It did not enter any judgment against the father. The Court of Appeals affirmed. We granted review [to determine] … [w] hether, consistent with the parental immunity doctrine, a parent can be assigned fault under chapter 4.22 RCW based on negligent supervision. … This case requires us to consider the proportionate liability scheme in chapter 4.22 RCW in light of the common law doctrine of parental immunity. Chapter 4.22 RCW was enacted in 1986 and, in general terms, was intended to modify certain principles of tort law. Under specific situations, the statute established a system of proportionate fault, modifying the rule of joint and several liability. In situations involving a fault-free plaintiff, joint and several liability remains as to persons or entities against whom judgment is entered. The centerpiece of chapter 4.22 RCW is RCW 4.22.070. RCW 4.22.070(1) provides:
In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant’s damages except entities immune from liability to the claimant under Title 51 RCW. The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent. The entities whose fault shall be determined include the claimant or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant, but shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to *653 the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party’s proportionate share of the claimant’s total damages. The liability of each defendant shall be several only and shall not be joint except:
….
(b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants [claimant’s] total damages.
(Second alteration in original) (emphasis added). Under RCW 4.22.070, the foundation of fault apportionment is that all tortfeasors responsible to the injured plaintiff are identified and a percentage of fault is assigned among them. Relying on the clause “entities immune from liability to the claimant,” the lower courts allowed the jury to apportion fault to the father based on a claim of negligent supervision.
Before applying RCW 4.22.070, a preliminary issue that must be resolved is whether a tort duty exists from which fault can be found for negligent parenting.[14] The trial court and Court of Appeals failed to first determine whether a parent can be liable in tort for his or her child’s injuries based on a theory of negligent supervision. While cases have described the principle as a form of “parental immunity,” what the cases establish is that no tort liability *654 or tort duty is actionable against a parent for negligent supervision. Simply stated, it is not a tort to be a bad, or even neglectful, parent.
We comprehensively discussed the cases establishing this rule in Zellmer v. Zellmer, 164 Wash.2d 147, 188 P.3d 497 (2008). Zellmer involved a wrongful death claim brought based on the drowning death of a child while under the stepfather’s care. The suit alleged negligence and negligent supervision claims. We were urged to abolish our long standing parental immunity doctrine. We rejected that argument and held the claim was barred. Important to the analysis and conclusion in Zellmer is the analysis of our case law and the principles we have established.
We reasoned that:
this court has consistently held a parent is not liable for ordinary negligence in the performance of parental responsibilities. Jenkins [v. Snohomish County Pub. Util. Dist. No. 1 ], 105 Wn.2d 99 [, 713 P.2d 79 (1986)] (disallowing contribution claim where parents allowed child to wander free in neighborhood; child electrocuted at utility power station); Talarico v.Foremost Ins. Co., 105 Wn.2d 114, 712 P.2d 294 (1986) (disallowing negligent supervision claim where parent started backyard fire then left three-year-old son unattended, resulting in severe bums); Baughn v. Honda Motor Co., 105 Wn.2d 118, 119, 712 P.2d 293 (1986) (disallowing contribution claim where parents allowed sight-impaired child to ride motorbike, resulting in fatal crash); Stevens v. Murphy, 69 Wn.2d 939, 421 P.2d 668 (1966) (disallowing suit against divorced parent who negligently injured children while transporting them home from a scheduled visitation), [c]]; De Lay v. De Lay, 54 Wn.2d 63, 337 P.2d 1057 (1959) (disallowing negligence action against parent who instructed son to siphon gas, resulting in bum injuries); Cox v. Hugo, 52 Wn.2d 815, 329 P.2d 467 (1958) (disallowing contribution claim against parent who failed to prevent child from wandering into neighbor’s yard where she was burned by trash fire). [c].
*655Zellmer went on to recognize when this principle applies:
There now appears to be nearly universal consensus that children may sue their parents for personal injuries caused by intentionally wrongful conduct. However, the overwhelming majority of jurisdictions hold parents are not liable for negligent supervision of their child, whether stated in terms of a limited parental immunity (among jurisdictions that have partially abrogated the parental immunity doctrine), parental privilege (among those that either abolished the immunity doctrine outright or declined to adopt it in the first instance), or lack of an actionable parental duty to supervise. [T]he primary objective of the modern parental immunity doctrine is to avoid undue judicial interference with the exercise of parental discipline and parental discretion. This rationale remains as vital today as it was in 1986. Parents have a right to raise their children without undue state interference. … Zellmer equated the doctrine to other areas of the law where no tort action exists. [***]
What our cases establish is that no tort claim exists based on negligent parental supervision. Where no tort exists, no legal duty can be breached and no fault attributed or apportioned under RCW 4.22.070(1).
Though parental negligence is denominated an “immunity,” we have emphasized that it is similar to how courts characterize discretionary governmental decision-making under the doctrine of “discretionary immunity.” Zellmer, 164 Wash.2d at 159-60, 188 P.3d 497 (recognizing that “[t]he parental immunity doctrine is similar to the ‘discretionary functions’ exception).
[In a prior case, we] reasoned:
Practically all jurisdictions that have broken varying amounts of ground in the abdication of governmental immunity from tort liability have judicially, if not statutorily, recognized that the legislative, judicial, and purely executive processes of government, including as well the essential quasi-legislative and quasi-judicial or discretionary acts and decisions within the framework of such processes, cannot and should not, from the standpoint of public policy and the maintenance of the integrity of our system of government, be characterized as tortious however unwise, unpopular, mistaken, or neglectful a particular decision or act might be.
Evangelical United, 67 Wash.2d at 253, 407 P.2d 440 (citations omitted). The direct link between such immunity and parental immunity recognized in Zellmer makes clear that just as it is not a tort for government to govern, it is not a tort for parents to parent. Bad parenting cannot be subject to “judicial second-guessing … through the medium of a tort action.” Zellmer, 164 Wash.2d at 160, 188 P.3d 497. …
Since 1896, Washington has recognized that the negligence of a parent cannot be imputed on a child. Roth, 13 Wash. 525, 43 P. 641. The interpretation of RCW 4.22.070 we adopt today ensures that RCW 4.22.020 and our common law *659 principles are not violated—a parent cannot be an at-fault party based on negligent supervision, thus, their negligent actions cannot be imputed on their child.
Under chapter 4.22 RCW, a determination of fault must precede any analysis of immunity; a parent is not liable for a child’s injuries based on a theory of negligent supervision. Our cases consistently recognize no tort action exists as a matter of law. While we call this “immunity,” it is akin to discretionary governmental immunity, judicial and quasi-judicial immunity, and similar doctrines establishing that the conduct in question is simply not tortious. Thus, there is no fault to be apportioned under RCW 4.22.070.
We reverse and remand to the trial court with instructions to enter judgment against Paul for the entire amount of Derrick’s damages found by the jury.
WE CONCUR: Owens, J.; Stephens, J.; Wiggins, J.; Gordon McCloud, J.
YU, J. (dissenting)
An innocent child is badly injured through no fault of his own. His injuries were caused by the combined fault of two different people. One of those people is immune from liability to the child. Thus, who should bear the financial consequences of that person’s immunity? Should the child be forced to bear the consequences and recover the damages caused only by the nonimmune person’s fault? Or should the nonimmune person be forced to bear the consequences and pay the child’s full damages, including those caused by the immune person’s fault?
The majority adopts the latter approach, and if we were considering this question in the first instance as a matter of policy, I would too. Unfortunately, it is not our decision in the first instance, and we cannot decide it as a matter of policy. The legislature has clearly determined that the plaintiff (in this case, the child) must bear the financial consequences where fault is apportioned to an immune entity *660 pursuant to RCW 4.22.070. I therefore respectfully dissent.
As the majority rightly notes, we have previously held that a parent cannot be liable in tort for injuries to his or her child if those injuries were caused by negligent parenting. Zellmer v. Zellmer, 164 Wash.2d 147, 155, 188 P.3d 497 (2008). But unlike a direct claim by a child or a contribution claim by a third party, allocating fault to an immune parent does not render the parent liable. In fact, RCW 4.22.070(1) expressly forbids entering judgment against an immune entity. The soundness of the parental immunity doctrine is not at issue in this case.
Rather, the actual issue presented is whether Jeanne Paul was properly allowed to raise an affirmative defense that pointed to another entity (who happened to be an immune parent) whose factual fault limited Paul’s liability to the damages actually caused by her own negligence. […]
I agree with the majority as a matter of policy, but I cannot agree with it as a matter of law. I therefore respectfully dissent.
Note 1. The court states that “the primary objective of the modern parental immunity doctrine is to avoid undue judicial interference with the exercise of parental discipline and parental discretion.” On these facts, is the conduct of the parent an “exercise of parental discipline and discretion”? Why or why not?
Note 2. Can you articulate what this phrase means: “Washington has recognized that the negligence of a parent cannot be imputed on a child”? What effect does it have in this case?
Note 3. This case provides an example of at least three conflicting purposes: protecting parents from immunity, compensating victims for injurious harm they suffer, and allocating fault precisely and fairly in the realm of comparative fault. Does the court strike the right balance, normatively, in your view? Do you see alternatives? Would these alternatives consist of acts by the legislature, decisions by courts, or some other alternative?
Note 4. What do you make of the dissent’s last line? What sort of argument is Justice Yu making?
Note 5. Which theories of justice, or which of tort law’s purposes, seem most to be driving this decision?
3. Governmental Immunity
At common law, governments enjoyed sovereign immunity from tort liability, based on the idea of the king’s divinity (per the Latin maxim, rex non potest peccare or the king is incapable of sinning/doing wrong). However, the United States federal government, as well as states and tribal government, have all chosen to limit or waive this immunity in some way (through the state constitution and/or statute). These states tend to retain immunity with respect to core governmental functions, however. Judges cannot be sued over their judicial opinions and legislators cannot be sued over the votes they cast or the legislative decisions they make. There are two kinds of immunity: absoluteimmunity and qualified immunity. You can think of the retention of immunity in certain areas as absolute. When the actions are critically important to government, we protect them from liability at all costs, no matter how negligent or malicious the acts may be. This immunity reflects that solutions other than tort law exist to redress such conduct, such as voting people out of office, demoting or firing them where possible, or, in earlier days perhaps, grislier political “solutions” such as outright coup d’état. Qualified immunity exists pursuant to case law or in connection with a statutory waiver of immunity or creation of liability. It tends to be heavily fact specific, and the defendant’s conduct can matter a great deal here, by contrast with the domain of absolute liability, in which the breadth or nature of the immunity shields the conduct itself from scrutiny.
The scope of governmental immunity is usually tied to the governmental function. For instance, the government is immune from suit against a United States postal worker with respect to their mail delivery (no negligence claims for mis-delivered mail, for instance, no matter how badly bungled the duty might be) but not for their vehicular accidents. Indeed, Congress passed the Federal Torts Claims Act (“FTCA”) to waive the federal government’s immunity in part to clarify this bifurcation of legal treatment pertaining to postal delivery, as the Supreme Court stated in holding that a woman injured by a negligently left stack of mail could recover:
[O]ne of the FTCA’s purposes was to waive the Government’s immunity from liability for injuries resulting from auto accidents involving postal trucks delivering—and thus “transmitting”—the mail. Nothing in the statutory text supports a distinction between negligent driving, which the Government claims relates only circumstantially to the mail, and Dolan’s accident, which was caused by the mail itself. In both cases the postal employee acts negligently while transmitting mail. In addition, focusing on whether the mail itself caused the injury would yield anomalies, perhaps making liability turn on, e.g., whether a mail sack was empty or full. It is more likely that Congress intended to retain immunity only for injuries arising because mail either fails to arrive or arrives late, in damaged condition, or at the wrong address, since such harms are primarily identified with the Postal Service’s function of transporting mail. The Government claims that, given the Postal Service’s vast operations, Congress must have intended to insulate delivery-related torts from liability, but § 2680(b)’s specificity indicates otherwise. Had Congress intended to preserve immunity for all delivery-related torts, it could have used sweeping language similar to that used in other FTCA exceptions, e.g., § 2680(i). Furthermore, losses of the type for which immunity is retained under § 2680(b) are at least to some degree avoidable or compensable through postal registration and insurance. The Government raises the specter of frivolous slip-and-fall claims inundating the Postal Service, but that is a risk shared by any business making home deliveries. Dolan v. U.S. Postal Serv., 546 U.S. 481, 482, 126 S. Ct. 1252, 1254 (2006)
Dolan treats the government’s delivery of the mail (i) as a governmental service with respect to the mail, and (ii) as “any business making home deliveries” with respect to the mail’s home delivery. Dolan’s reasoning reflects that governmental immunity drops away when the government’s conduct is not in some way special to the role of a governmental actor. Relatedly, many disputes over governmental immunity involve vicarious liability for the governmental employees whose conduct is at issue in such cases. (You may recall the “zany meat inspector hypo” in which a USDA employee jumped on the back of a friend, pulled the wool over his eyes and accidentally caused him to fall onto a meat hook and sustain significant injuries. The issue there in Lambertson v. United States was whether the conduct qualified as a battery versus a negligent act; see Module 2’s materials on battery. However, there was another pair of key issues in that fact pattern the hypo did not reach: whether the government’s immunity would apply to the conduct, and if not, whether vicarious liability would attach or whether the act was outside the scope of the employment from the start.)
Our first case turns to the scope of liability applicable to the government with respect to the discretion of the U.S. Forest Service in dealing with wildlife in parks.
(735 F. Supp. 1524)
The cases at bar arise from an alligator attack on Plaintiff, Kermit H. George, while he was swimming in the Open Pond Recreation Area of the Conecuh National Forest. Plaintiff, Janet H. George, seeks recovery for loss of consortium. Plaintiffs bring this action against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. [hereinafter the Act]. [***] [Court’s Note: Pursuant to the agreement of the parties, this Court bifurcated the issue of damages pending a determination of whether liability existed.]
Mr. George was injured on July 26, 1986, in the Open Pond Recreation Area of the Conecuh National Forest. The recreation area, which includes a designated swimming area, is owned and operated by the United States Forest Service. On the day of the attack, Mr. George and his unleashed dog entered the area from the rear entrance and proceeded around the park to the swimming area. Mr. George’s dog preceded Mr. George into the water and then exited sometime after Mr. George had waded approximately chest deep into the designated swimming area. Shortly after his entrance into the water, Mr. George was attacked by a large alligator, which ultimately severed Mr. George’s right arm at the shoulder.
The Forest Service officials admit that they had knowledge of the presence in the Open Pond Area of the 11–to–12–foot alligator which attacked Mr. George. The evidence showed that, of the 74 confirmed, nonfatal alligator attacks in the neighboring State of Florida, 53 were committed by alligators in excess of five feet in length. Furthermore, Forest Service officials admit *1526 that they had received several complaints concerning the alligator prior to the attack on Mr. George. Additionally, the Government admits that it neither posted signs warning of the alligator nor attempted to remove said alligator.
Joe Brown, Forest Supervisor of all national forests in Alabama, Larry Hedrick, Wildlife Biologist for the Forest Service, Buddie Risner, Acting District Ranger for the Conecuh National Forest, John Maurer, Forest Technician, and Harris LeMaire, Forest Technician, were all employed by the United States Forest Service and were working within the scope of their employment as federal employees at all times relevant to these cases. All were aware of the presence of a large alligator, presumably the one which attacked Mr. George, in and near Open Pond within the seven-week period preceding the attack on Mr. George, which occurred on July 26, 1986. Their knowledge came from the following reports and observations [as well as at least 6 prior instances in which these entities saw firsthand, or received and reported complaints and concerns about large alligators, including at least two reports of alligators following people (one of which stated that a woman was followed 100 yards by a large alligator in the edge of the water). These reports repeatedly stated that the alligators appeared to have no fear of humans.]
During June and July, 1986, [various U.S. Forest Service officials] discussed the presence of a large alligator in and near Open Pond as reported and observed and the appropriate course of action to take regarding the alligator. [They] decided to take no immediate action other than monitoring the situation for several policy reasons, including their information that the alligator [***] had been in the area for many years and that the alligator had not attacked humans or domestic animals. They also were aware that the alligator was a protected species. [They] also believed that posting warning signs might suggest to the public that all potential natural dangers or risks would be posted. Finally, they thought that the risk of an alligator attack was minimal and that warning signs would unnecessarily frighten the public.
[T]he Government contends that the discretionary function exception [28 U.S.C. § 2680(a)] bars recovery. Finally, the Government asserts that Mr. George was contributorily negligent in either allowing his dog to enter the park unleashed, which was in violation of posted park regulations, or going swimming in an area Mr. George knew to be inhabited by alligators. [c]
DISCRETIONARY FUNCTION. Title 28 U.S.C. § 2680(a), provides that jurisdiction pursuant to 28 U.S.C. § 1346(b) shall not apply to:
“Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”
*1528 Plaintiffs have alleged that Defendant was negligent in failing to warn users of the Open Pond area of the presence of alligators and/or failing to remove the alligator that attacked Mr. George in the swimming area. Defendant argues that such decisions are discretionary and, thus, insulated from liability by virtue of § 2680. The thrust of Defendant’s argument stems from its contention that the forest officials charged with supervision of the Conecuh National Forest were of the opinion that neither the alligator which attacked Mr. George nor any other alligator presented any danger to the persons who used the recreation areas. In support of this contention, Defendant introduced testimony by several forest officials that there had been only one confirmed alligator attack on a human in the Conecuh National Forest prior to the attack on Mr. George. Furthermore, the prior attack had been instigated by a blind alligator with a clubfoot which, subsequent to the attack, was captured and transported to South Carolina.[15]
The forest officials admit that they were aware of the presence of the alligator which attacked Mr. George for some time but that this particular alligator had exhibited no signs of aggressive behavior toward humans. Additionally, the forest officials state they had no knowledge of any incidents concerning the alligator that would require them to take remedial action.
Forest officials based their determination on the fact that the alligator which attacked Mr. George had merely been following park guests and employees. However, at least one witness, Warren Brown, testified that, while he was snorkeling in Open Pond, an alligator chased him onto the shore and “hissed” at him. Mr. Brown reported this incident to Forest Service officials sometime in 1983 or 1984. Additionally, Plaintiffs’ expert, Dr. Robert Mount, testified that alligators typically catch their prey by stealth as opposed to exhibiting obvious aggressive behavior.
Upon considering whether or not remedial measures were required, forest officials determined that the alligator(s) posed no threat to the park visitor or, at least, no more of a threat than poisonous snakes and other natural hazards which one would expect to be present in a national forest located in South Alabama. Based on these facts, coupled with specific regulations dealing with the removal of alligators, Defendant argues that the forest officials’ decision to neither remove the alligator, erect barriers around the designated swimming area, nor to post any warning signs was a discretionary function and, as such, shields the Government by virtue of § 2680(a), from tort liability under the Act.
This Court finds by a preponderance of the evidence that at least six incidents of aggressive alligator behavior had been reported to various forest officials. Additionally, the District Ranger of Conecuh National Forest from November, 1975, until May, 1986, William Gilder, testified that he reported the alligator problem to the Forest Service headquarters in Montgomery by letter of October 9, 1985, and suggested that signs be posted. Accordingly, this Court must determine if the discretionary function doctrine bars Plaintiffs’ instant suit, notwithstanding this Court’s finding that the Forest Service had actual knowledge of the alligator problem and failed to take any corrective or preventative measures.
*1529 The hallmark case expounding on and interpreting the discretionary function exception of § 2680 is Dalehite v. United States, 346 U.S. 15, 35–36, 73 S.Ct. 956, 967–968, 97 L.Ed. 1427 (1953), wherein the Court stated:
“It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operation of government in accordance with official directions cannot be actionable.”
In finding that no liability existed with respect to a fertilizer explosion, the Dalehite Court distinguished between decisions “made at a planning rather than operational level.” Id., at 42, 73 S.Ct. at 971. The Dalehite Court further found that the Government had no knowledge of a probable danger with respect to the handling of the fertilizer. Id.
The Supreme Court in [***] Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) … further refined the factors to be considered in determining whether the Government’s conduct is protected by § 2680. The Court stated:
“[***] [C]onduct cannot be discretionary unless it involves an element of judgment or choice. [c] Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect. [c]. * * *
“Moreover, assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress’ desire to ‘prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ [c] The exception, properly construed, therefore, protects only governmental actions and decisions based on considerations of public policy. (‘Where there is room for policy judgment and decision there is discretion’). In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissable exercise of policy judgment.” [c]
The test to be applied to the cases at bar is, thus, whether the forest officials had discretion to make the choice of not taking any remedial measures with respect to the alligator problem, and, if so, whether such choice was one which Congress intended to shield from liability by virtue of § 2680(a).
[***] In Bowman v. United States, 820 F.2d 1393 (4th Cir.1987), plaintiff drove his vehicle off a federally-controlled parkway in the Shenandoah National Park. Id., at 1393. The plaintiff contended that the Government was negligent in failing to erect guardrails along the parkway or in failing to post signs warning of the steep embankment. The Court, in affirming the district court’s dismissal of the case, held that the discretionary function doctrine barred plaintiff’s suit. Id., at 1395. The Court stated that whether the decision to take no action “grew out of a lack of financial resources, a desire to preserve the natural beauty of the vista, a judgment that the hazard was insufficient to warrant a guardrail, or a combination of all three is not known. What is obvious is that the decision was the result of a policy judgment.” Id. However, the Court clearly pointed out that the danger was open and obvious and, further, that the primary purpose of the parkway was “not to facilitate transportation and travel”.
In the cases at bar, the presence of the alligator was not open and obvious to a person who chose to use the swimming area. Furthermore, one of the primary purposes (if not the primary purpose) of the national forest was to provide a recreation area for individuals who chose to visit the park. These two factors clearly distinguish Bowman from the instant cases. [***]
In the cases at bar, several of the forest officials testified that the alligator involved in this attack had lost his fear of man. Therefore, Defendant consciously disregarded a known risk by failing to take any steps whatsoever to protect users of the swimming area.
Based on the authority cited hereinbefore, it is the opinion of this Court that *1533 no reasonable range of choices existed as to the failure to take some action and, thus, the discretionary function exception is inapplicable. 28 U.S.C. § 1346(b) provides:
“Subject to the provisions of Chapter 171 [discretionary function exception] of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, * * * for injury * * * or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
In this Court’s opinion, the fact that the Government chose not to guard or warn of the alligator(s) does not invoke the protection of § 2680(a). Based on the evidence presented to this Court, no element of choice was presented when the Government failed to remove or warn of the presence of alligator(s) in the swimming area. Thus, § 2680(a) does not apply. Since the danger presented by the reptile(s) was known by the forest officials, there was no discretion to fail to take any remedial measures. Surely, it cannot be contended that the forest officials had discretion to decide whether overriding policy considerations of protecting the alligator(s) and the natural state of the area outweighed the safety of humans using the designated swimming area. Despite the fact that regulations were in place to not only protect the alligator(s), which at the time of this incident were on the endangered species list, but to also preserve the natural state of the park, this Court finds that the existence of such does not invoke the protection of § 2680 in derogation of the rights of humans.
Irrespective of the existence of such regulation and the interpretation thereof, it cannot be gainsaid that the Government, the same as a private individual, is under a duty to protect others from hidden dangers they are unaware of when such dangers pose a significant risk of serious bodily injury or death. Thus, no choice presented itself to the forest officials as to whether or not to take remedial measures to protect the individuals using the area.
This Court concedes that the decisions of whether to have a swimming area and what measures to take to protect individuals once the alligator problem arose were vested within the sound discretion of the Forest Service and, thus, protected from “judicial second-guessing” by § 2680. However, the decision to do nothing in spite of the known danger was not an option, in this Court’s opinion, the Forest Service had available to them. To contend that the decision to do nothing was discretionary because the Forest Service was under an affirmative duty to protect the alligator(s) and the scenic beauty of the park is ludicrous. If this Court were to hold that the discretionary function exception barred Plaintiffs’ suits, it would, in effect, be elevating the well-being of an alligator to a level deserving more protection than that of a human. The park was obviously built to provide a recreational area for those desiring to use such, not as a wildlife habitat where the safety of humans through their incidental use takes a back seat to the viewing of reptiles in their natural habitat. If the Forest Service were desirous of this result, it would not have created the recreational areas. The decision to do so was discretionary, but once the decision was made, the Forest Service was under a duty to act reasonably for protection of humans, particularly against hidden dangers known to the Service. Failing such standard, the Government is liable to Plaintiffs in the cases at bar. Accordingly, it is the opinion of this Court that no reasonable range of choices existed with respect to the Forest Service’s inaction, and, as such, the discretionary function doctrine of 28 U.S.C. § 2680(a) is inapplicable. Therefore, this Court finds that the Government’s discretionary function defense must fail.
[***] CONTRIBUTORY NEGLIGENCE. Defendant’s final arguments in support of a finding in its favor concern two separate and independent contentions of contributory negligence on the part of Mr. George. Defendant’s first contention is that Mr. George was aware of the presence of alligator(s) in Open Pond and, thus, assumed the risk of injury when he entered the swimming area. Defendant’s second theory of contributory negligence arises from Mr. George’s failure to have his dog on a leash while in the park which, thus, allowed the dog to precede Mr. George into the swimming area. Defendant contends that the presence of the dog attracted the alligator into the swimming area. This Court is of the opinion that both of Defendant’s contentions are without merit.
Mr. George testified that he knew alligators were present in Open Pond but that he was unaware that there were any the size of the reptile that took his arm. This Court finds by a preponderance of the evidence that Mr. George was not aware that an alligator approximately 11 feet in length inhabited the Open Pond waters. Furthermore, this Court finds that Mr. George had no knowledge of the danger presented by his entering the swimming area. Thus, this Court finds that Mr. George did not assume the risk of his injury by entering the swimming area on July 26, 1986, notwithstanding his knowledge of the presence of alligators in Open Pond.
As briefly set forth previously, Defendant’s second theory of contributory negligence arises from the fact that Mr. George violated park regulations by allowing his unleashed dog to accompany him into the park on the occasion in question. The asserted contributory negligence is that Mr. George violated the National Park’s leash law and that this violation was a proximate cause of the loss of his arm and related damages. The fact that Mr. George’s dog violated regulations by being unleashed is and was of little interest to *1536 this Court or to the subject alligator. It may be speculated that the dog’s presence lured the alligator to Mr. George. There is some evidence that alligators are known to enjoy dog meat, but the preponderance of the evidence shows that alligators are not discriminatory in their tastes and are well known to dine on whatever is convenient. The presence in this alligator’s stomach of fish stringers, a broken bottle neck and a pine cone is ample evidence that, had the dog been convenient, the leash would not have interfered with the alligator’s breakfast, whether or not this particular alligator had a preference for dog meat. This Court finds that the fact, that Mr. George violated park regulations by not keeping his dog on a leash in the park, was not a proximate or contributing cause to his injuries and damages.
Therefore, this Court finds that the Government is liable to the Plaintiffs. An Order will be entered in accordance with this Opinion.
Note 1. The court articulates the two-step test for applying the discretionary function exception: (1) whether the officials in question had discretionto make choices and (2) whether such choice was one which Congress intended to shield from liability by virtue of § 2680(a). Recall the purposes behind the FTCA as stated at the start of this section. What sorts of choices do you think are likely to be shielded from liability?
Note 2. The question of discretion exists to protect decisional autonomy under the same rationale applied to the protection of parental autonomy under theories that supported parental immunity.
In Smelser v. Paul, supra the court likens parental immunity to governmental immunity. In a section edited out of that opinion, it writes about both: “the purpose of immunity is to provide sufficient breathing space for making discretionary decisions, by preventing judicial second-guessing of such decisions through the medium of a tort action.”
One could carry the analogy further. Where some parental immunity has been retained, it is in spheres in which policymakers intended to shield parents from liability, such as the core decisions involved with raising children. Whether to come to a full or a rolling stop at a stop sign, or how well to maintain the brakes on one’s automobile, are not the kind of choice that policymakers wished to shield from liability (or wish to shield, in the jurisdictions that retain some form of parental immunity). Do you agree with the court that parental and governmental decision making are sufficiently similar to analogize in this way? Even if both require breathing space, do both deserve it equally? Is the case stronger for parents or governments, in your view?
Note 3. A persistent complexity in cases involving the discretionary function exception is whether choosing not to take affirmative steps in a given case is a legitimate choice, that is,one of the choices protected under this form of immunity. Or in the alternative, is doing nothing not one acceptable choice among many but rather a breach of duty in the form of nonfeasance? The answers are highly fact-dependent and do not produce a coherent body of case law with a general rule.
In George, the court identifies the government’s duty “to protect others from hidden dangers they are unaware of when such dangers pose a significant risk of serious bodily injury or death” and concludes that it was not a choice the forest service officials could make, to refrain from taking remedial measures. It clarified that “the decisions of whether to have a swimming area and what measures to take to protect individuals once the alligator problem arose were vested within the sound discretion of the Forest Service and, thus, protected from ‘judicial second-guessing’ by § 2680” (my emphasis). Would the case have come out differently if the Forest Service had made halfhearted, ineffective attempts to address the alligator problem? What do you imagine is the easiest (lowest burden) set of steps the Forest Service could have taken if it wanted its discretion preserved under this ruling? Was George effectively holding the Forest Service strictly liable for the presence of this large, aggressive alligator? If so, what conduct would you expect to see from the Forest Service in the future?
Note 4. What is the government’s theory of contributory negligence against George and why does it fail?
Exam tip: When analyzing governmental immunity and the applicability of the discretionary function exception to waiver of sovereign immunity under the FTCA, be sure to evaluate *both* prongs of the two-step test set out at § 2680! First, did the government actors in question have discretion to make choices? Second, were the choices over which they had discretion the kind Congress intended to shield from liability through § 2680(a)? It is easy for students to get lost in the analysis of whether there was sufficient discretion or choice under prong one and to forget to complete the analysis required under prong two. That’s an important oversight because the second prong sets the scope of the discretion and failing to attend to it would make the discretionary function exception swallow the rule.
Check Your Understanding (4-5)
Question 1. On what grounds does the court in George hold that § 2680 does not apply?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. A large nest of so-called “murder hornets” was discovered by a U.S. Forest Ranger in a park under their jurisdiction in Washington state. The nest contained scads of these rare, extremely dangerous insects. A person with a hornet sting allergy who visits this park is stung and severely injured by the encounter with one of these murder hornets two weeks after the ranger has done nothing to warn the public or to remove the nest. Under the FTCA’s waiver of governmental immunity it is possible that the ranger’s conduct could result in liability being allocated to the United States on a theory of vicarious liability. However, if the FTCA’s § 2680 discretionary function exception applies, the ranger’s conduct will fall outside the FTCA’s waiver of immunity (thus making the U.S. government immune from liability in this case).
Note: Ordinarily, under the second step of discretionary function analysis, you would need to determine whether decisions about insect management and other wildlife in federally administered state parks is the kind of discretionary decision making that Congress sought to shield from liability under the FTCA’s § 2680. However, for this question, you may assume it is generally the kind of discretionary decision making Congress sought to protect through enactment of the discretionary function exception.
Which of the following selections is most likely to failto qualify for the protection of the discretionary function exception?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Revisit the facts of Garrison v. Deschutes (Module 3, Causation), in which the Supreme Court of Oregon held that it was not negligent when Gary Garrison was severely injured in a fall at the Fryrear transfer station, in part because the defendant’s failure to warn had not caused Garrison’s injuries. Recall that there were two other issues mentioned but omitted from that version of the opinion: allegedly negligent design and governmental immunity. We turn to those now.
(334 Or. 264)
This personal injury case requires us to examine the scope of the immunity from liability that the Oregon Tort Claims Act (OTCA) grants to certain kinds of discretionary decisions of a public body. The case arose when plaintiff Gary Garrison[16] was injured when he fell from a raised concrete slab onto a lower slab at a Deschutes County (county) refuse transfer station. Plaintiffs brought the present action against the county, alleging three specifications of negligence. The county moved for summary judgment, asserting that, by virtue of ORS 30.265(3)(c) … it was immune from liability for the acts that plaintiffs alleged. The trial court agreed. On plaintiffs’ appeal, the Court of Appeals affirmed, holding that: (1) the doctrine of qualified immunity protected the exercise of discretion by county employees in designing the transfer station; and (2) the county’s failure to warn plaintiffs of the obvious danger of falling off the higher slab did not expose plaintiffs to a greater risk of harm than if they had been warned. Garrison v. Deschutes County, 162 Or.App. 160 (1999). We allowed plaintiffs’ petition for review and now affirm. [***]
A private landowner or occupier of land in a position similar to the county’s would be required to take care to protect patrons on the premises from injuries resulting from known, dangerous conditions on the premises or, at least, to warn them of the danger. Woolston v. Wells, 297 Or. 548, 557-58 (1984). [***] The county is not a private entity, however. The question before the court, therefore, is whether the fact that *273 the refuse station is not privately owned and operated alters the analysis. The answer to that question lies in the applicability of the OTCA, ORS 30.260 et seq., which provides that public bodies generally are liable for their torts, except in certain limited circumstances.
In this case, the county has asserted throughout that one of those circumstances pertains here. It contends that it is entitled to “discretionary function” immunity under ORS 30.265(3)(c), which we again set out here for the convenience of the reader. That subsection provides, in part:
“Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for:
“ * * * * *
“(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”
By its terms, ORS 30.265(3)(c) confers immunity on the county, as a public body, from liability for the negligent performance or nonperformance of a “discretionary function or duty.” The OTCA does not define that phrase. However, the statute’s meaning and scope have been fleshed out through years of litigation. For example, this court has discussed the meaning of the term “discretion” in ORS 30.265(3)(c) on several occasions. In McBride v. Magnuson, 282 Or. 433, 437 (1978), the court stated that conduct is “discretionary” in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropriate level of government:
“[I]nsofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has ‘discretion’ to the extent that he has been delegated responsibility for the latter kind of value judgment.”
This court also has stated that ORS 30.265(3)(c) extends immunity “to decisions involving the making of policy, but *274 not to routine decisions made by employees in the course of their day-to-day activities, even though the decision involves a choice among two or more courses of action.” [c]
Notwithstanding the foregoing, the court has stated that the “discretionary immunity” doctrine does not immunize a decision not to exercise care at all, if action of some kind is required:
“A public body that owes a particular duty of care * * * has wide policy discretion in choosing the means by which to carry out that duty. * * * The range of permissible choices does not, however, include the choice of not exercising care.” Mosley v. Portland School Dist. No. 1J, 315 Or. 85, 92, (1992) (citations omitted).
In other words, the decision whether to protect the public by taking preventive measures, or by warning of a danger, if legally required, is not discretionary; however, the government’s choice of means for fulfilling that requirement may be discretionary. [cc]
Moreover, only those decisions that are made by officials in a position of authority are immune from liability. [***] However, in assessing whether, in a particular case, a decision was made by the kinds of decision-makers to whom the statutory immunity was intended to extend, the emphasis properly is on the nature of the decision-making, not necessarily the level of office. “Although policy discretion is more likely to be found at or near the level of political responsibility, it is not simply a matter of the defendant’s office but of the scope and nature of the choices delegated to him.” [c] [***] *275
With the foregoing standards in mind, we turn to the facts of the present case to evaluate whether the decision to build and maintain the refuse transfer station without erecting barriers at the edge of the platform that might prevent people from falling and the decision to design the station so as to require people using the facility to back a vehicle onto the platform to dump refuse were decisions that involved the making of policy by people who had been delegated the authority to make that type of policy judgment.
Driver’s affidavit, which is undisputed, demonstrates that he and Rice, in the course of selecting a design for the transfer station, made various decisions that were of a type that this court previously has considered to be “discretionary” or “the making of policy”: They considered various design options for the station; they evaluated the relative effectiveness, safety and risks, as well as the relative costs and benefits, of constructing the station with and without the platform; they also considered the added maintenance and resulting cost of adding a fence, railing, or other barrier to the platform, as well as whether adding a fence, railing, or other barrier would make the platform more difficult or more dangerous to use. In the end, they concluded that the design that they ultimately chose-a platform that required users to back a vehicle up to dump refuse, with no barrier other than the railroad tie to protect users from falling-was the safest, least expensive, *276 and easiest to use. Thus, in selecting the final design under those criteria, Rice and Driver exercised the kind of discretion that ORS 30.265(3)(c) protects-a protection that extends to the county’s operation of the refuse transfer station in accordance with that design.
Plaintiffs have attempted to characterize that final design decision differently. They contend that the county had a duty to protect the public and that the county did not satisfy that duty merely by “considering” public safety and then deciding that safety measures would not be adopted, whether due to expense, inconvenience, or some other reason. In effect, plaintiffs assert that the county owed a duty of care to the public that used the refuse transfer station and simply chose not to exercise care. Under this court’s decision in Mosley, they contend, that choice was not within the permissible range of options available to the county and, therefore, was not entitled to immunity.
Plaintiffs’ argument is premised on a mischaracterization of the undisputed facts. According to Driver’s affidavit, Driver and Rice actively considered the relative risks and benefits of including in the final design just the sort of fall protection devices that plaintiffs contend are required to protect the public. For various reasons, Driver and Rice concluded that protective barriers actually would make the platform less safe. We assume for purposes of this opinion that that conclusion might have been both wrong and negligently reached. Nonetheless, the uncontroverted evidence of that thinking process establishes conclusively that this is not a case in which the decision-makers simply disregarded their duty to protect the public. On the contrary, with their decision, even if it was flawed, they exercised their discretion and chose to protect the public in a particular way. Plaintiffs wish to argue that the county should have done something more, or something different, but that argument is the kind of second-guessing that is defeated by immunity under ORS 30.265(3)(c).
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
*280 DURHAM, J., dissenting.
For the reasons stated below, I believe that the majority misapplies the statutory immunity for the performance of a “discretionary function or duty” set out in ORS 30.265(3)(c). [***] Plaintiffs contend that, on the date of the accident, defendant invited the public to use its refuse facility and that plaintiffs were business invitees at the time of the accident. According to plaintiffs, defendant knew that the large concrete garbage pit on the premises created an unreasonably dangerous condition due to the lack of any fall protection device, but failed to use reasonable care to eliminate the risk of injury to invitees or to warn of the danger.
Plaintiffs’ claim invokes the legal duty owed by a land occupier to business invitees. This court summarized that duty in Woolston v. Wells, 297 Or. 548, 557-58 (1984):
“In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee’s visit. *281 The possessor must exercise the standard of care above stated to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm.”
[***] Defendant’s duty to business invitees, as described in Woolston, is not a “discretionary function or duty,” to use the terms of ORS 30.265(3)(c).[17] Rather, defendant’s duty, as *282 summarized in Woolston, is nondiscretionary. That is, the law has made a policy choice, for defendant as well as all other landowners and occupiers who invite customers to enter their property, that mandates compliance with the legal duty described in Woolston. As this court explained in Miller v. Grants Pass Irr. Dist., 297 Or. 312 (1984), a public body may have discretion in choosing how it will satisfy its duty to the public but it has no discretion to choose not to fulfill its legal duty:
“If there is a legal duty to protect the public by warning of a danger or by taking preventing measures, or both, the choice of means may be discretionary, but the decision whether or not to do so at all is, by definition, not discretionary.
“This is so whether the duty derives from statutory or from common law. * * * The law itself has made that much of a policy choice. When different precautions might satisfy this duty, however, the choice of which one to use may be discretionary.” Id. at 320.
The passage from Miller, quoted above, confirms that a public body has no discretion to decide whether to satisfy a legal duty imposed by Oregon common law. Defendant simply is incorrect in arguing (1) that the range of its permissible discretionary choices included the choice to do nothing to comply with the duty stated in Woolston, or (2) that its consideration of policy-related criteria, coupled with a choice to take no precautions against the risk of falls at the edge of the *284 pit, qualifies under Miller as a choice of means to satisfy the duty described in Woolston. [***]
More puzzling is the majority’s effort to portray defendant’s conduct as an “exercise [of] care” that defendant’s agents believed to be more safe than what plaintiffs sought. Id. The assertion that defendant did exercise care in designing the refuse pit contradicts the majority’s assumption that defendant’s decision to forego any fall protection devices “might have been both wrong and negligently reached.” Id. at 276. Moreover, because the case is before the court on summary judgment, we must construe the evidence in the light most favorable to plaintiffs. In view of the contention of plaintiffs’ expert witness that the design of the refuse pit was unreasonably dangerous, the majority’s conclusion that defendant exercised care is both irrelevant and impermissible.
Lastly, the mere belief of defendant’s agents in the greater safety of their design is irrelevant. Plaintiffs rely on defendant’s failure to take any precautions to eliminate the known risk that customers might fall into the refuse pit-a nondiscretionary legal duty imposed by Oregon law. See Woolston, 297 Or. at 557-58 (describing legal duty). While the confidence displayed by defendant’s agents is understandable, it does not justify immunizing defendant for failing to adopt any precautions against a known risk of injury from falls, in accordance with Oregon law.
This is not a case in which defendant made a choice to use a device to protect against falls, but the device simply failed to function. Rather, defendant seeks discretionary immunity for its decision not to use any protection against the risk of falling, i.e., choosing not to use reasonable care to “eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm.” Id. at 558. Defendant’s argument, carried to *287 its logical conclusion, would immunize a public body’s decision to disregard its nondiscretionary legal duty, simply because the public body believed that its policy reasons for avoiding its legal duty were superior to the policy reasons that supported creation of the legal duty in the first instance. The legislature did not intend that construction of ORS 30.265(3)(c).
Because defendant has not demonstrated that it is entitled to immunity from liability at this stage of the proceeding, the trial court should have denied defendant’s motion for summary judgment. Accordingly, I respectfully dissent.
Note 1. “Discretion” is defined in Garrison to include: “both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities.”
When cast in this way, the discretion would seem to consist of a huge range of government actions. Is the discretionary function exception more properly understood as a default to immunity, with only truly ministerial (non-discretionary) tasks subject to the possibility of tort liability?
Note 2. In finding the discretionary exception applied, the majority reasoned: “[T]he decision whether to protect the public by taking preventive measures, or by warning of a danger, if legally required, is not discretionary; however, the government’s choice of means for fulfilling that requirement may be discretionary.” [cc] In some respects, this distinction parallels the dividing line between duty and breach; duty expresses a legal obligation and breach specifies what conduct the duty requires on a given set of facts. Does that dividing line seem to you to apply here?
Note 3. What are the dissent and the majority opinions arguing over? How is it that they cite some of the same cases for seemingly different purposes? Whose opinion is more persuasive to you?
4. Limits on Governmental Liability: The Public Duty Doctrine
Sovereign immunity has been waived by the federal, state, tribal and local governments with respect to many different functions, such as permitting recovery against negligently driving mail carriers, as you learned above. However, the scope of the duty owed by governments outside the clearly waived immunity has not always been clear. To be sure, governmental immunity was partially to be waived but partially to be retained, but the question was, waived as to what? The flip side of this question was one of duty: to whom, and for what, did the government still owe a duty once it had waived its blanket immunity? Recall that at common law there was no duty “to rescue,” or to engage in certain affirmative steps unless particular relationships or contracts or categories imposed a duty. A doctrine known as “the public duty doctrine” arose to define and delimit a sphere of obligation to the public.
The next case features an abusive relationship, and violent actions by a rejected ex-boyfriend whose threats the police did not take seriously enough to act on before they resulted in serious physical injury. The court does not find liability and both the majority and dissenting opinions are notable for their deep discussions of policy with respect to the interconnections between duty and immunity.
(22 N.Y.2d 579)
[Editor’s Note: The description of the facts in this case is taken from the dissenting opinion of Judge Keating (which the majority opinion points to, in omitting its own discussion of the facts).]
Linda Riss, an attractive young woman, was for more than six months terrorized by a rejected suitor well known to the courts of this State, one Burton Pugach. This miscreant, masquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if she did not yield to him: ‘If I can’t have you, no one else will have you, and when I get through with you, no one else will want you.’ In fear for her life, she went to those charged by law with the duty of preserving and safeguarding the lives of the citizens and residents of this State. Linda’s repeated and almost pathetic pleas for aid were received with little more than indifference. Whatever help she was given was not commensurate with the identifiable danger. On June 14, 1959 Linda became engaged to another man. At a party held to celebrate the event, she received a phone call warning her that it was her ‘last chance.’ Completely distraught, she called the police, begging for help, but was refused. The next day Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye in Linda’s face. Linda was blinded in one eye, lost a good portion of her vision in the other, and her face was permanently scarred. After the assault the authorities concluded that there was some basis for Linda’s fears, and for the next three and one-half years, she was given around-the-clock protection.”
This appeal presents, in a very sympathetic framework, the issue of the liability of a municipality for failure to provide special protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered dire personal injuries for lack of such protection. … The issue arises upon the affirmance by a divided Appellate Division of a dismissal of the complaint, after both sides had rested but before submission to the jury. It is necessary immediately to distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises, such as are involved in the operation of rapid transit systems, hospitals, and places of public assembly. Once sovereign immunity was abolished by statute the extension of liability on ordinary principles of tort law logically followed. To be equally distinguished are certain activities of government which provide services and facilities for the use of the public, such as highways, public buildings and the like, in the performance of which the municipality or the State may be liable under ordinary principles of tort law. The ground for liability is the provision of the services or facilities for the direct use by members of the public.
In contrast, this case involves the provision of a governmental service to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers. [cc] The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to *582 how those resources may be deployed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits. This is quite different from the predictable allocation of resources and liabilities when public hospitals, rapid transit systems, or even highways are provided. Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that that should be the scope of public responsibility. It is notable that the removal of sovereign immunity for tort liability was accomplished after legislative enactment and not by any judicial arrogation of power (Court of Claims Act, §8). [***]
When one considers the greatly increased amount of crime committed throughout the cities, but especially in certain portions of them, with a repetitive and predictable pattern, it is easy to see the consequences of fixing municipal liability upon a showing of probable need for and request for protection. To be sure these are grave problems at the present time, exciting high priority activity on the part of the national, State and local governments, to which the answers are neither simple, known, or presently within reasonable controls. To foist a presumed cure for these problems by judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of judicial wisdom and power not possessed by the courts. *583 [***] For all of these reasons, there is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts, in the absence of legislation, to carve out an area of tort liability for police protection to members of the public. Quite distinguishable, of course, is the situation where the police authorities undertake responsibilities to particular members of the public and expose them, without adequate protection, to the risks which then materialize into actual losses [c].
Accordingly, the order of the Appellate Division affirming the judgment of dismissal should be affirmed.
KEATING, JUDGE (dissenting)
Certainly, the record in this case, sound legal analysis, relevant policy considerations and even precedent cannot account for or sustain the result which the majority have here reached. For the result is premised upon a legal rule which long ago should have been abandoned, having lost any justification it might once have had. Despite almost universal condemnation by legal scholars, the rule survives, finding its continuing strength, not in its power to persuade, but in its ability to arouse unwarranted judicial fears of the consequences of overturning it.
No one questions the proposition that the first duty of government is to assure its citizens the opportunity to live in personal security. And no one who reads the record of Linda’s ordeal can reach a conclusion other than that the City of New York, acting through its agents, completely and negligently failed to fulfill this obligation to Linda.
Linda has turned to the courts of this State for redress, asking that the city be held liable in damages for its negligent failure to protect her from harm. With compelling logic, she can point out that, if a stranger, who had absolutely no obligation to aid her, had offered her assistance, and thereafter Burton Pugach was able to injure her as a result of the negligence of the volunteer, the courts would certainly require him to pay damages. (Restatement, 2d, Torts, § 323.) Why then should the city, whose duties are imposed by law and include the prevention of crime (New York City Charter, § 435) and, consequently, extend far beyond that of the Good Samaritan, not be responsible? If a private detective acts carelessly, no one would deny that a jury could find such conduct unacceptable. Why then is the city not required to live up to at least the same minimal standards of professional competence which would be demanded of a private detective?
Linda’s reasoning seems so eminently sensible that surely it must come as a shock to her and to every citizen to hear the city argue and to learn that this court decides that the city has no duty to provide police protection to any given individual. What makes the city’s position particularly difficult to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense (former Penal Law, §1897). Thus, by a rather bitter irony she was required to rely for protection *585 on the City of New York which now denies all responsibility to her.
It is not a distortion to summarize the essence of the city’s case here in the following language: “Because we owe a duty to everybody, we owe it to nobody.” [***] To say that there is no duty is, of course, to start with the conclusion. The question is whether or not there should be liability for the negligent failure to provide adequate police protection. The foremost justification repeatedly urged for the existing rule is the claim that the State and the municipalities will be exposed to limitless liability. The city invokes the specter of a “crushing burden” (Steitz v. City of Beacon, 295 N. Y. 51, 55) if we should depart from the existing rule and enunciate even the limited proposition that the State and its municipalities can be held liable for the negligent acts of their police employees in executing whatever police services they do in fact provide (cf. dissenting opn. per Desmond, J., in Steitz v. City of Beacon, citation omitted).
The fear of financial disaster is a myth. The same argument was made a generation ago in opposition to proposals that the State waive its defense of “sovereign immunity”. The prophecy proved false then and it would now. The supposed astronomical financial burden does not and would not exist. No municipality has gone bankrupt because it has had to respond in damages when a policeman causes injury through carelessly driving a police car or in the thousands of other situations where, by judicial fiat or legislative enactment, the State and its subdivisions have been held liable for the tortious conduct of their employees. Thus, in the past four or five years, New York City has been presented with an average of some 10,000 claims each year. The figure would sound ominous except for the fact the city has been paying out less than \$8,000,000 on tort claims each year and this amount includes all those sidewalk defect and snow and ice cases about which the courts fret so often. [c] Court delay has reduced the figure paid *586 somewhat, but not substantially. Certainly this is a slight burden in a budget of more than six billion dollars (less than two tenths of 1%) and of no importance as compared to the injustice of permitting unredressed wrongs to continue to go unrepaired. That Linda Riss should be asked to bear the loss, which should properly fall on the city if we assume, as we must, in the present posture of the case, that her injuries resulted from the city’s failure to provide sufficient police to protect Linda is contrary to the most elementary notions of justice.
The statement in the majority opinion that there are no predictable limits to the potential liability for failure to provide adequate police protection as compared to other areas of municipal liability is, of course, untenable. When immunity in other areas of governmental activity was removed, the same lack of predictable limits existed. Yet, disaster did not ensue.
Another variation of the “crushing burden” argument is the contention that, every time a crime is committed, the city will be sued and the claim will be made that it resulted from inadequate police protection. Here, again, is an attempt to arouse the “anxiety of the courts about new theories of liability which may have a far-reaching effect” [c]. And here too the underlying assumption of the argument is fallacious because it assumes that a strict liability standard is to be imposed and that the courts would prove completely unable to apply general principles of tort liability in a reasonable fashion in the context of actions arising from the negligent acts of police and fire personnel. The argument is also made as if there were no such legal principles as fault, proximate cause or foreseeability, all of which operate to keep liability within reasonable bounds.
No one is contending that the police must be at the scene of every potential crime or must provide a personal bodyguard to every person who walks into a police station and claims to have been threatened. They need only act as a reasonable man would under the circumstances. At first there would be a duty to inquire. If the inquiry indicates nothing to substantiate the alleged threat, the matter may be put aside and other matters attended to. If, however, the claims prove to have some basis, appropriate steps would be necessary. *587
The instant case provides an excellent illustration of the limits which the courts can draw. No one would claim that, under the facts here, the police were negligent when they did not give Linda protection after her first calls or visits to the police station in February of 1959. The preliminary investigation was sufficient. If Linda had been attacked at this point, clearly there would be no liability here. When, however, as time went on and it was established that Linda was a reputable person, that other verifiable attempts to injure her or intimidate her had taken place, that other witnesses were available to support her claim that her life was being threatened, something more was required—either by way of further investigation or protection— than the statement that was made by one detective to Linda that she would have to be hurt before the police could do anything for her. [***]
More significant, however, is the fundamental flaw in the reasoning behind the argument alleging judicial interference. It is a complete oversimplification of the problem of municipal tort liability. What it ignores is the fact that indirectly courts are reviewing administrative practices in almost every tort case against the State or a municipality, including even decisions of the Police Commissioner.
The truth of the matter, however, is that the courts are not making policy decisions for public officials. In all these municipal negligence cases, the courts are doing two things. First, they apply the principles of vicarious liability to the operations of government. Courts would not insulate the city from liability for the ordinary negligence of members of the highway department. There is no basis for treating the members of the police department differently. Second, and most important, to the extent that the injury results from the failure to allocate sufficient funds and resources to meet a minimum standard of public administration, public officials are presented with two alternatives: either improve public administration or accept the cost of compensating injured persons. Thus, if we were to hold the city liable here for the negligence of the police, courts would no more be interfering with the operations of the police department than they “meddle” in the affairs of the highway department when they hold the municipality liable for personal injuries resulting from defective sidewalks, or a private employer for the negligence of his employees. In other words, all the courts do in these municipal negligence cases is require officials to weigh the consequences of their decisions. If Linda Riss’ injury resulted from the failure of the city to pay sufficient salaries to attract qualified and sufficient personnel, the full cost of that choice should become acknowledged in the same way as it has in other areas of municipal tort liability. Perhaps officials will find it less costly to choose the alternative of paying damages than changing their existing practices. That may be well and good, but the price for the refusal to provide for an adequate police force should not be borne by Linda Riss and all the other innocent victims of such decisions.
What has existed until now is that the City of New York and other municipalities have been able to engage in a sort of false *590 bookkeeping in which the real costs of inadequate or incompetent police protection have been hidden by charging the expenditures to the individuals who have sustained often catastrophic losses rather than to the community where it belongs, because the latter had the power to prevent the losses.
Although in modern times the compensatory nature of tort law has generally been the one most emphasized, one of its most important functions has been and is its normative aspect. It sets forth standards of conduct which ought to be followed. The penalty for failing to do so is to pay pecuniary damages. At one time the government was completely immunized from this salutary control. This is much less so now, and the imposition of liability has had healthy side effects. In many areas, it has resulted in the adoption of better and more considered procedures just as workmen’s compensation resulted in improved industrial safety practices. To visit liability upon the city here will no doubt have similar constructive effects. No “presumed cure” for the problem of crime is being “foisted” upon the city as the majority opinion charges. The methods of dealing with the problem of crime are left completely to the city’s discretion. All that the courts can do is make sure that the costs of the city’s and its employees’ mistakes are placed where they properly belong. Thus, every reason used to sustain the rule that there is no duty to offer police protection to any individual turns out on close analysis to be of little substance.
The rule is judge made and can be judicially modified. By statute, the judicially created doctrine of “sovereign immunity” was destroyed. It was an unrighteous doctrine, carrying as it did the connotation that the government is above the law. Likewise, the law should be purged of all new evasions, which seek to avoid the full implications of the repeal of sovereign immunity. No doubt in the future we shall have to draw limitations just as we have done in the area of private litigation, and no doubt some of these limitations will be unique to municipal liability *593 because the problems will not have any counterpart in private tort law. But if the lines are to be drawn, let them be delineated on candid considerations of policy and fairness and not on the fictions or relics of the doctrine of “sovereign immunity”. Before reaching such questions, however, we must resolve the fundamental issue raised here and recognize that, having undertaken to provide professional police and fire protection, municipalities cannot escape liability for damages caused by their failure to do even a minimally adequate job of it.
The Appellate Division did not adopt the “no duty” theory, but said there was no negligence here because the danger was not imminent. Despite the fact that the majority of the Appellate Division “agree[d] that certain rulings, and particularly the manner in which they were made, did not add to the appearance of a fair trial”, and which, in fact, resulted in a wholly inadequate hearing, the majority found that the “facts brought out on this trial do not show the presence of such imminent danger that extraordinary police activity was so indicated that the failure to take it can be deemed unreasonable conduct.” This finding does not stand examination and to its credit the city does not argue that this record would not support a finding of negligence. The danger to Linda was indeed imminent, and this fact could easily have been confirmed had there been competent police work.
Moreover, since this is an appeal from a dismissal of the complaint, we must give the plaintiff the benefit of every favorable inference. The Appellate Division’s conclusion could only have been reached by ignoring the thrust of the plaintiff’s claim and the evidence in the record. A few examples of the actions of the police should suffice to show the true state of the record.
Linda Riss received a telephone call from a person who warned Linda that Pugach was arranging to have her beaten up. A detective learned the identity of the caller. He offered to arrest the caller, but plaintiff rejected that suggestion for the obvious reason that the informant was trying to help Linda. When Linda requested that Pugach be arrested, the detective said he could not do that because she had not yet been hurt. The statement was not so. It was and is a crime to conspire to injure someone. True there was no basis to arrest Pugach then, but that was only because the necessary leg work had not been done. No one *594 went to speak to the informant, who might have furnished additional leads. Linda claimed to be receiving telephone calls almost every day. These calls could have been monitored for a few days to obtain evidence against Pugach. Any number of reasonable alternatives presented themselves. A case against Pugach could have been developed which would have at least put him away for awhile or altered the situation entirely. But, if necessary, some police protection should have been afforded.
Perhaps, on a fuller record after a true trial on the merits, the city’s position will not appear so damaging as it does now. But with actual notice of danger and ample opportunity to confirm and take reasonable remedial steps, a jury could find that the persons involved acted unreasonably and negligently. Linda Riss is entitled to have a jury determine the issue of the city’s liability. This right should not be terminated by the adoption of a question-begging conclusion that there is no duty owed to her. The order of the Appellate Division should be reversed and a new trial granted.
Note 1. What does the court mean when it writes: “Quite distinguishable, of course, is the situation where the police authorities undertake responsibilities to particular members of the public and expose them, without adequate protection, to the risks which then materialize into actual losses”? Did Riss not suffer actual losses? What sorts of actions would constitute, in your view, an “undertaking” of “responsibilities to particular members of the public”?
Note 2. The dissent states that “No one is contending that the police must be at the scene of every potential crime or must provide a personal bodyguard to every person who walks into a police station and claims to have been threatened” (although after Riss, in fact, the NYPD did assign a full-time bodyguard to her). Instead, the dissent writes that the police “need only act as a reasonable man would under the circumstances. At first there would be a duty to inquire. If the inquiry indicates nothing to substantiate the alleged threat, the matter may be put aside and other matters attended to. If, however, the claims prove to have some basis, appropriate steps would be necessary.” What are the costs and benefits of applying a reasonableness standard to police protection? What are the implications of doing so, in terms of allocating decision authority between judge and jury, or in terms of the institutional competence of courts versus legislators? What do you think is the right answer, normatively, here?
Note 3. The facts of Riss are upsetting, whatever one feels about the normative propositions expressed in the two differing opinions. Pugach’s violent assault and partially blinding Riss seems like a culmination of threats he had made, and they were part of a pattern of anger and retribution on behalf of a jilted lover. The facts point to deeper societal problems of sexism, controlling relationships and domestic violence, as well as to the law’s sometimes-peripheral role in addressing these. The opinion does not address the psychological issues inherent in dynamics of harassment and control, such as those that are often involved in abusive relationships. In this case, the facts are a tragic testament to how deeply the psychological issues can run. This obituary from Riss’s 2013 passing tells part of the story of her life with Pugach, whom she married after he was released from jail, and it opens with the following summary:
She was 22, a sheltered, dark-haired Bronx beauty said to look like Elizabeth Taylor. He was a decade older, a suave lawyer who courted her with flowers, rides in his powder-blue Cadillac and trips to glittering Manhattan nightclubs. He was married, though not to her. Before long, tiring of his unfulfilled promises to divorce his wife, she ended their affair. He hired three men, who threw lye in her face, blinding her, and went to prison for more than a decade. Afterward, she married him.
https://www.nytimes.com/2013/01/24/nyregion/linda-riss-pugach-whose-life-was-ripped-from-headlines-dies-at-75.html
This excerpt’s conclusion hints at the unusual nature of Riss’s 38-year marriage to Pugach but it was even more sensational and difficult for outsiders to understand. Their relationship, including many aspects of its abuse, was documented in a book and a documentary, Crazy Love, released in 2007. According to the New York Times, the documentary is “[p]art cautionary tale, part psychological study, part riveting disaster narrative.” It is difficult to watch but recommended for those interested in the dynamics of abusive relationships. It also implicates the New York Police Department once again but in a more surprising way. A female bodyguard was assigned to guard Riss after Pugach blinded her, and Riss and her guard became friends. When Pugach, from prison, decided to woo Riss again, he appealed to the bodyguard and she ultimately intervened to help Pugach court Riss (apparently quite in contravention of her employment mandate to protect Riss from him at all costs). After the couple reunited, however, Pugach eventually resumed his womanizing. The obituary describes a trial in 1997 during which Pugach was tried for charges of abuse and attempted murder of a different woman while married to Linda Riss (now “Mrs. Pugach”): “At the trial, at which Mr. Pugach represented himself, Mrs. Pugach testified on his behalf, telling him in open court, ‘You’re a wonderful, caring husband.’ The alleged victim in the case was Mr. Pugach’s mistress of five years.”
Does knowing about the abusive dynamic between Riss and Pugach lend support for one or the other of the opinions in Riss? Tort law has tended to keep its distance from domestic violence, historically treating spouses and domestic partners as presumptively immune from tort liability for harms they cause each other, partly out of longstanding concerns that courts are not the right entity to “interfere” with familial relations and could make problems worse. Scholarship has also long shown that the reluctance to use tort law to help victims of domestic violence reflects latent misogyny in the legal system. In your view, is this an area in which policy concerns ought to militate in favor of more or less regulation through tort law? What are the countervailing factors in your consideration?
Note 4. How far should discretion for police decisionmaking extend with respect to their assessments of threat and their allocation of resources to respond to given threats? How realistic or reasonable is it to anticipate that they will make these predictions accurately? How accurately does tort law, or should tort law, expect the police to make such predictions? The dissent talks about a strict liability standard; is this the likely outcome of holding the police liable when they make the wrong call?
Check Your Understanding (4-6)
Question 1. When the dissent in Riss v. NYC summarizes the majority’s rule as saying, “Because we owe a duty to everybody, we owe it to nobody,” he is making reference to which of the following:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. Real-time transcription, also known as videotext display or close captioning, is a computer-aided transcription device that converts typing from the court reporter’s stenographic machine into English language text displayed on a computer screen.
2. Editor’s note: Seattle is in King County, to the East of Kitsap County (which covers Bremerton, Bainbridge Island and Poulsbo). For context, according to the 2010 census numbers, King County’s population was 1.938 million; Kitsap County’s was 251,133.
3. In his complaint, Duvall requested a declaration “that defendants have unlawfully discriminated against Plaintiff by refusing to provide real time captioning for his dissolution of marriage proceedings.” Because Duvall ultimately received real time transcription and the county now provides that service for hearing-impaired individuals, his claims for declaratory relief are now moot. [c]. His suit for damages, however, is not. [c] We therefore discuss only the claims for damages.
4. Although neither the Rehabilitation Act nor Title II of the ADA, on its face, requires the provision of sign-language interpreters as an accommodation for hearing-impaired individuals, the regulations promulgated by the Attorney General under Title II list sign-language interpreters and videotext display as among the accommodations required, in appropriate circumstances, by the ADA. 28 C.F.R § 35.104(1).
5. See also Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996) (according immunity to clerk of the United States District Court for the Southern District of California given nature of the responsibilities); Sharma v. Stevas, 790 F.2d 1486 (9th Cir. 1986) (clerk of United States Supreme Court has quasi-judicial immunity); Morrison v. Jones, 607 F.2d 1269, 1273 (9th Cir. 1979) (court clerk’s “failure ... to perform a ministerial duty [giving notice of order] which was a part of judicial process is also clothed with quasi-judicial immunity”); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (recognizing quasi-judicial immunity for clerk of Montana state court from damages but not injunctive relief); Harmon v. Superior Court, 329 F.2d 154, 155 (9th Cir. 1964) (recognizing absolute immunity for county clerk and other judicial personnel).
6. “Administrative functions are actions which are significant independent of the fact that the actor is a judge, such as the hiring or firing of staff members.” Partington v. Gedan, 961 F.2d 852, 866 (9th Cir. 1992) [c]).
7. (For further discussion, see e.g. https://www.psychologytoday.com/us/blog/talking-apes/201802/is-deafness-really-disability and Erica R. Harvey, Deafness: A Disability or a Difference (2013), 2 Health Law & Policy 42 (2008), available at: https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1073&context=hlp)
8. This rationale began to be questioned after the widespread enactment of statutes known as Married Women’s Acts, beginning in the mid-nineteenth century, which gave wives many of the rights that their husbands had always enjoyed. Some courts thus found it necessary to develop new theories to support the concept of interspousal immunity. The idea that most often found favor was that “personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home....” Restatement, supra, § 895F, comment d. Other courts, including this one, simply held that “[t]he common law rule forbid[ding] a wife to sue her husband for any tort committed against her ... [was] unaffected by the Married Women’s Act.” Mountjoy v. Mountjoy, 206 A.2d 733, 733 (D.C.) (citations omitted), appeal denied, 121 U.S.App.D.C. 27, 347 F.2d 811 (1965). The common law doctrine of interspousal immunity was abolished in the District of Columbia by statute in 1976. D.C.Code § 30–201 (1981) now provides in pertinent part:
The fact that a person is or was married shall not, after October 1, 1976, impair the rights and responsibilities of such person, which are hereby granted or confirmed, to ... engage ... in any civil litigation of any sort (whether in contract, tort, or otherwise) with or against anyone, including such person's spouse, to the same extent as an unmarried person.... [Emphasis added.]
Given this enactment, it would be anomalous indeed for this court to adopt parent-child immunity as the law of the District of Columbia when the most frequently cited rationale for that doctrine—the need to preserve domestic tranquility and family unity—has been rejected by our own legislature in abolishing interspousal immunity.
9. See, e.g., Dzenutis v. Dzenutis, 200 Conn. 290, 512 A.2d 130 (1986) (no immunity when child’s injury arose out of a business activity conducted by the parent away from the home); Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610 (1950) (no immunity when death of either parent or child terminates the parental relationship); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930) (no immunity for intentional or reckless infliction of bodily harm).
10. We think it significant that such a possibility of conspiracy between husband and wife did not dissuade the Council of the District of Columbia from abolishing interspousal immunity more than ten years ago. See note 1 [8], supra.
11. We emphasize that we are accepting section 895G in its entirety. We are aware that subsection (2) recognizes, or at least assumes, that certain acts or omissions may be privileged or non-tortious by reason of the parent-child relationship. We need not attempt in this case to identify the types of conduct that may be privileged or non-tortious under subsection (2); that will have to be done in the future on a case-by-case basis. As the Restatement tells us, “[t]hese problems are comparatively new to the courts as a result of the recent abrogation of immunity, and the courts have not yet worked out a full analysis of the proper legal treatment.” RESTATEMENT, supra, § 895G, comment k. We defer that “full analysis” until we are faced with a case that requires it.
12. “Because a child has only limited knowledge and ability in legal matters, the decision to sue is usually made by his parents.” Hollister, supra, 50 FORDHAM L. REV. at 500. See Streenz v. Streenz, 106 Ariz. 86, 88, 471 P.2d 282, 284 (1970) (“Where [automobile liability] insurance exists ... in reality the sought after litigation is not between child and parent but between child and parent's insurance carrier.”); Sorensen v. Sorensen, 369 Mass. 350, 362, 339 N.E.2d 907, 914 (1975) (“When insurance is involved, the action between parent and child is not truly adversary....”).
13. We refer to Derrick by his first name for clarity.
14. RCW 4.22.015 defines “fault” as “acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability or liability on a product liability claim. The term also includes breach of warranty, unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. “A comparison of fault for any purpose under RCW 4.22.005 through 4.22.060 shall involve consideration of both the nature of the conduct of the parties to the action and the extent of the causal relation between such conduct and the damages.”
15. The evidence showed that Donna Jean Loman was attacked by this alligator in 1981. After the attack, this particular alligator was captured and released five miles from Open Pond in Yellow River. In 1983, another swimmer claimed that he was bitten on the arm by an alligator. Mr. John Maurer, Forest Technician at the Conecuh National Forest in 1983, investigated his allegations and concluded that he had not been attacked by an alligator but, rather, had been stabbed in the arm with a barbecue fork by his wife during a domestic dispute. Notwithstanding Mr. Maurer’s conclusions as to that incident, the clubfooted alligator was again trapped and removed to South Carolina.
16. Plaintiffs are Gary Garrison, who seeks damages for his own injuries, and Heather Garrison, his wife, who seeks damages for loss of consortium.
17. In his concurring opinion in Miller v. Grants Pass Irr. Dist., 297 Or. 312, 323-24, 686 P.2d 324 (1984), Justice Lent opined that the notion of a “discretionary duty,” which the text of ORS 30.265(3)(c) embraces, is a contradiction in terms that detracts from a principled statutory analysis. He did, however, offer the following explanation, with which I agree, regarding the concepts of discretion and legal duty in the application of ORS 30.265(3)(c): “I do have trouble envisioning a discretionary duty. ORS 30.265(1), speaking generally, makes the state or a local public body liable for its torts. In order for there to be a tort the actor must breach some duty imposed by law, that is, by legislative enactment (statute, rule, regulation, charter, ordinance, etc.) or the common law. The duty must be identified and proclaimed to exist by a court, as a matter of law, not fact. A duty either exists or it does not. The law either commands someone to act, or refrain from acting, or it does not. In this case, the Irrigation District chose to build and operate a dam. Having done so, it should be held to the same duty as would any person, natural or corporate, have in the operation of a dam and the impoundment of water, to protect those on the water from an unreasonable risk of harm arising from the District's activities in this respect. If legislation or the common law imposes a duty on a dam operator in these circumstances, there is nothing ‘discretionary’ about the existence of the duty, nor can it be described by that adjective. There may be, and probably is, room for discretion in choosing the manner of performance, both for a private person or a public agency, but the duty must be performed and the standard of care required by the duty must be achieve. To sum up, a discretionary function is one concerning which the governmental agency involved has power to make a choice among valid alternatives, but if there is a duty imposed by law there is no choice but to obey. If there is no duty, to which adherence is required, then the agency is concerned with a function rather than a duty. I really don’t know what a discretionary duty looks like.” | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/04%3A_Defenses_Privileges_Immunities_and_Limitations/4.02%3A_Immunities.txt |
Statutes of Limitation. Statutes of limitation are mandatory deadlines by which a plaintiff must bring a claim in a civil case or lose their ability to pursue it. In many, if not most torts cases, the statute of limitations is two or three years; the law of the forum determines the length. For certain narrow areas that involve long-term projects (like architecture and construction) or long-lasting harm (such as in latent chemical pollution cases), there may be longer prescribed periods of potential liability. In a number of jurisdictions, defamation actions have a one-year limit.
In some cases, parties try to present their claim in whichever of the available windows is longer. Courts do not permit parties to frame their claims strategically so as to avoid the expiration of the statute of limitations. Although this topic is often an add-on at best in many law school classes, it is worth highlighting that it is likely legal malpractice for lawyers not to know the statutes of limitations or indeed, to practice in a way that causes a client to lose the ability to pursue their claim due to missing the deadline imposed by statute.
The “clock” starts running, typically, from the time when the claim accrued, that is, from the first possible time when the plaintiff could file suit and obtain relief. In tort law, this is usually the date of tortiously caused injury. However, in some instances, a plaintiff’s injury predates their awareness of injury. For example, this could happen when the plaintiff is defamed without their initially being aware of it and later suffers professionally or personally, only then discovering the existence of an earlier defamatory statement that has caused harm. Similarly, a plaintiff may be exposed to some sort of harm or defective design that exerts harmful effects which take some time to become discernible or whose cause has not previously been traced to the tortfeasor. In cases such as these, where the injury is latent or unknown, the claim accrues from the date of discovery rather than injury. This extension of the start of the statute of limitations is known as the discovery rule and students will encounter it again in property law later in their first year.
The expiration of the statute of limitations is usually raised by the defendant as a defense to the lawsuit. However, the statute may be “tolled,” or paused, for minors or those incapable of bringing a claim for reasons of incompetence or disability. In some instances, parties may be estopped from using the expiration of the statute of limitations as a defense if they have engaged in behaviors like fraud or deceit that caused the plaintiff to delay bringing a lawsuit.
Statutes of limitation are generally considered to impose procedural limits. A claim will be dismissed as time-barred if it falls outside the statute of limitations by even a single day, regardless of the substantive merits of the claim. The central purpose of these statutes is to incentivize prompt action by the plaintiff; effectively, they start a legislative timer running. In that sense, these statutes are forward-looking. They begin at some date in time (injury or discovery) and then fix a particular period in time.
Statutes of Repose. By contrast, statutes of repose are typically considered to be substantive rather than procedural, and they are aimed less at incentivizing the plaintiff than protecting the defendant. Statutes of repose create an outer limit on the right to bring a civil action. This limit is not measured from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant. A statute of repose bars any suit that is brought after a specified time from the defendant’s last action. In torts, that could mean negligently designing or manufacturing a product, or continuing to sell copies of a book that contains defamatory language. The repose will bar a lawsuit even if the period ends before the plaintiff has discovered an injury. In fact, it will bar a lawsuit even if the plaintiff has not yet been injured and later sustains an injury. Effectively, a statute of repose creates a sharp break for the defendant, a fresh start or point at which they can be clear that they are no longer potentially liable in connection with some action or venture. Without such a statute, for instance, a contractor who builds a building could find themselves sued two or three decades after building it as the result of a latent defect’s becoming known.
Statutes of repose exist to protect against risks of infinite liability and to ensure some predictability for potential defendants. Such statutes are retrospective in the sense they look back to the last action by the defendant to measure potential claims’ validity. The interest in giving “repose” or peace of mind to the defendant is so strong that unlike statutes of limitations, statutes of repose are not usually tolled for equitable considerations (such as age or incompetence). Because they are somewhat more rigid and potentially harsher for plaintiffs, statutes of repose are less commonly used. They also tend to be longer. For instance, the statute of repose for construction-based claims tends to be ten years long. Statutes of repose can be a very helpful policy tool, however, in areas such as medical malpractice, products liability or construction in which industry or policy-makers fear the chilling effects of potentially endless liability.
Comparing the two types of statutes, their names are a helpful starting point. Statutes of limitation are aimed at limiting the plaintiff and statutes of repose are aimed at giving the defendant peace of mind, or providing the reassurance of “repose.” Sometimes the two operate together as in the following example.
Example: A Statute of Limitations and Repose
In Illinois, a statute of limitations mandates that an owner wishing to bring a lawsuit for a construction defect do so within four years of actual or constructive notice of the defect. 735 ILCS 5/13-214 (a). A statute of repose cuts off the period of potential discovery, however: “No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.” 735 ILCS 5/13-214 (b). This means that the owner has up to ten years from the date of substantial completion of the construction within which to discover the defect and another four years during which 214(a)’s limitation period runs, or effectively, up to fourteen years maximum from the defendant’s last actions.
There are four limits or exceptions imposed. If the builder voluntarily provides a longer warranty or engages in fraudulent misrepresentations, these limitations on the timeliness of available actions will be disregarded under express provisions set out at 214(d) and (e) respectively. In addition, the limitation and repose provisions are both tolled for disability or youth: “If a person otherwise entitled to bring an action could not have brought such action within the limitation periods herein solely because such person was under the age of 18 years, or a person with a developmental disability or a person with mental illness, then the limitation periods herein shall not begin to run until the person attains the age of 18 years, or the disability is removed.” 735 ILCS 5/13-214 (c).
Lastly, the legislature expressly excepted asbestos cases. Under 214(f), the statute of repose “does not apply to an action that is based on personal injury, disability, disease, or death resulting from the discharge into the environment of asbestos.” Asbestos use was common in construction and insulation and thus often implicated in construction injuries. It is now subject to several restrictions and partial bans given the conclusive evidence that it causes several kinds of cancer. Listing asbestos as an exception here creates the strong incentive for builders to take preventive measures in all matters related to asbestos. It also comports with Illinois legislation and regulation by the Illinois Environmental Protection Agency, which have issued specific rules about asbestos.
In conclusion, there are overlapping policy interests in the two forms of statutory limits and legislatures sometimes expressly connect them as the Illinois example above illustrates. In general, the two types of limits on causes of action in tort law can be distinguished and must be separately taken into account whenever they are both relevant.
Exam Tip: A statute of limitations governs the time within which a suit may be brought once a cause of action accrues (whether from injury or discovery). A statute of repose limits the time within which an action may be brought regardless of the accrual of a cause of action—this means a cause of action can be barred under a statute of repose even before it has accrued! Be sure to look for both kinds of limits!
Recall that statutes of limitation are procedural and forward-looking, aimed at the plaintiff; statutes of repose are substantive and retrospective, aimed primarily at the defendant. When issue-spotting, look at the plaintiff’s conduct to assess whether they’ve complied with the statute of limitations. If there is mention of a statute of repose, look at the date of defendant’s last known conduct to see whether the claim is barred.
(651 N.W.2d 40)
Diane Perkins contracted hepatitis C as a result of her employment at HEA of Iowa, a retirement facility in Clinton. An arbitrator awarded her workers’ compensation benefits, but the award was vacated by the acting industrial commissioner. On judicial review, the award was reinstated by the district court, which ruled that the commissioner’s findings, with respect to the application of our discovery rule, were not supported by substantial evidence. The employer appealed. The court of appeals, on a divided vote, affirmed. We granted the employer’s application for further review. We affirm the decision of the court of appeals and the judgment of the district court.
The industrial commissioner found the following facts. On October 2, 1990, a patient at HEA had a shunt in his leg used for attaching a dialysis catheter. The shunt was pulsating and leaking blood. The charge nurse directed Perkins to take the patient’s vital signs and to re-dress the shunt wound. Part of Perkins’ job was to listen for “bruits” (or unusual noises). As Perkins leaned over the patient’s leg to listen for bruits near the shunt, the leg ruptured. The entire room was sprayed with blood. Perkins had blood all over her body and in her mouth, eyes, and ears.
The patient was infected with hepatitis C, a fact not known to Perkins prior to the rupture. Perkins testified she did not even know what hepatitis C was at that time. A written report of the incident was made, and Perkins was informed by the director of nursing at HEA that, because the patient had hepatitis C, Perkins needed to be tested. A letter in evidence from HEA to its insurance carrier regarding this event described the protocol for testing for hepatitis C infection. The tests should be conducted shortly after possible exposure in order to determine whether the exposed person had been previously infected. Six months later a second test should be performed to determine if the disease had actually been contracted. A third test is recommended at one year after exposure. Perkins was tested on October 11, 1990, shortly after the event, and the test results were negative. The testing physician recommended that she be retested six months after her exposure. However, no other testing was done until late 1995 when Perkins had pneumonia or early 1996 when she was seen at the University of Iowa Hospitals and Clinics. Through these tests, Perkins was found to have abnormal liver function, but she was *43 not actually diagnosed with hepatitis C until April 1996.
Perkins filed a workers’ compensation claim in October 1996. HEA defended on the grounds that this was an occupational disease under Iowa Code chapter 85A (1995), and her claim was barred by the one-year statute of repose under section 85A.12. In the alternative, HEA claimed, if this was an “injury” under Iowa Code chapter 85, it was barred by the two-year statute of limitations of section 85.26(1). Perkins responded that this event did not result in an occupational disease under chapter 85A, and as to the statute of limitations under chapter 85, her injury had not been discovered until 1995 or 1996. Under our discovery rule, she claims, her application for benefits was timely.
Our review of an industrial commissioner’s decision is on error, not de novo. We, like the district court, are bound by factual findings made by the commissioner so long as those findings enjoy substantial support in the record made before the agency. [***] The industrial commissioner found that Perkins was put on “inquiry notice” at the time she was advised of the seriousness of hepatitis C exposure and the necessity of further testing. While the focus of the industrial commissioner and the reviewing courts has been on the application of the discovery doctrine, we must first focus on the employer’s claim that this was an occupational disease, not an industrial injury. If it was an occupational disease, Iowa Code section 85A.12 would indisputably defeat the claim because that section is a statute of repose, not a statute of limitation. Therefore, the discovery rule would be inapplicable to save the plaintiff’s case. [***] We therefore address the question of whether this was an occupational disease or an industrial injury.
III. The Occupational Disease Argument.
The statutory definition describes an occupational disease in terms of a worker’s “exposure” to conditions in the workplace. [***] The term “exposure” indicates a passive relationship between the worker and his work environment rather than an event or occurrence or series of occurrences, which constitute injury under the Workers’ Compensation Act. [c]
We have said:
[A]n “injury” is distinguished from a “disease” by virtue of the fact that an injury has its origin in a specific identifiable trauma or physical occurrence or, in the case of repetitive trauma, a series of such occurrences. A disease, on the other hand, originates from a source that is neither traumatic nor physical. [c]
It is significant in determining whether Perkins suffered an occupational disease, or an injury under workers’ compensation, that Perkins’ infection was linked to a sudden, specific incident of exposure.
The contraction of disease is deemed an injury by accident in most states if due to some unexpected or unusual event or *44 exposure. Thus, infectious disease may be held accidental if the germs gain entrance through a scratch or through unexpected or abnormal exposure to infection. 3 Larson’s Workmen’s Compensation Law § 51, at 51–1 (2002).
[***]
We agree with the industrial commissioner, the district court, and the court of appeals that this was an “injury” under the workers’ compensation provisions of Iowa Code chapter 85, not an “occupational disease” under chapter 85A. The issue still to be resolved is the application of the statute of limitations and the discovery rule.
Under Iowa Code section 85.26(1),
[a]n original proceeding for benefits under this chapter or chapter 85A … shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed….
This two-year statute of limitations is tempered by our “discovery” rule, which tolls the running of the statute until the injury is or should have been discovered. [c] The application of the discovery rule in personal injury and workers’ compensation cases has spawned considerable litigation in this court. The key issue has been: What did the claimant know concerning the elements of her claim, and when did she know it? The issue turns on whether Perkins was sufficiently on notice of an injury so as to have a duty to investigate further, under the reasonable-diligence standard, by arranging to be tested again after six months and one year from her exposure. This notice of the need to investigate has been referred to as “inquiry notice.” [c]
Knowledge is imputed to a claimant when he gains information sufficient to alert a reasonable person of the need to investigate. As of that date he is on inquiry notice of all facts that would have been disclosed by a reasonably diligent investigation. [c] The industrial commissioner found that the statute of limitations, Iowa Code § 85.26(1), barred Perkins’ claim because she was on inquiry notice of the key elements of her claim immediately upon her exposure to the patient’s blood.
[***] [T]he two-year limitation period begins to run when “the employee discover[s] or in the exercise of reasonable diligence should … discover [ ] the nature, seriousness and probable compensable character” of his injury or disease. [c] We have held that a claimant must have knowledge, either actual or implied, of all three characteristics of the injury before the statute begins to run. …
In Ranney the claimant was exposed to toxic paint solvents in his job from 1975 to 1981. In 1985 he was diagnosed with Hodgkin’s disease. Following his diagnosis, he inquired of several doctors about a possible connection between his exposure to the chemicals and his disease. In 1987 or 1988 his wife was a law student, and she discussed with Ranney the possibility of a connection between the exposure to chemicals and his health condition. [c] In 1991 Ranney asked a treating doctor about a connection, and the doctor confirmed a link between the job and his injury. Ranney filed his workers’ compensation case in 1991 and relied on the discovery rule to avoid the application of the statute of limitations.
We rejected Ranney’s claim that inquiry notice did not apply to his case because he suffered from a latent injury. We said:
When Ranney was diagnosed with Hodgkin’s disease in 1985, his condition was no longer latent; it was then known. At that point, Ranney was subject to the same duty to investigate as is any other plaintiff who knows he has sustained an injury. Id. at 154. We also rejected Ranney’s argument that he could not be charged with inquiry notice unless he was aware of the probable connection between his injury and his employment. We think that once a claimant knows or should know that his condition is possibly compensable, he has the duty to investigate. The purpose of the investigation is to ascertain whether the known condition is probably, as opposed to merely possibly, compensable. Ranney, 582 N.W.2d at 155 (citations omitted). [***]
In LeBeau v. Dimig, 446 N.W.2d 800 (Iowa 1989), the plaintiff was injured in an automobile accident on November 12, 1983. She made a claim for minor head injuries and was paid by the other driver, Dimig. In August 1985 LeBeau was diagnosed as having epilepsy. On July 31, 1987, she sued Dimig, claiming the epilepsy was caused by the 1983 accident. LeBeau, 446 N.W.2d at 801. The defendant raised the two-year statute of limitations under Iowa Code section 614.1(2). The plaintiff resisted a motion for summary judgment based on that defense by claiming she did not know, until 1985, that she had epilepsy. We said:
The issue raised in this appeal, however, is apparently one of first impression: When an accident occurs causing minor injuries and later more serious injuries appear, does the plaintiff’s cause of action “accrue” for statute of limitations purposes at the time of the first injury; at the time of the later manifestation of another injury; or are there two time periods, one commencing with the first injury and the other upon discovery of the second injury? Id. at 801–02. We characterized this as a “traumatic event/latent manifestation” case, or one in which the plaintiff has sustained both immediate and latent injuries caused by a noticeable, traumatic occurrence. At the time of the traumatic event, the plaintiff realizes both that he is injured and what is responsible for causing the injury. The full extent of the harm, however, has not become manifested. Id. at 802 [c].
Although we characterized LeBeau’s argument as “compelling,” we rejected it because her theory would allow splitting of a cause of action, resulting in the application of different statutes of limitation and inserting uncertainty into the resolution of such cases. [c] In LeBeau we held the plaintiff’s initial complaint of a minor injury and her collection of a relatively small settlement (\$200) evidenced sufficient awareness of her injury to subject her claim to the two-year statute of limitations. Id. at 803. This “seriousness” component of inquiry notice, [c], is not triggered by “every minor ache, pain, or symptom” as we have noted. [cc] Therefore, the failure to file a claim within two years of the occurrence of the injury may be excused if the claimant had no reason to believe the condition was serious. If the injury is trivial or minor, or the symptoms indicate no serious problem, the seriousness component is not met. [c]
The industrial commissioner in assessing the discovery issue stated:
Claimant knew shortly after the incident at the nursing home that she had been exposed to hepatitis C. She was tested, and informed of the seriousness of the disease or condition [which she did not yet have]. She was counseled to return for further testing in six to twelve months for a final determination regarding her status. She was fully informed of the need for the testing, and underwent the initial tests. Claimant did not *47 follow-up with the medical care providers to undergo the later testing. Claimant knew of the possibility that she contracted hepatitis C at the time she took the initial test, October 11, 1990. As of October 11, 1990, she had been informed that the patient had hepatitis C. Based on the evidence, it cannot be determined that claimant was unaware of the seriousness of her condition, and that the condition was work-related. Claimant failed to file her petition within two years after the date of the injury, which was October 2, 1990. As a result, she takes nothing from these proceedings. (Emphasis added.)
None of our cases, and none of those cited by the HEA or the industrial commissioner, have applied the rule of law announced in the commissioner’s ruling, i.e., that exposure to a disease triggers a duty to inquire further. In all of the Iowa cases discussed in this opinion, the claimant knew he or she was injured, not merely exposed to injury, before the duty to inquire arose. In some cases the claimant did not know how serious the injury was or whether it was work-related, but in all of the cases the claimant knew he or she had suffered an injury before the statute of limitations began to run.
The Oklahoma Supreme Court, in another hepatitis C case, reached the same conclusion:
Mere exposure to an infectious disease, no matter how threatening, is not enough to constitute a compensable event—it is not “accidental injury.” An on-the-job exposure must pass through the incubation period and develop into an infectious disease before it may be viewed as an accidental injury compensable by the employer. An employer’s apprehension of an employee’s exposure to a disease, even when followed by the act of administering prophylactic vaccination, cannot be translated into compensation liability for an “accidental personal injury.” [c]
If there is anything clear in this record with respect to the “condition” to which the commissioner referred, it is that as of the time Perkins is charged with inquiry notice she had not been injured. She had been exposed through a traumatic and frightening event, but she was not injured. If, as we have said, inquiry notice does not arise from “every minor ache, pain, or symptom,” [c], inquiry notice surely cannot be triggered when there is no ache, pain, or symptom of an injury. [***] Our workers’ compensation law does not provide a remedy for a person who has merely been exposed to injury.
We hold the date of injury was the date Perkins discovered she had hepatitis C, April 20, 1996, the date it was diagnosed. It did not commence from the date she was exposed to it. The industrial commissioner’s application of a contrary rule in this case is “affected by other error of law,” Iowa Code § 17A.19(8)(e), and must be reversed. We therefore affirm, although on different grounds, both the ruling of the court of appeals and the judgment of the district court.
Note 1. The court states that it affirms, “although on different grounds,” the lower court’s rulings. On what grounds does this court affirm and what are the grounds on which the lower courts ruled?
Note 2. What is the knowledge standard required under the discovery rule? What policy concerns do you suspect are likely to underlie this choice of standard?
Note 3. Why do you think the court refrains from finding that “exposure to a disease triggers a duty to inquire further”? When does this court suggest a “duty to investigate” may arise?
Note 4. Statutes of Limitation and Repose serve multiple important functions as you see in Perkins. However, they impose costs on certain stakeholders and the system overall, as well. What doctrines do you imagine might they complicate? What purposes might they frustrate? What solutions do you imagine courts could undertake to balance out or minimize the tensions among these competing purposes? Should legislatures be involved? | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/04%3A_Defenses_Privileges_Immunities_and_Limitations/4.03%3A_Statutes_of_Limitation_and_Repose.txt |
(6 N.Y. 397)
This is an action brought to recover damages from the defendant for negligently putting up, labeling and selling as and for the extract of dandelion, which is a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison. [***] The plaintiff Mary Ann Thomas, [***] being in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison county, where the plaintiffs reside.
A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects; such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind. She recovered however, after some time, from its effects, although for a short time her life was thought to be in great danger.
The medicine administered was belladonna, and not dandelion. The jar from which it was taken was labeled “1/2 lb. dandelion, prepared by A. Gilbert, No. 108, John-street, N. Y. Jar 8 oz.” [***]
[Defendant Winchester manufactured, purchased and sold “certain vegetable extracts for medicinal purposes.” He hired “A. Gilbert” as an assistant and they used Gilbert’s name on the labels because that increased sales. The mislabeled extract in Mrs. Thomas’ jar was manufactured by another manufacturer or dealer, not Winchester, sold to Aspinwall with Gilbert’s label on it, and then sold it Foord who, believing it was accurately labeled, sold it to Mrs. Thomas.]
The extract of dandelion and the extract of belladonna resemble each other in color, consistence, smell and taste; but may on careful examination be distinguished the one from the other by those who are well acquainted with these articles.
[***] The case depends on [***] whether the defendant, being a remote vendor of the medicine, and there being no privity or connection between him and the plaintiffs, the action can be maintained.
If, in labeling a poisonous drug with the name of a harmless medicine, for public market, no duty was violated by the defendant, excepting that which he owed to Aspinwall, his immediate vendee, in virtue of his contract of sale, this action cannot *408 be maintained. If A. build a wagon and sell it to B., who sells it to C., and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.’s obligation to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do with it. Misfortune to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder’s negligence; and such negligence is not an act imminently dangerous to human life.
So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith’s negligence in shoeing; the smith is not liable for the injury. The smith’s duty in such case grows exclusively out of his contract with the owner of the horse; it was a duty which the smith owed to him alone, and to no one else. And although the injury to the rider may have happened in consequence of the negligence of the smith, the latter was not bound, either by his contract or by any considerations of public policy or safety, to respond for his breach of duty to any one except the person he contracted with
But the case in hand stands on a different ground. The defendant *409 a dealer in poisonous drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label. Gilbert, the defendant’s agent, would have been punishable for manslaughter if Mrs. Thomas had died in consequence of taking the falsely labeled medicine. Every man who, by his culpable negligence, causes the death of another, although without intent to kill, is guilty of manslaughter. (2 R. S. 662, § 19.) [***] And this rule applies not only where the death of one is occasioned by the negligent act of another, but where it is caused by the negligent omission of a duty of that other. [c] Although the defendant Winchester may not be answerable criminally for the negligence of his agent, there can be no doubt of his liability in a civil action, in which the act of the agent is to be regarded as the act of the principal.
In respect to the wrongful and criminal character of the negligence complained of, this case differs widely from those put by the defendant’s counsel. No such imminent danger existed in those cases. In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury therefore was not likely to fall on him, or on his vendee who was also a dealer; but much more likely to be visited on a remote purchaser, as actually happened. The defendant’s negligence put human life in imminent danger. Can it be said that there was no duty on the part of the defendant, to avoid the creation of that danger by the exercise of greater caution? or that the exercise of that caution was a duty only to his immediate *410 vendee, whose life was not endangered? The defendant’s duty arose out of the nature of his business and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labeled into the market; and the defendant is justly responsible for the probable consequences of the act.
The duty of exercising caution in this respect did not arise out of the defendant’s contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison, mislabeled, into the hands of Aspinwall as an article of merchandise to be sold and afterwards used as the extract of dandelion, by some person then unknown. [***] The defendant’s contract of sale to Aspinwall does not excuse the wrong done to the plaintiffs. It was a part of the means by which the wrong was effected. The plaintiffs’ injury and their remedy would have stood on the same principle, if the defendant had given the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale on the faith of the label. [***]
The defendant, by affixing the label to the jar, represented its contents to be dandelion; and to have been “prepared” by his agent Gilbert. The word ‘prepared’ on the label, must be understood to mean that the article was manufactured by him, or that it had passed through some process under his hands, which would give him personal knowledge of its true name and quality.
[***] [T]he defendant cannot, in this case, set up as a defense, that Foord sold the contents of the jar as and for what the defendant represented it to be. The label conveyed the idea distinctly to Foord that the contents of the jar was the extract of dandelion; and that the defendant knew it to be such. So far as the defendant is concerned, Foord was under no obligation to test the truth of the representation. [***]
GARDINER, J. concurred in affirming the judgment, on the ground that selling the belladonna without a label indicating that it was a poison, was declared a misdemeanor by statute; (2 R. S. 694, § 23;) but expressed no opinion upon the question whether, independent of the statute, the defendant would have been liable to these plaintiffs.
*412 [***] Judgment affirmed.
Note 1. Why might the case previously have depended on the fact that Thomas bought the medicine from “a remote vendor”? Why does this court determine that it does not?
Note 2. How does the court distinguish precedents to the contrary offered by the defendant?
Note 3. How would you articulate the breach of due care and the scope of the duty defendant owed Mrs. Thomas? Might it have been reasonable to inquire whether Foord also had a duty, and if so, what the scope of that duty might have required?
Note 4. Is Winchester effectively being held strictly liable for Mrs. Thomas’ injuries even though the court refers to it as negligence? Why or why not?
Note 5. What was the significance of Gilbert’s having prepared and labeled the extract?
The Progressive-Era Rise of the First Consumer Protection Laws
Before the advent of contemporary products liability law, consumers often found that courts did not meaningfully enable them to recover in tort law from injuries suffered as a result of the actions of manufacturers, distributors and vendors of food, drugs and other products including automobiles. Consumer protection and products liability law are both a product of the 20th century, and their precursors were actions in tort law suing for injury or wrongful death. However, the plaintiff often faced hurdles that could prove insurmountable such as the requirement of a contract or privity to ground a duty, as well as difficulties asserting what happened and what fault, if any, had led to their injuries. The increasing complexity of manufacturing made injuries more frequent but also more remote and out of view from the consumer’s perspective. The increasing attenuation of the product supply chain also meant more intermediaries between the manufacturer (along with its sub-manufacturers, potentially) and the ultimate user of the product. These factors put increasing social and legal pressure on the legal system.
Around the turn of the century, the cause of consumer welfare gained national momentum, especially with respect to food manufacturing and service. Individual states had begun promulgating laws to safeguard the purity and safety of foods. Now the attention was trained on the federal level. The push for federal legislation came partly in connection with the efforts of the so-called “muckrakers.” These were journalists and writers dedicated to improving the lot of workers and the poor; ending child labor; and exposing corporate and governmental corruption. Progressive reformers had been lobbying for consumer protection legislation since the 1880s, and over 100 bills had been considered and rejected before one was finally adopted.
In 1905, a sensationalist and melodramatic piece of fiction was published which incorporated extensive research and reporting on the meat-packing industry. Upton Sinclair’s novel, The Jungle (1905) disseminated vivid accounts of shockingly bad conditions in meat processing and manufacturing plants. The novel has been credited with bringing the imminent legal transformation to its tipping point. (“[T]he nauseating condition[s] that Upton Sinclair captured in The Jungle was the final precipitating force behind both a meat inspection law and a comprehensive food and drug law.” Seehttps://www.fda.gov/about-fda/changes-science-law-and-regulatory-authorities/part-i-1906-food-and-drugs-act-and-its-enforcement). According to Dean Prosser in his seminal article on the collapse of privity as a restrictive requirement in tort law, The Jungle
was the best selling book of the year, was translated into seventeen languages, and by 1922 had sold 150,000 copies. Intended as a piece of propaganda for socialism, The Jungle succeeded in becoming instead a minor Uncle Toms Cabin of the war against bad food. The author said later that he had aimed at the public’s heart, and by accident hit it in the stomach.
William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1105–06 (1960)
Whatever its possible faults as a literary work, The Jungle was a hit, and it may have played a galvanizing role in what would become the revolution transforming tort law from within. Sinclair’s novel had depicted animals who were often sick or injured and being raised and slaughtered in a state of staggering filth. Workers in the novel were treated with about as much humanity as the animals; the meat packing industry was cast as ruthlessly exploitative of immigrants and other economically and legally vulnerable communities. During debates over the passage of potential food safety legislation, legislators heard horror stories of poisonous red dyes and other toxins being used casually throughout the food manufacturing industry. These stories built on Sinclair’s damning account and helped to catalyze momentous reform.
The following year, President Theodore Roosevelt signed the Pure Food and Drug Act of 1906 and the Meat Inspection Act into law. In so doing, Roosevelt ushered in a new era of federal consumer protection and regulatory oversight of medicines, food, and meat. Various protections against medical quackery and deceptive advertising accompanied more stringent rules to ensure that food would henceforth be unadulterated. The Pure Food and Drug Act also paved the way for the creation of the Food and Drug Administration (“FDA”) in 1930. From that time on, the FDA was the central source of regulation for substances ingested by humans (other than the Bureau of Alcohol, Tobacco, Firearms and Explosives, which was formed in 1972 and plays a rather different role).
In addition, Progressive-Era reforms led to the passage of the Federal Trade Commission Act in 1914, which created the eponymous independent agency charged with antitrust enforcement and consumer protection. Under the FTC Act,
[T]he Commission is empowered, among other things, to (a) prevent unfair methods of competition, and unfair or deceptive acts or practices in or affecting commerce; (b) seek monetary redress and other relief for conduct injurious to consumers; (c) prescribe trade regulation rules defining with specificity acts or practices that are unfair or deceptive, and establishing requirements designed to prevent such acts or practices; (d) conduct investigations relating to the organization, business, practices, and management of entities engaged in commerce; and (e) make reports and legislative recommendations to Congress.
15 U.S.C. §§ 41-58, as amended.
Federal Regulation and the Slow Changes in State Tort Law
In retrospect, Thomas v. Winchester (the poison mislabeling case, supra at the start of Module 5), can be seen as a harbinger of the Progressive Era’s profound changes to the legal landscape. Thomas’ focus on labeling hints at the core concerns that would drive the progressive reform agenda for legal change: concerns related to consumer deception and injury to both consumers and workers. Put another way, progressive legal reforms promoted transparency, truth, safety and health. In their commitments to an increasingly robust set of protections for consumers and workers, however, these legislative changes did not always provide a right of action for injured consumers. Privity was also still a bar in cases in which there was no contract creating a duty between the parties.
Prior to these progressive reforms, consumers had had little protection against spoiled foods or injurious conditions. When diners at restaurants were injured by some non-food foreign object in their food, they were typically unable to recover for their injuries through tort law. Food purveyors could essentially ask “well, why didn’t you look at your food more carefully?” In other words, caveat emptor (“buyer beware”) was the default rule. Privity was a formidable hurdle and courts regularly declined to find for plaintiffs for various technical reasons. In point of fact, this hapless state of affairs continued for some time even after the Pure Food and Drug Act’s passage in 1906.
For example, in Ash v. Childs Dining Hall Co., 231 Mass. 86, (Mass. 1918) the presence of a black tack in a slice of blueberry pie served at a restaurant was not in itself evidence of negligence on the part of the defendant who had prepared the pie. The court held that res ipsa loquitur could not be applied and that there could be no liability without evidence of negligent conduct by the defendant whose breach of duty had caused the tack’s presence in the pie. In Chysky v. Drake Bros. Co. (235 N.Y. 468, 1923), the plaintiff received a cake from her employer and suffered injuries from a nail contained in a slice of cake when she ate it. The court dismissed her claim due to lack of privity with the cake manufacturer since it was her employer who had purchased the cake. In Redmond v. Bordens Farm Products Co. (245 N.Y. 512, 1927), a court went the other way at first. The plaintiff, a fourteen month-old infant, had allegedly been injured by broken glass contained in a bottle of milk bought for her by her mother and distributed by the defendant. Glass passed into the infant’s mouth and caused injuries while she was drinking the milk. The case was submitted to the jury and the verdict for the plaintiff was unanimously affirmed by the Appellate Division of the Supreme Court in the First Judicial Department (218 App. Div. 722, 1926). However, on appeal to the Court of Appeals, the case was reversed with no more than the following per curiam opinion: “Judgments reversed, and new trial granted, costs to abide event, on authority of Chysky v. Drake Brothers Co., 235 N. Y. 468.” In other words, the lack of privity in Chysky so obviously controlled this decision that no further opinion was needed for reversal. If the fourteen month-old infant had bought her own milk and been injured drinking it, she could have recovered; that she was not a preternaturally precocious toddler able to do so appears to have been her legal case’s fatal flaw. It is worth pointing out that tort law’s omnipresent figure, Chief Justice Cardozo (as well as Justice Andrews, among others) concurred. Redmond v. Borden’s Farm Prod. Co., 245 N.Y. 512, 512, (1927).
Pure food legislation had improved the situation for consumers somewhat by creating a legal obligation on the part of manufacturers to safeguard their food products and to label them accurately. Recall tort law’s purposes. The legislation served as a deterrent since manufacturers and distributors had to answer to the U.S. government if they fell out of compliance with the increasing regulations imposed for food safety. Balanced with businesses’ profit motive, the new regulatory mandate created incentives to make safer food processing economically efficient. While these new laws protected consumers’ food sources, they did nothing directly to compensate victims of negligence when accidents occurred. A rule that permitted recovery based on the technicality of privity, however, seemed antithetical to basic notions of fairness and social justice.
In negligence cases, recovery was still extremely limited and cases reflect formalistic, almost absurdly technical reasoning. Where consumers had a contract of some kind, or were in privity, they were owed a duty, and thus if the product they used or consumed was defective, recovery in tort might be allowed. Alternatively, if the defendant had intentionally hidden some defect and consumers lacked the ability to inspect goods for themselves or could not have discovered defects with their own ordinary inspection, the defendant would likely be liable in tort law for injuries their conduct caused. However, the theory of liability was fraud, not negligence, and it required a different fact pattern with a higher showing of culpability. It helped to disincentivize fraudulent concealment (which constitutes its own tort at common law) but did little to help curb negligent conduct.
Although Thomas had dispensed with the privity requirement in cases of mislabeling poisons, it was only binding authority in New York. Even there, its holding seemed to limit the scope of its rule to errors made with respect to labeling or representing a poison or other product carrying a high risk of danger with its use. It was unclear how expansively subsequent courts would interpret it. Over time, other courts did build on Thomas, thus forging the beginnings of contemporary products liability law. See e.g. Schubert v. J. R. Clark Co. 49 Minn. 331 (1892) (applying Thomas to find a manufacturer liable with respect to a defective ladder); Devlin v. Smith (89 N.Y. 470 (1882) (applying Thomas to hold liable the builder of a 90-foot scaffold for painters after it collapsed, killing the painter because the scaffold, like the poison, was an inherently dangerous product); Torgesen v. Schultz, 192 N.Y. 156, 157–58, 84 N.E. 956 (1908) (applying Thomas to find a jury question where plaintiff lost an eye due to the explosion of a bottle of carbonated water filled and put upon the market by the defendant).
Many of the early cases in what now is considered modern products liability law arose at the boundaries of tort and contract through the ideas of privity and warranty. They also often featured fact patterns with asymmetrical information, such as when manufacturers or retailers possessed the ability to inspect or confirm that a product was defect-free while the consumer lacked such an ability. Many cases arose in the areas of food preparation and processing, including canning and bottling. Get ready to read a lot of cases about Coca-Cola bottles (and consider why that is). Finally, this discussion may seem like it’s revisiting ancient history not worth the time to delve into detail for the study of tort law in our era. However, the evolution of products liability law—its transformation at common law and through legislation, its expansion and subsequent contraction, its intense variation by state—provides an excellent case study in common law. Rather than finding it maddening that the rule varies so much by jurisdiction, consider the reasons for which different jurisdictions developed in particular ways. The origins of product liability law left longlasting footprints in the common law that are worth understanding as a means of contextualizing current laws and gaining the capacity to anticipate future developments. In our era of rapidly changing technological advances, there will always be new questions for jurists to consider. Studying the ways in which courts have clung to rules or dispensed with them and their rationales provides a toolkit as well as a roadmap.
Sometimes when reading older cases, there is a tendency to dismiss their fact patterns as remote in time and thus improbable or utterly different from the present moment. Be wary of this tendency; often the facts remain salient in some way even despite social and technological changes. Take the meatpacking industry as an example. Clearly, many things have changed in the industry due to the major legislation of the 20th century and expansion of the agency powers that regulate the relevant entities. Notwithstanding those changes, a recent exposé of the industry featured an author with no experience who applied for a job and received one less than five hours later.
https://www.theatlantic.com/magazine/archive/2021/07/meatpacking-plant-dodge-city/619011
The author of the article, Michael Holtz, reported conditions that ought to remain concerning in light of the classification of meatpacking workers as “essential” employees who continued working throughout the COVID-19 pandemic. Many were sickened and some died in consequence of outbreaks at meatpacking plants.
Consider whether you think tort law should play a role in governing questions of worker health and safety at meatpacking plants. Who should determine whether eating industrially processed meat is important enough to risk workers’ safety? Who suffers if such meat does not remain available?
Our next case is one of the earliest torts cases nationally to establish a broader duty on the part of the defendant for injury arising from food even in the absence of privity and without the facts to sustain a fraud case. It introduces an influential theory of “implied warranty” with a rationale reminiscent of Thomas’ legal reasoning. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/05%3A_Products_Liability_Law/5.01%3A_Developments_in_Tort_Law_and_Early_Products_Liability_Law.txt |
(75 Wash. 622)
*623 The complaint alleges that the plaintiffs were operating a profitable restaurant in the city of Seattle, and dealing with the general public as their patrons; that defendant Armour & Co. is engaged in the business of manufacturing and selling to the public generally meats and products to be used as food; that it maintains a place of business in Seattle, Wash., from which it sells and distributes its goods, representing and holding out to the general public that its goods are pure, wholesome, and fit food for human beings; that on June 16, 1912, plaintiffs, in the usual course and conduct of their business, purchased from the Seattle Grocery Company a carton of cooked tongue, prepared and ready to be used for food without further cooking or labor; that such package had been manufactured and prepared by defendant Armour & Co.; that the carton or container bore its name, and that it was purchased to be sold to plaintiffs’ customers; that in making such purchase plaintiffs relied upon the representations of Armour & Co. that said food was pure and wholesome and fit for food; that Armour & Co. were guilty of negligence in manufacturing and preparing the foods purchased, in that in the center of the carton was a foul, filthy, nauseating, and poisonous substance; that in the due course of trade plaintiffs served to one of their patrons a portion of the tongue; that the patron ate of it; that he then and there became sick and nauseated, and did then and there in the presence of other persons publicly expose and denounce the service to him of such foul and poisonous food; that the incident became known to the public generally; that plaintiffs had no knowledge or means of knowing the character of the food served; that its condition could not be discovered until it was served for use—all to the damage of the plaintiffs, etc., for loss of reputation, business, and lost profits during the life of their lease. Defendants demurred to the complaint. The demurrer of Armour & Co. was sustained, and plaintiffs have appealed.
*624 It has been accepted as a general rule that a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one upon an implied or express warranty, and that without privity of contract no suit can be maintained; that each purchaser must resort to his immediate vendor. To this rule certain exceptions have been recognized: (1) Where the thing causing the injury is of a noxious or dangerous kind. (2) Where the defendant has been guilty of fraud or deceit in passing off the article. (3) Where the defendant has been negligent in some respect with reference to the sale or construction of a thing not imminently dangerous.
Within one of these exceptions is to be found the reason for holding the manufacturer of patent or proprietary medicines to answer at the suit of the ultimate consumer. Direct actions are allowed in such cases because the manufacturer of medicines is generally shrouded in mystery, and sometimes, if not generally, they contain poisons which may produce injurious results. They are prepared by the manufacturer for sale and distribution to the general public, and one purchasing them has a right to rely upon the implied obligation of the manufacturer that he will not use ingredients which if taken in prescribed doses will bring harmful results. Reference may be had to the following cases which sustain, and in which many other cases are cited which sustain, this exception: Thomas v. Winchester, 6 N. Y. 397; Blood Balm Co. v. Cooper, 83 Ga. 457; Weiser v. Holzman, 33 Wash. 87.
Another exception—the doctrine is comparatively recent—is referable [sic] to the modern method of preparing food for use by the consumer, and the more general and ever-increasing use of prepared food products. The following are among the more recent cases holding that the ultimate consumer may bring his action direct against the manufacturer: *625 [***] The contrary is held in the case of Nelson v. Armour, 76 Ark. 352. This case, though well reasoned along the lines of those causes which hold that the rule of caveat emptor applies, is not in touch with the modern drift of authority. Some of the cases hold that the action is for breach of warranty; others that it is to be sustained upon the ground of negligence. A few courts have attributed the growth of this exception to the general public policy as declared in the pure food laws [c], while others say that the liability for furnishing provisions which endanger human life rests upon the same grounds as the manufacturing of patent or proprietary medicine. [cc].
In the case of Weiser v. Holzman, this court said: ‘The rule does not rest upon any principle of contract, or contractual relation existing between the person delivering the article and the person injured, for there is no contract or contractual relation between them. It rests on the principle that the original act of delivering the article is wrongful, and that everyone is responsible for the natural consequences of his wrongful acts.’ Although the cases differ in their reasoning, all agree that there is a liability in such cases irrespective of any privity of contract in the sense of immediate contract between the *626 parties.
Indeed, we understand that respondent does not claim that the ultimate consumer, the person who ate the unfit food, would be denied a right of recovery under modern authority; but it is strenuously contended that such actions are sustained because the consumer has been injured in health and comfort, that the exception should not be carried to the extent of allowing a retailer of the goods to sue direct and recover for injury to his business and loss of reputation, that in such cases there must still be privity of contract. It seems that the test should not rest in finding the plaintiff’s damage in health or business, but in answering the question whether there has been a damage which may be justly attributed to the negligence or a breach of duty on the part of the one who had power and whose duty it was to prevent the wrong.
Counsel on either side have been zealous in searching the books, but only one case is submitted that goes directly to the right of the retailer or middleman to sue in the first instance—Neiman v. Channellene Oil & Mfg. Co., 112 Minn. 13. The right to recover for loss of trade consequent upon the selling of impure food was sustained; the court saying, ‘A company which advertises itself as a manufacturer and seller of pure articles of food must be deemed to have knowledge of the contents of the articles offered for sale.’ The court held to the doctrine of implied warranty. The suit was brought by the retailer against his immediate vendor, so that we still have to meet the question of whether the retailer who has lost his trade can sue over the head of his immediate vendor, or join him with the manufacturer as in this case. In the light of modern conditions we see no reason why he should not. He has been damaged. He and all others who in the course of trade handled the unwholesome goods purchased them relying upon the name and reputation of the manufacturer. The goods were designed for ultimate consumption by an individual patron, and packed to facilitate *627 and make convenient such resales as might be made pending ultimate consumption.
Every tradesman, whether wholesaler or retailer, is in a sense a consumer, for he buys to resell. In a way he risks his reputation. He stakes it upon either an express warranty, as printed on the package, or an implied warranty that the goods are wholesome and fit for food. He is injured by the fault or a breach of duty of the manufacturer, for his immediate vendor, like himself, has no way to test every sealed package. ‘Remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales.’ The obligation of the manufacturer should not be based alone on privity of contract. It should rest, as was once said, upon ‘the demands of social justice.’ Ketterer v. Armour, supra.
We may judicially recognize that the contents are sealed up, not open to the inspection or test, either of the retailer or of the customer, until they are opened for use, and not then susceptible to practical test, except the test of eating. When the manufacturer puts the goods upon the market in this form for sale and consumption, he, in effect, represents to each purchaser that the contents of the can are suited to the purpose for which it is sold, the same as if an express representation to that effect were imprinted upon a label. Under these circumstances, the fundamental condition upon which the common law doctrine of caveat emptor is based—that the buyer should ‘look out for himself’—is conspicuously absent. Tomlinson v. Armour, supra, 75 N. J. Law, 748.
In Pantaze v. West (Ala. App.) 61 South. 42, the suit was brought against the retailer. In discussing the obligations of the retailer, the court treats him as a consumer within the law, saying: ‘The fact was established without controversy that the defendant was the keeper of a public eating place, engaged in the business of serving food to his customers, the public, and, being thus engaged, and holding himself out as a public purveyor, he was bound to use due care to see that the foodstuffs served at his place of business to his customers were fit for human consumption, and could be partaken of without *628 causing sickness or endangering human life or health because of their unwholesome and deleterious condition, and, for any negligence in this particular in failing to observe this duty which proximately resulted in injury to one of the patrons of the place, the defendant would be responsible.’
Now, under all authority the immediate vendor would be liable upon one theory or another to the consumer. This being so, it should not be held that the vendor could not sue the manufacturer except to recoup against a judgment. He might thus be left without remedy. In denying the right to sue an immediate vendor, Spear, J., in Bigelow v. Maine Central Ry. Co., 110 Me. 105, observed the wonderful discoveries of the past century and the amazing progress in perfecting known devices. He recalls the boast of the common law that it was able to adjust itself to the inevitable vicissitudes and changes that occur in the development of human affairs.
The principles of the common law have adapted themselves so aptly as to render almost imperceptible the radical transitions that have taken place. Of little less importance than the appearance of the great achievements referred to is the establishment and development of the canning industry in this country and in other parts of the world. It may be said that the art of canning, if not invented within the last century, has, at least, assumed the vast proportions which it has now attained within a comparatively few years. It involves a unique and peculiar method of distributing for domestic and foreign use almost every product known to the art of husbandry. The wholesaler, the retailer, and the user of these goods, whether in the capacity of caterer, seller, or host, sustain an entirely different duty, respecting a knowledge of their contents and quality, than prevails with regard to knowing the quality of those food products which are open to the inspection of the seller or victualer. With reference to these it may well be considered, as has been held, that, having an opportunity to investigate and thereby to know the quality of their merchandise, they are charged with a responsibility amounting to a practical guaranty. The early rules of law were formulated upon the theory that *629 the provision dealer and the victualer, having an opportunity to observe and inspect the appearance and quality of the food products they offered to the public, were accordingly charged with knowledge of their imperfections. [cc] But, upon the state of facts in the case at bar, a situation arises that cannot in the practical conduct of the canning business fall within these rules. No knowledge of the original or present contents of a perfect appearing can is possible in the practical use of canned products. They cannot be chemically analyzed every time they are used. Accordingly, the reason for the rule having ceased, a new rule should be applied to the sale and use of canned goods that will more nearly harmonize with what is rational and just.
To the old rule that a manufacturer is not liable to third persons who have no contractual relations with him for negligence in the manufacture of an article should be added another exception, not one arbitrarily worked by the courts, but arising, as did the three to which we have heretofore alluded, from the changing conditions of society. An exception to a rule will be declared by courts when the case is not an isolated instance, but general in its character, and the existing rule does not square with justice. Under such circumstances a court will, if free from the restraint of some statute, declare a rule that will meet the full intendment of the law. No case has been cited that is squarely in point with the instant case; but there is enough in the adjudged cases to warrant us in our conclusion.
The facts stated in the complaint are admitted by demurrer. Plaintiffs have been injured. No other person or firm had an opportunity to check the offensive package after it was sealed and sent on its way. Right and reason demand that any party injured should have a right of recovery against the first offender without resorting to that circumlocution of action against intervening agents (a doubtful right at best, Bigelow v. Maine Central, supra), which is demanded where the product as well as the market *630 is open, and the rule of caveat emptor should in justice apply.
Plaintiffs’ argument is also based on the pure food law. It is contended that the negligence of defendant is presumed if a violation of the pure food law be shown. This is admitted as a general proposition by defendant; but it says that the rule applies only where the statute was intended for the benefit of the party who brings the suit; that the pure food laws are intended for the benefit of the consumer alone. [***] The consumer purchases prepared food products to sustain life and health. The retailer purchases the same products, depending upon established brands to sustain his reputation as a dealer in clean and wholesome food. We would be disposed to hold on this question that, where sealed packages are put out, and it is made to appear that the fault, if any, is that of the manufacturer, the product was intended for the use of all those who handle it in trade as well as those who consume it. Our holding is that, in the absence of an express warranty of quality, a manufacturer of food products under modern conditions impliedly warrants his goods when dispensed in original packages, and that such warranty is available to all who may be damaged by reason of their use in the legitimate channels of trade.
We regard this case, in so far as the dealer is permitted to sue the manufacturer, as one of first impression. We think the complaint states a cause of action. If there is no authority for the remedy, ‘it is high time for such an authority.’ Ketterer v. Armour, supra.
The judgment is reversed, and the cause remanded, with instructions to overrule the demurrer.
Note 1. Exceptions to the Requirement of Privity. The court states that the rule at common law up until that point has been that “a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one upon an implied or express warranty, and that without privity of contract no suit can be maintained.” It identifies three existing exceptions: (1) Where the thing causing the injury is of a noxious or dangerous kind. (2) Where the defendant has been guilty of fraud or deceit in passing off the article. (3) Where the defendant has been negligent in some respect with reference to the sale or construction of a thing not imminently dangerous.
The first category often involved cases of mislabeling poisons or mistakes by chemists or others handling substances that had the power to injure or kill (as you saw in Thomas v. Winchester, supra). The second clearly marks off any actors seeking to dupe others and eliminates the privity requirement for bringing actions against them; this is the action for fraud, however, not negligence. The third allows a negligence action in cases in which an actor makes or sells something not imminently dangerous (but inherently dangerous, or likely to become injurious when negligently made). This third category was not widely accepted across the nation (as you will see in MacPherson v. Buick, infra) but it had begun to be tested in various courts and still required a showing of negligence. Mazetti adds a fourth exception, explaining that tort law must evolve in the face of “the changing conditions of society”:
[I]n the absence of an express warranty of quality, a manufacturer of food products under modern conditions impliedly warrants his goods when dispensed in original packages, and that such warranty is available to all who may be damaged by reason of their use in the legitimate channels of trade.
Can you restate the Mazetti rule, above, to identify who may, and who may not use it to recover if injured by a food product? What culpability standard appears to apply?
Note 2. Which of tort law’s purposes seems (or seem) to be driving the court’s reasoning? Where in the opinion do you see language in support of your conclusion?
Note 3. Review of Negligence Per Ses Requirements and Limits. The majority refers to the pure food laws and, implicitly, to a theory of negligence per se based on a statutory violation. However, the various statutes appear to be limited to the consumer’s benefit, and the negligence per se doctrine, in defendant’s argument, pertains to the party bringing suit. In this case, the party bringing suit was not the consumer but a vendor. Thinking back to negligence per se, can you recall why this would matter? How do you explain the court’s working around this limitation?
Note 4. What does the court mean when it writes: “Every tradesman, whether wholesaler or retailer, is in a sense a consumer, for he buys to resell. In a way he risks his reputation”? Does the court seem to be pointing to a regime of strict liability or negligence? Why might one regime or another be normatively desirable here?
(145 Miss. 876)
The Coca–Cola Bottling Works appeals from a judgment for \$2,500 recovered by the appellee, Mrs. Fred Lyons, as damages for personal injuries received by her on account of drinking a portion of a bottle of Coca–Cola which contained a quantity of broken glass.
We shall state only such of the facts as are necessary to an understanding of the decision of the case. The appellee, Mrs. Lyons, in company with her friend, Mrs. Jackson, drove in an automobile, to the Belen Drug Store, at Belen, in front of which they parked, and ordered drinks to be brought to them. The exact testimony on this particular point is that, “We drove up in front of the drug store, and ordered cokes.” A clerk in the drug store brought two bottles of Coca–Cola to the ladies, which they proceeded to drink, and Mrs. Lyons swallowed a quantity of broken glass which was in the bottle of Coca–Cola she drank from. The bottle of Coca–Cola in question in this case had been manufactured, bottled, sealed, and delivered to the drug store to be sold to the public in the retail trade. The bottle was unsealed, or we may say uncapped, by the clerk in the drug store just before he delivered it to Mrs. Lyons. The above–stated testimony in the record is undisputed.
When the two ladies drove up and stopped in front of the drug store, Mrs. Jackson was the one who ordered the drinks, and she also paid for them; but the drinks were ordered for both of the ladies, and a bottle was delivered to each of them.
Mrs. Lyons suffered severe internal injuries on account of swallowing the broken glass in the Coca–Cola, and she testified that she suffered for many months from the effects of the glass in her stomach. There was about a tablespoonful of the broken glass in the bottle.
The recovery is based solely upon the theory that the Coca–Cola company was liable upon an implied warranty that the bottled drink was pure and wholesome, and that the fact that there was glass in the bottle when it was sealed and put upon the market for the public created liability for the injury to the one who drank it, regardless of whether the manufacturer was guilty of negligence or not. This rule is established in this state by the cases of Coca–Cola Bottling Co. v. Chapman, 106 Miss. 864; Rainwater v. Coca–Cola Co. 131 Miss. 315; and Grapico Bottling Works v. Ennis, 140 Miss. 502.
This being a case, then, grounded upon the theory of the breach of an implied warranty, we may discard any question arising in the record with reference to the right to recover on account of the negligence of the bottler, and proceed to ascertain whether or not recovery upon the other theory, that is, the breach of an implied warranty, can be maintained in the case. In such a case as the one before us three things only are to be ascertained, namely:
(1) Was the glass in the bottle when it left the factory and was offered to the public?
(2) Did the consumer have title and rightful possession of the bottle?
(3) Did the consumer receive injury from drinking the Coca–Cola with the glass in it?
The main point presented for reversal of the judgment is that, since the right of recovery depends upon the breach of an implied warranty on the part of the manufacturer that the bottled goods were pure and wholesome, there can be no recovery in the case because there was no implied warranty of the purity of the drink for the reason that there was no contractual relation between the injured party, Mrs. Lyons, and the Coca–Cola company, or the retailer, Belen Drug Company.
It is contended that Mrs. Lyons had no contract with the clerk at the drug store who sold and delivered the Coca–Cola, for the reason that Mrs. Jackson, the lady friend with *307 her, ordered and paid for the drinks for both of them. It is urged that, therefore, there was no contractual relation between Mrs. Lyons and the manufacturer of the Coca–Cola; that the bottle of Coca–Cola was not purchased by Mrs. Lyons, but was given to her by Mrs. Jackson; that, consequently, Mrs. Lyons cannot recover upon the theory of a breach of warranty; and that since she has made no effort to recover upon the theory of negligence the case must fail.
We have carefully considered the question, and it appears to be a new proposition in this state, so far as we are able to discover, and we are of opinion that the position of appellant is not maintainable, because, as we see it, the bottle of Coca–Cola which Mrs. Lyons drank was at least a gift to her by her friend, Mrs. Jackson, and since the gift carried with it the title, and the implied warranty runs with the title, Mrs. Lyons was the owner, and rightfully in possession thereof as one of the public when she drank the Coca–Cola, and that the manufacturer impliedly warranted the purity of the drink to such of the public as became the rightful possessor and owner of the Coca–Cola. Therefore, if the drink was injurious by reason of having glass in it, the bottling company was liable to the consumer.
There is another theory which might be offered to sustain our view just expressed, and that is that the purchase of the two bottles of Coca–Cola by Mrs. Lyons and Mrs. Jackson was a joint purchase; that is, that the sale by the drug clerk was to both of these ladies, regardless of which one ordered or paid for the drinks, the idea being that it would make no difference which one of the parties ordered the drinks, they were sold to both of the ladies, and it would not be material which one paid for them, because the contract of sale had already been made between the seller and the two purchasers, and the payment for the drinks was merely the settlement of the obligation or debt incurred by both. However, we feel that it would be better to rely upon our first view than upon the latter, because it seems that the first one is the soundest.
Complaint is made by the appellant that a certain instruction granted the appellee presented an erroneous theory to the jury, in that it told the jury that–
“If the defendant manufactured or bottled and placed upon the market the bottle of beverage called ‘Coca–Cola’ in question in this case, for human consumption, and that the plaintiff, Mrs. Lyons, purchased the said bottle of beverage in due course of trade, *** and that the said bottle of Coca–Cola so purchased contained a quantity of small particles or pieces of glass therein, *** and plaintiff was thereby damaged, it is your duty to return a verdict for the plaintiff.”
The evil claimed to exist in this instruction is that it told the jury they should find for the plaintiff if the defendant manufactured and placed on the market the bottle of beverage in question, regardless of whether the glass got into the bottle after it left the factory, or regardless of whether the method of bottling employed by the manufacturer was such that the glass could not have gotten into the bottle until after it left the manufacturer.
We do not think the instruction was erroneous because it referred to the bottle of Coca–Cola in question, and, as the testimony was undisputed that this bottle came from the manufacturer sealed, the glass must have been in the bottle before it left the factory. There is no conflict in the evidence on this point. Consequently the only thing left to the jury to decide was whether or not there was in fact glass in the bottle of Coca–Cola which Mrs. Lyons drank; and as the undisputed testimony shows that the glass was in the bottle of Coca–Cola which she drank, and that it damaged her, the instruction was correct, even though it may be considered equivalent to a peremptory instruction to find for the plaintiff. If the suit had been predicated on the theory of negligence instead of the theory of implied warranty, then our conclusion as to its correctness would be otherwise.
In the Chapman Case, supra, the court said:
“There is evidence for appellant that its system for cleansing and filling bottles is complete, and that there is watchfulness to prevent the introduction of foreign substances. Nevertheless, the little creature [mouse] was in the bottle.”
So, if the broken glass was in the bottle when it left the factory, the manufacturer is liable for the damage done the consumer, even though the method of bottling was complete and perfect.
But the appellant contends that, when the manufacturer shows that the method of bottling is so efficient and perfect that a foreign substance cannot get into a bottle, then a question of fact arises for the determination of the jury as to whether or not the foreign substance got into the bottle after it left the factory, and that the court in the case before us erred in not permitting the appellant to submit that question to the jury.
The point is interesting, but we do not decide now whether such proof on the part of the manufacturer as to the perfect and efficient method of bottling would raise a question of fact as to whether or not the foreign substance got into the bottle before or after it was sealed and placed upon the market, because the record in this case does not show any such perfect and complete method of bottling as would be sufficient to raise the question as contended for by the appellant; and this being true, we decline to decide it at this time. The Chapman Case, supra, seems to be different in this regard.
*308 This record shows that there were inspectors to inspect the bottles of Coca–Cola after they were sealed and before they left the plant to see that they contained no foreign substance. The Coca–Cola company failed to put these inspectors on the witness stand to show an inspection. The persons said to be employed to inspect were not experienced or competent, so far as the evidence shows.
The testimony offered, but refused by the court, to show the sanitary condition of the bottling plant, was properly refused, because the sanitary condition might have been all right and yet the method of bottling improper or defective to the extent of permitting foreign substances to get into the bottles of Coca–Cola before they were sealed and sent out for the use of the public.
We are not prepared to say that, if the Coca–Cola company had shown that the method of bottling was perfect, and that it was impossible for the foreign substance to get into the bottle while it was being filled and sealed, then the question of fact for the decision of the jury—whether the foreign substance got into the bottle after it left the factory—would not thus be raised; but, as we have said, the point is not presented by the record, because a perfect method of bottling was not there shown, for the reason mentioned. [***]
Counsel for appellant contend that the verdict of \$2,500 is excessive. We have reviewed the testimony on this phase of the case, and while the testimony of the plaintiff may have the marks of exaggeration or honest but unnecessary fear in it, yet it was positive, and the jury had the right to believe it. And if what the plaintiff testified to with regard to the extent of her injuries and suffering for nearly a year on account of the glass being in her stomach is true, we do not think \$2,500 is an excessive amount to be allowed for the injury. It is true that probably she ought to have offered more expert medical testimony as to the extent of her injuries than she did; however, there are some injuries and internal troubles that the injured party is fully competent to testify about. In fact, the injured person here knows more about the pain she suffered from the character of injury involved than the attending physician could possibly know. The doctor, in such a case, generally knows only what the patient tells him, and he testifies as to the condition of the patient from what she has told him, and possibly some other slight corroborative symptoms.
The jury thought that \$2,500 was a reasonable amount for the injuries received in this case and we see no good reason for disturbing the verdict.
The judgment of the lower court is affirmed.
Note 1. Formalist versus Functionalist Legal Reasoning. The court announces that it is grounding the case in a theory of breach of implied warranty rather than negligence. It states that implied warranty will require three elements: 1) the glass must have been in the bottle when it left the factory and was offered to the public; 2) the consumer must have had title and rightful possession of the bottle; and 3) the consumer must have suffered injury from drinking the soda which contained glass. Unlike negligence, the claim for implied warranty does not require fault by the defendant. In that sense, it resembles strict liability. The court attempts to limit the scope of the tort action by insisting on a tight causal nexus (ensuring that the glass was in the bottle when it left the factory suggests nobody else could have been responsible); it then also points to the requirement of “title or rightful possession.” This provision seeks to limit the possible scope of liability by insisting on privity or a “contractual relation between the injured party” and either the manufacturer or the retailer. However, the court treats the privity requirement here as a formal technicality. It considers two means of surmounting the factual challenge present on these facts, namely that the injured party did not buy the bottle herself.
What are the two theories it considers, which does it settle on, and why? In its reasoning, it can be seen as disregarding a formalist theory that would insist on technically mapping the facts onto privity, even if the theory strained the concepts to do so. Instead, it opts for a functionalist theory that seeks to make the injured party whole and better captures the behavior and intentions of the party as well as aligning better with the purposes of the law.
Note 2. What was the defendant alleging had been erroneous about the way the jury was instructed? The court rejected this argument and agreed that it was proper to exclude the evidence defendant proffered to show the sanitary condition of the bottling plant. Can you summarize the court’s reasoning? What did it leave room for in future cases?
Note 3. Many early products liability cases were oriented in theories drawn from contract law, such as theories of warranty (express or implied) or from the law of sales. Based on what you have learned about express waivers of liability (in Module 4, in connection with Assumptions of the Risk), what do you imagine might be the costs, benefits, and limits of an approach to consumer protection that is grounded in contracts, versus torts? What theories does the court entertain in Coca-Cola Bottling Works to circumvent the formal bar to recovery that would be imposed if the lack of privity here were dispositive?
Note 4. The court’s discussion of damages reveals the sense of uncertainty that often attached to damages awards based on medical evidence or testimony. Because there were fewer available and fewer sophisticated methods of tracking and verifying patient’s symptoms, courts often had to make determinations based on witness credibility (and, as in cases like this, the view that the doctor could verify, at least, that the plaintiff had been complaining of these symptoms during the time period she claimed before the court). These evidentiary difficulties, and the accompanying judicial suspicions, may help you understand the limits on allowing recovery for emotional distress, as well as their partial erosion over time as medical and psychiatric science advanced.
Note 5. The court refers to a case (Coca-Cola Bottling Co. v. Chapman) in which a mouse was discovered in a soda bottle. A famous case in the United Kingdom, Donoghue v. Stevenson, featured digestive injuries and shock when a Scottish woman discovered a decomposing snail in her ginger beer after she had already consumed most of the contents of the bottle. She brought a now-infamous lawsuit after suffering from the physical and emotional stress of the experience. The litigation was ultimately successful for the plaintiff and reshaped the British law of consumer protection by allowing a consumer to recover for injuries suffered due to a defective product even when it was not inherently dangerous and even when her friend had purchased it (which would ordinarily cause the plaintiff to fail to meet the privity requirement). While she triumphed in court, Ms. Donoghue endured public critique and character assassination for bringing the lawsuit (and it was even suggested that her “friend” was an extramarital lover). Many accounts tell the story of the lawsuit and provide details that help frame the issue:
Donoghue spied the decomposing gastropod, mixed with bits of ice cream, bobbing in a glass of ginger beer…. The sight of it would continue to haunt the Scottish woman for years to come. …Three days after finding bits of dead mollusk in her drink, Donoghue visited a doctor for sharp pains shooting in her stomach. Three weeks later, she was hospitalized at the Glasgow Royal Infirmary with severe gastroenteritis and shock. Donoghue’s next steps — seeking out a lawyer and filing a claim against both Minghella and David Stevenson, the owner of the company that made the ginger beer — were not exactly typical for people of her background. Lawyers were for wealthy people. Donoghue, the daughter of a steelworker, was the second youngest of six and worked as a shop assistant. [S]he found the snail on August 26, 1928 — long before high-profile personal-injury lawsuits against companies like McDonald’s and Ford were the norm rather than the exception. Personal-injury laws only applied to the person who had purchased the defective product, and it was Donoghue’s friend, not her, who had paid for the ginger beer. The only exceptions were if the product was inherently dangerous or if the producer had misled the customer into thinking it was safe while knowing that it wasn’t. In either case, the ginger beer did not qualify. [A] solicitor, Walter Leechman, … agreed to represent Donoghue pro bono. After nearly a year of preparing documents and going through legal books, Leechman and Donoghue filed a lawsuit asking for £500 in damages and £50 in court fees. The sum, worth approximately £35,000 (\$45,000) in today’s money, was considered extravagantly large. As with many personal-injury cases today, the matter became about much more than the incident itself — and it came at great personal cost to Donoghue.
If you’re curious to read (or listen to) more, you’ll find it here https://narratively.com/the-woman-who-found-a-snail-in-her-soda-and-launched-a-million-lawsuits/
Note 6. Should it matter what is found in the cola bottle so long as it isn’t Coke? Should worse things give rise to higher damages? Or lower requirements of proof of negligence? Should it be material if the item is particularly objectionable, such as an “unpackaged prophylactic” (i.e. a used condom)? Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 121–22 (Me. 1970), overruled on other grounds by Culbert v. Sampsons Supermarkets Inc., 444 A.2d 433 (Me. 1982) (upholding a jury verdict for plaintiff when “defendant negligently caused or permitted a foreign object to enter a bottle of Coca-Cola it had processed. The foreign object was of such a loathsome nature it was reasonably foreseeable its presence would cause nausea and mental distress upon being discovered in the place it was by a consumer who was in the process of drinking from the bottle. The mental distress was manifested by vomiting.”)
The next case became the foundational case in the United States for the idea that privity would no longer be necessary for recovery under tort law, at least in cases where injury was caused by an inherently dangerous product.
(217 N.Y. 382) Justice Cardozo
The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car it suddenly collapsed. He was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. [***]The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser.
[The court here reviews earlier cases that diverge. Some cases had held that the manufacturer owed a duty to ultimate purchasers when the product was “inherently dangerous.” Other cases narrowed this rule so that the inherently dangerous classification would be limited to guns, poisons or other products intended or likely to injure or destroy. A third set proposed a rule that imposed liability for products that became injurious when negligently made; Cardozo followed this third line.]
If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case.
There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow.
We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law. [***]
In this view of the defendant’s liability there is nothing inconsistent with the theory of liability on which the case was tried. It is true that the court told the jury that “an automobile is not an inherently dangerous vehicle.” The meaning, however, is that danger is not to be expected when the vehicle is well constructed. The court left it to the jury to say whether the defendant ought to have foreseen that the car, if negligently constructed, would become “imminently dangerous.” Subtle distinctions are drawn by the defendant between things inherently dangerous and things imminently dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying forms that thought was put before the jury. We do not say that the court would not have been justified in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of which the defendant can complain.
We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was responsible for the finished product. It was not at liberty to put the finished product without subjecting the component parts to ordinary and simple tests [c]. Under the charge of the trial judge nothing more was required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger the greater the need of caution. [***]
The judgment should be affirmed with costs.
Note 1. Privity. Identify the rationales for the original doctrine. How and why does Cardozo choose to limit privity? How does his opinion seem to serve the various purposes of tort law? Does it strike you as being at odds with his ruling in Palsgraf?
Note 2. Contrary views. A vigorous dissent in MacPherson by Justice Bartlett began by reciting the traditional rule of privity: “[A] contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article.” (2 Cooley on Torts [3d ed.], 1486.) MacPherson v. Buick Motor Co., 217 N.Y. 382, 397, 111 N.E. 1050 (1916). He noted the exceptions to the rule, which in his opinion, failed to apply here: “The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already been pointed out, the learned trial judge instructed the jury that an automobile is not an inherently dangerous vehicle.” Id. He forcefully rejected the idea that privity could be dispensed with here, short of overruling venerable precedents from England as well as New York.
I do not see how we can uphold the judgment in the *400 present case without overruling what has been so often said by this court and other courts of like authority in reference to the absence of any liability for negligence on the part of the original vendor of an ordinary carriage to any one except his immediate vendee. The absence of such liability was the very point actually decided in the English case of Winterbottom v. Wright, and the illustration quoted from the opinion of Chief Judge RUGGLES in Thomas v. Winchester assumes that the law on the subject was so plain that the statement would be accepted almost as a matter of course. In the case at bar the defective wheel on an automobile moving only eight miles an hour was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed; and yet unless the courts have been all wrong on this question up to the present time there would be no liability to strangers to the original sale in the case of the horse-drawn carriage. Id. at 399–400.
Justice Bartlett’s concerns can be captured concisely in his citation to an early English case, Winterbottom v. Wright, quoting from Lord Abinger: “Unless we confine the operation of such contracts as this to the parties who enter into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.” Id. at 396-397.
Are these concerns overblown? Why or why not?
Note 3. Scope. Can you tell from this opinion how far the court wishes to extend the possible field of liability for products bearing extra risks or defects that the customer will not have an opportunity to inspect?
Note 4. The Pace and Nature of Common Law Change.MacPherson is often cast as the case that toppled the “citadel” of privity, or the longstanding limitations it represented. See William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 799 (1966). Yet the holding of the case was often limited in ways that continued, effectively, to serve as barriers to recovery. Consider again, Redmond v. Borden’s Farm Products Co. (245 N.Y. 512, 1927), mentioned as a note case supra under “Federal Regulation and the Slow Changes in State Tort Law”). Redmond held that a fourteen-month-old infant who lacked privity with a dairy farm could not recover for injuries sustained while she was drinking milk out of a glass bottle purchased by her parent). If MacPherson truly “toppled” the citadel of privity, how could a case decided almost a decade later still find that privity barred recovery for innocent injury? Is an automobile sufficiently different from a bottle of milk? Was there a difference in the manufacturers’ duties to inspect? Is there some other way to distinguish or reconcile the cases?
In fact, privity released its grip on the common law over decades rather than overnight. Even in New York, which was bound by MacPherson’s decision, and even as late as 1961, the Court of Appeals wrestled with how to resolve a case of injury in which the victim lacked formal privity with the defendant. In Greenberg v. Lorenz, a fifteen year-old, Sheila, was injured by a sharp metal object in a can of salmon purchased by her father. While the court did permit the plaintiff to recover despite the lack of privity, the court seemed to feel obliged to defend its reasoning.
In our view, the father’s purchase of the can of salmon to be eaten not by himself alone, but by the members of his household, including the plaintiff Sheila as well, was clearly one made by him for the entire household. [***] *885 It is not without interest in this case, though we need not test our decision on the incident, that the salmon was bought at Sheilas own request, because she preferred it to tuna fish which her mother had originally intended to serve at the evening meal. Greenberg v. Lorenz, 12 Misc. 2d 883, 885 (App. Term 1958), aff’d as modified, 7 A.D.2d 968, (1959), aff’d and modified, 9 N.Y.2d 195 (1961).
In the passage above, the court pointed out the father’s intent to provide for the whole household as well as Sheila’s request for this particular food, as though suggesting that her intent ought to be relevant in considering privity. It offered these factors to supplement an argument that the lack of privity should not be determinative on these facts.
It also turned to policy considerations. Food manufacturers necessarily contemplate a set of consumers broader than the purchasers, especially when advertising to parents who buy and prepare food for children:
In the case of highly advertised ‘baby foods,’ for instance, what can be fairly and reasonably urged to deny a tender infant recovery because it cannot claim that an umbilical cord of privity attaches it to a monolithic ‘chain store?’ TV, radio, billboard, magazine and newspaper advertising zoom forth strident ballyhoo and urgent ‘invitations to deal,’ addressed to fathers and mothers, to be sure but actually intended for the special benefit of their infants—for whom the foods have been primarily processed. As between weakening of privity in these food cases and diminishing consumer protection, common sense, as well as good conscience, permit no choice. ‘It is a melancholy state of affairs to witness courts more preoccupied with privity than consumer protection.’Id.
The court states its values plainly in prioritizing protection over privity but it does not do so lightly.It bolsters its arguments by noting the “constantly mounting criticism leveled at the requirement of strict contractual privity in this type of case” and concludes that privity can longer be understood to “confin[e] the right of recovery to the very individual who made the purchase.” Id. at 886.
In the light of today’s conditions it is fair to say that the rule is all but an anachronism—weighed on the scales of reality, it is found wanting. And, indeed it has been rejected outright in some jurisdictions, and denigrated in others in ‘domestic meals’ cases. This process has been supported on different bases: ‘household agency’, ‘agency for the consumer’, or ‘third party beneficiary’. The activating dynamic, however, has been constant, although variously called: ‘public policy’, ‘breach of duty’, ‘privity imposed by operation of law’, and simply ‘social justice’. Id.
Finally, it is noteworthy that the court could not identify precisely the theory underlying the right of recovery in the absence of privity but articulated strong views in favor of it nonetheless:
If it is not altogether clear whether it is on the theory of implied agency or third party beneficiary doctrine, or because it is a ‘wrongful act, neglect, or default’ (Greco v. S. S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 560, 115 A.L.R. 1020), it is manifest, nevertheless, that in these cases of the breach of an implied warranty of fitness for use in connection with the sale of foodstuffs, the traditional concept of privity no longer constrains the courts to an absurd as well as unconscionable result. Id. at 887.
Given what you understand about the common law, how would you explain the persistence of privity after MacPherson, even in cases like Redmond (almost a decade later) and Greenberg (45 years later)? What valuable role did privity serve? Why did the court not find it applied here? Which parts of the opinion are descriptive, and which parts are normative?
Note 5.Torts versus Contracts. What are the implications for Macpherson’s (famous) dicta below, from the perspectives of consumers and the various stakeholders affected by tort law?
We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.
Why does it matter whether contract or tort law provides the basis for recovery? What is the difference between a warranty and a contract? Does MacPherson feel like a natural extension of Mazetti? In what ways do these two cases diverge (descriptively) and to what extent (normatively), should they diverge or adopt parallel reasoning?
The next case explores express warranties and representations made to the buyer of a car. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/05%3A_Products_Liability_Law/5.02%3A_Implied_Warranty.txt |
(168 Wash. 456)
During the month of May, 1930, plaintiff purchased a model A Ford town sedan from defendant St. John Motors, a Ford dealer, who had acquired the automobile in question by purchase from defendant Ford Motor Company. Plaintiff claims that representations were made to him by both defendants that the windshield of the automobile was made of nonshatterable glass which would not break, fly, or shatter. October 12, 1930, while plaintiff was driving the automobile through Snoqualmie pass, a pebble from a passing car struck the windshield of the car in question, causing small pieces of glass to fly into plaintiff’s left eye, resulting in the loss thereof. Plaintiff brought this action for damages for the loss of his left eye and for injuries to the sight of his right eye. The case came on for trial, and, at the conclusion of plaintiff’s testimony, the court took the case from the jury and entered judgment for both defendants. From that judgment, plaintiff appeals. [***]
The principal question in this case is whether the trial court erred in refusing to admit in evidence, as against respondent Ford Motor Company, the catalogues and printed matter furnished by that respondent to respondent St. John Motors to be distributed for sales assistance. Contained in such printed matter were statements which appellant maintains constituted representations or warranties with reference to the nature of the glass used in the windshield of the car purchased by appellant. A typical statement, as it appears in appellant’s exhibit for identification No. 1, is here set forth:
“Triplex Shatter-Proof Glass Windshield. All of the new Ford cars have a Triplex shatter-proof glass windshield—so made that it will not fly or shatter under the hardest impact. This is an important safety factor because it eliminates the dangers of flying glass—the cause of most of the injuries in automobile accidents. In these days of crowded, heavy traffic, the use of this Triplex glass is an absolute necessity. Its extra margin of safety is something that every motorist should look for in the purchase of a car—especially where there are women and children.”
Respondent Ford Motor Company contends that there can be no implied or express warranty without privity of contract, and warranties as to personal property do not attach themselves to, and run with, the article sold.
[The court here referred at length to Mazetti v. Armour & Co., 75 Wash. 622 (1913)]
In the case at bar the automobile was represented by the manufacturer as having a windshield of nonshatterable glass “so made that it will not fly or shatter under the hardest impact.” An ordinary person would be unable to discover by the usual and customary examination of the automobile whether glass which would not fly or shatter was used in the windshield. In that respect the purchaser was in a position similar to that of the consumer of a wrongly labeled drug, who has bought the same from a retailer, and who has relied upon the manufacturer’s representation that the label correctly set forth the contents of the container. For many years it has been held that, under such circumstances, the manufacturer is liable to the consumer, even though the consumer purchased from a third person the commodity causing the damage. Thomas v. Winchester, 6 N.Y. 397. The rule in such cases does not rest upon contractual obligations, but rather on the principle that the original act of delivering an article is wrong, when, because of the lack of those qualities which the manufacturer represented it as having, the absence of which could not be readily detected by the consumer, the article is not safe for the purposes for which the consumer would ordinarily use it.
The vital principle present in the case of Mazetti v. Armour & Co., supra, confronts us in the case at bar. In the case cited the court recognized the right of a purchaser to a remedy against the manufacturer because of damages suffered by reason of a failure of goods to comply with the manufacturer’s representations as to the existence of qualities which they did not in fact possess, when the absence of such qualities was not readily discoverable, even though there was no privity of contract between the purchaser and the manufacturer.
Since the rule of caveat emptor was first formulated, vast changes have taken place in the economic structures of the English speaking peoples. Methods of doing business have undergone a great transition. Radio, billboards, and the products of the printing press have become the means of creating a large part of the demand that causes goods to depart from factories to the ultimate consumer. It would be unjust to recognize a rule that would permit manufacturers of goods to create a demand for their products by representing that they possess qualities which they, in fact, do not possess, and then, because there is no privity of contract existing between the consumer and the manufacturer, deny the consumer the right to recover if damages result from the absence of those qualities, when such absence is not readily noticeable. “An exception to a rule will be declared by courts when the case is not an isolated instance, but general in its character, and the existing rule does not square with justice. Under such circumstances a court will, if free from the restraint of some statute, declare a rule that will meet the full intendment of the law.” Mazetti v. Armour & Co., supra.
We hold that the catalogues and printed matter furnished by respondent [***] Ford Motor Company for distribution and assistance in sales were improperly excluded from evidence, because they set forth representations by the manufacturer that the windshield of the car which appellant bought contained Triplex nonshatterable glass which would not fly or shatter. The nature of nonshatterable glass is such that the falsity of the representations with reference to the glass would not be readily detected by a person of ordinary experience and reasonable prudence. Appellant, under the circumstances shown in this case, had the right to rely upon the representations made by respondent Ford Motor Company relative to qualities possessed by its products, even though there was no privity of contract between appellant and respondent Ford Motor Company. [***]
The trial court erred in taking the case from the jury and entering judgment for respondent Ford Motor Company. It was for the jury to determine under proper instructions, whether the failure of respondent Ford Motor Company to equip the windshield with glass which did not fly or shatter was the proximate cause of appellant’s injury. [***]
Reversed, with directions to grant a new trial with reference to respondent Ford Motor Company; affirmed as to respondent St. John Motors.
Note 1. What if the defendant in Baxter could not find safer glass to use, because none existed? What if they had used their very best efforts to find better glass, and genuinely and accurately believed that the glass they used was the safest available?
Note 2. Ford tried to argue that any warranties “run with the article sold.” What would that mean, in practical terms? Would it contravene the rule in MacPherson?
Note 3. The consumer in Baxter claims to have relied on the representations made in the express warranty. Does this assertion seem like a mere pretext to recover from an ordinary car accident? Or does it seem sound to hold the defendant to claims made in their brochure? Should the plaintiff have to prove reasonable reliance on the brochure, namely, that they reasonably relied on it in deciding to purchase the car (and perhaps would not otherwise have purchased it)? What does it do to the duties of those in the position to make such claims if reasonable or justifiable reliance by the consumer is a requirement for recovery under tort law? Does it sound in contract or tort law, in your estimation? Finally, does the conduct by the defendant here seem to generate liability more on the basis of negligence or strict liability?
Note 4. Why does the court believe that it was error to exclude the catalogues and printed advertising of Ford Motor Company in the prior litigation? On what grounds do you think the lower court likely excluded it in the first place?
(219 Ark. 428)
Appellee, Dr. H. W. Mattice, recovered a verdict and judgment for \$12,500 against appellant, Coca-Cola Bottling Co. of *429 Helena, Arkansas for injuries sustained from the alleged explosion of a bottle of Coca-Cola manufactured by appellant at its bottling plant in Forrest City, Arkansas.
[***] Appellee resides at Marianna, Arkansas where he has engaged in the practice of dentistry since 1922. About 10 a. m. on the day of his injury in September, 1947 appellee’s wife purchased from a Marianna grocer a case of Coca-Colas which had been delivered to the grocery store by a truck from appellant’s plant at Forrest City. The case of drinks was removed from a stack in the store where it had been placed by appellant’s truck driver and carefully placed in the car driven by appellee’s wife and transported to the Mattice home. Mrs. Mattice carefully placed the case behind a shrub where such drinks were usually kept.
After lunch at the Mattice home, appellee, his daughter, Clyde Mattice, and office assistant, Sybil Rice, started to return to appellee’s office in his car about 1 p.m., when appellee indicated that he would like to take some Coca-Colas to the office. Either Mrs. Mattice or Miss Rice took five or six bottles of Coca-Cola from the case and placed them on the floor of the rear compartment of the two-door sedan on the right side with the bottles lying flat on the floor and the crowns facing the rear seat. Clyde Mattice entered the front seat and appellee the rear seat of the car. Appellee was seated slightly to the left side on the rear seat of the car and was reaching over the bottles of Coca-Cola to open the right hand car door for Miss Rice to enter, when one of the bottles exploded. Appellee’s hand was about twenty-four inches above the bottles and the flying glass severed the radial nerve of his right wrist and cut his index finger. Since there is no contention that the verdict is excessive, we refrain from further detail of the serious and disabling nature of the injury. Appellee and his daughter were positive in their statements that he did not touch the bottles with his feet *430 and that said bottles were not otherwise agitated after they were placed on the floor of the car.
At the conclusion of the testimony on behalf of appellee, appellant moved for an instructed verdict on the ground that appellee had failed to establish the material allegations of the complaint and particularly the allegation that appellant was negligent in putting too high a carbonation in and otherwise negligently charging, filling, and capping the bottle which allegedly caused the injury. The motion was overruled on the ground that a prima facie case had been made under the doctrine of res ipsa loquitur, which the court held applicable.
Appellant then offered general but detailed proof of its bottling operation at its Forrest City plant about the time of the injury showing the various precautionary steps in the bottling process designed to prevent overcharging with carbonation or the use of defective bottles. Although daily written reports were made showing the hourly bottle pressure, bottle temperature and gas volume employed in the bottling process in September, 1947, such records were not preserved or introduced in evidence.
Scientific proof was also introduced to show that Coca-Cola bottles generally could withstand pressures several times greater than appellant’s equipment, when properly used, could put in them and that during the bottling process the bottles were subjected to such pressure as to eliminate weak or defective bottles. There was also general proof to the effect that the bottled product was handled carefully in making deliveries to retail stores but no specific proof as to the manner in which the case in question was handled.
Appellant’s first contention for reversal is that the trial court erred in holding the doctrine of res ipsa loquitur applicable. We held the doctrine applicable to exploding bottled beverages in the recent case of Coca-Cola Bottling Co. of Fort Smith v. Hicks, 215 Ark. 803, but it is insisted that this is the minority rule and that appellee’s proof is insufficient to invoke *431 the rule announced in that case. We there held that the fact that the instrumentality causing an injury may have actually passed out of the physical possession of the defendant does not foreclose application of the res ipsa loquitur doctrine, ‘when a plaintiff shows that an exploding bottle was handled with due care after it left the control of the defendant, and that the bottle had not been subject to extraneous harmful forces during that time’. It is undisputed that the case of Coca-Colas which contained the bottle which later exploded was delivered to T. K. Fong’s Grocery by appellant. Appellee offered testimony tending to show that the case of Coca-Colas remained undisturbed in the store where it was stacked by appellant’s driver until it was carefully placed in appellee’s car and transported to his home and deposited in the shrubbery near the house where it remained unmolested for about two hours when six of the bottles were removed and placed on the car floor without any undue handling of the bottles. There was further evidence that the six bottles were in no manner disturbed from the time they were placed on the floor until the bottle exploded.
In instructions requested by both parties the jury was required to find, and the burden was placed on appellee to show, that the explosion was not caused by any act of appellee or third persons who may have handled the bottle and that no other independent cause intervened to bring about the explosion from the time the bottle left the control of appellant. When the evidence is considered in the light most favorable to appellee, we deem it sufficient to satisfy the burden thus placed upon him.
It is next argued that even if the res ipsa doctrine is applicable, the prima facie case made by appellee, or the presumption of negligence arising from proof of the circumstances of the injury, was completely dispelled when appellant ‘offered’ proof of its due care ‘at or about’ the time the bottle of Coca-Cola in question was manufactured and sold. [***] If the prima facie case made by plaintiff in a case where the doctrine of res ipsa loquitur is applicable may be completely dissipated by merely offering some proof of due care on defendant’s part, then the whole doctrine is dangerously weakened if not completely devitalized. If the trier of facts is bound to accept such offered proof regardless of its questionable or perjured character, the jury’s time-honored province of determining the credibility of witnesses and the weight to be given testimony is not only invaded but utterly subdued.
We next consider the assignments of error relating to the giving of Plaintiff’s Requested Instructions Nos. 2 and 3, which read:
‘No. 2. If you find from a preponderance of the testimony that the bottle of Coca Cola exploded and proximately caused the injury complained of, was manufactured, sold and distributed by the defendant herein and that it actually exploded and caused the injury; and you further find from a preponderance of the evidence that there was no negligence on the part of the plaintiff H. W. Mattice and that no independent cause intervened between the time the bottle left the exclusive possession of the defendant and the time of the explosion, that would cause the explosion, you are then instructed that the fact of the explosion of the said bottle raises a presumption of negligence on the part of the defendant and your verdict will be for the plaintiff, unless you should find that the presumption of negligence has been overcome by evidence on the part of the defendant.
*435 ‘Upon proof of the fact of the explosion, as set out in the above instruction, the burden of proof then shifts to the defendant to show by a preponderance of the evidence that it was free from negligence and upon failure of the defendant to meet that burden of proof you will be warranted in finding for the plaintiff.’
‘No. 3. You are instructed that where the explosion is caused by a bottle of Coca-Cola that is under the control and custody of the defendant, or that after it left the control and custody of the defendant it is shown by a preponderance of the evidence that the bottle has not been subjected to extraneous harmful forces during that time, and that the explosion and injury is such that in the ordinary course of things would not occur, if those who have such control and custody use proper care, the happening of the explosion with the resulting damage is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused by the negligence of the defendant.’
Each of the instructions was specifically objected to because it placed the burden of proof in the whole case on appellant to show that it was not guilty of negligence when the burden is actually upon appellee to prove negligence and because the instructions set up two different burdens for appellant and were contradictory within themselves and with other instructions given. In disposing of this contention, we examine briefly the development of the res ipsa doctrine. It was announced by the English courts apparently as a court-made rule of substantive law. The English decisions hold that the presumption of negligence arising under the doctrine is a legal presumption which shifts the burden of proof to defendant to prove himself free from negligence by a preponderance of the evidence. The English cases were followed by early decisions in this country. Typical of these is our own case of Railway Co. v. Hopkins, 54 Ark. 209, where an instruction was approved which definitely recognized the burden shifting rule. [***]
In later American cases much confusion and division of authority have developed concerning the effect of the doctrine on the burden of proof, as is demonstrated by the following statement in 65 C.J.S., Negligence, § 220(9) b: ‘The general rule, as broadly stated in the cases, is that, where plaintiff has established a presumptive or prima facie case of negligence by virtue of the doctrine of res ipsa loquitur, it is then incumbent on defendant, if he wishes to avoid the effect of the doctrine or the risk of the inference or presumption which may arise, to introduce evidence to explain, rebut, or otherwise overcome the presumption or inference that the injury complained of was due to negligence on his part.
[c] [T]he general rule that the burden of proving negligence on the part of defendant rests throughout the trial on plaintiff is generally held not affected by the doctrine of res ipsa loquitur, and the burden is still on plaintiff to establish the negligence of defendant, and, on the whole evidence, he must have the preponderance in order to succeed, although where defendant *437 fails to overcome the presumption or inference raised by the doctrine this burden is sustained. The application of the doctrine of res ipsa loquitur does not convert defendant’s plea of the general issue or general denial into an affirmative defense with respect to the burden of proof.’ The confusion becomes more confounded when the list of cases cited in support of the above statement shows several states following both views.
While our earlier cases clearly recognized the rule as adopted by the English courts, later cases have adopted the so-called general rule as above stated and hold that the true burden of proof in the sense of the risk of nonpersuasion does not shift but that the burden of producing or going forward with the evidence does shift.
In Arkansas Light and Power Co. v. Jackson, supra, [c], the following instruction was challenged:
‘You are instructed that, where injury or death is caused by a thing or instrumentality that is under the control or management of the defendant, and the injury or death is such that in the ordinary course of things would not occur, if those who have such control or management use proper care, the happening of the injury is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through lack of care on defendant’s part.’ In approving this instruction the court said: ‘This instruction does not tell the jury there was a presumption of negligence from the mere occurrence of the injury, nor did it relieve the plaintiff from the burden of proving negligence. The burden of proof to establish negligence was on the plaintiff, and the instruction did not shift this burden. …
‘The doctrine of res ipsa loquitur does not relieve the plaintiff of the burden of proving negligence; it merely declares the conditions under which a prima facie showing of negligence has been made, and, where this has been done, the defendant having the custody and control of the agency causing the injury and the opportunity to make the examination to discover the cause, must furnish the explanation which this opportunity affords to overcome the prima facie showing made by the plaintiff. Such is the purport of the instruction as we understand it, and no error was committed *438 in giving it under the facts of this case.’ [***]
[W]e find no error in the giving of Plaintiff’s Requested Instruction No. 3 or the first paragraph of Instruction No. 2. But the language of paragraph 2 of Plaintiff’s Requested Instruction No. 2 clearly shifted the true burden of proof to the appellant to show by a preponderance of all the evidence that it was free from negligence. It conflicted with other instructions given placing the burden of proof on appellee to establish his case by a preponderance of all the evidence. In the annotation in 42 A.L.R. 865 numerous cases are cited from those jurisdictions which recognize the so-called general rule, holding the giving of similar instructions prejudicial and ground for reversal. So we hold that the giving of paragraph 2 of Requested Instruction No. 2 resulted in reversible error. [***]
For the error indicated in the giving of Appellee’s Requested Instruction No. 2, the judgment is reversed and the cause remanded for a new trial.
Note 1. Review the three prongs of the test for res ipsa loquitur (discussed in connection with Byrne v. Boadle, Court of Exchequer (1863) in Module 3) in light of the analysis above. Review our earlier discussion of the distinctions between the burden of production (which the court here refers to as the “burden of going forward”) and the burden of persuasion. Recall, too Rodriguez v. City of New York , 31 N.Y.3d 312 (2018) in Module 4 and the dueling opinions’ view of whether the plaintiff on a summary judgment must prove that they are free from negligence to prevail at that stage. What is the significance here, of where to place the burden? What is at stake and why might it either differ or resemble the comparative fault context of Rodriguez?
Note 2. You have learned that burden-shifting is a device through which legal rules can “place a thumb on the scale” for a party, that is, can help a party on a given issue or action. It is not usually fully dispositive (although it can be); typically it does provide some meaningful assistance. As you encounter various different kinds of actions in products liability law, consider whether the underlying policy concerns, and tort law’s purposes, justify existing or additional use of burden-shifting devices in order to assist stakeholders at different points in legal conflicts. The next case features another exploding Coca-Cola bottle. The majority opinion deploys res ipsa loquitur again, while the concurrence, penned the extremely influential Justice Traynor, provides a harbinger of the strict liability rule that will follow in a later landmark case for which he writes the majority opinion. Normatively, consider the arguments in favor of channeling plaintiffs through the standard negligence action versus permitting them to use strict liability to recover.
(24 Cal.2d 453) En bank [sic]
Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand. She alleged that defendant company, which had bottled and delivered the alleged defective bottle to her employer, was negligent in selling ‘bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous … and likely to explode.’ This appeal is from a judgment upon a jury verdict in favor of plaintiff.
Defendant’s driver delivered several cases of Coca Cola to the restaurant, placing them on the floor, one on top of the other, under and behind the counter, where they remained at least thirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon a near-by ice cream cabinet in front of and about three feet from the refrigerator. She then proceeded to take the bottles from the case with her right hand, one at a time, and put them into the refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had moved the fourth bottle about 18 inches from the case ‘it exploded in my hand.’ The bottle broke into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand. Plaintiff further testified that when the bottle exploded, ‘It made a sound similar to an electric light bulb that would have dropped. It made a loud pop.’ Plaintiff’s employer testified, ‘I was about twenty feet from where it actually happened and I heard the explosion.’ A fellow employee, on the opposite side of the counter, testified that plaintiff ‘had the bottle, I should judge, waist high, and I know that it didn’t bang either the case or the door or another bottle,’ when it popped. It sounded just like a fruit jar would blow up…’ The witness further testified that the contents of the bottle ‘flew all over herself and myself and the walls and one thing and another.’
The top portion of the bottle, with the cap, remained in plaintiff’s hand, and the lower portion fell to the floor but did not break. The broken bottle was not produced at the trial, the pieces having been thrown away by an employee of the restaurant shortly after the accident. Plaintiff, however, described the broken pieces, and a diagram of the bottle was made showing the location of the ‘fracture line’ where the bottle broke in two.
*457 One of defendant’s drivers, called as a witness by plaintiff, testified that he had seen other bottles of Coca Cola in the past explode and had found broken bottles in the warehouse when he took the cases out, but that he did not know what made them blow up.
Plaintiff then rested her case, having announced to the court that being unable to show any specific acts of negligence she relied completely on the doctrine of res ipsa loquitur. Defendant contends that the doctrine of res ipsa loquitur does not apply in this case, and that the evidence is insufficient to support the judgment. Many jurisdictions have applied the doctrine in cases involving exploding bottles of carbonated beverages. [cc] It would serve no useful purpose to discuss the reasoning of the foregoing cases in detail, since the problem is whether under the facts shown in the instant case the conditions warranting application of the doctrine have been satisfied.
Res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the injury and (2) the accident is of such a nature that it ordinarily *458 would not occur in the absence of negligence by the defendant. [cc] Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant’s possession. [***] As said in Dunn v. Hoffman Beverage Co., 126 N.J.L. 556, ‘defendant is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management; [***] to get to the jury the plaintiff must show that there was due care during that period.’ (3) Plaintiff must also prove that she handled the bottle carefully. The reason for this prerequisite is set forth in Prosser on Torts, supra, at page 300, where the author states: ‘Allied to the condition of exclusive control in the defendant is that of absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course, is to eliminate the possibility that it was the plaintiff who was responsible. If the boiler of a locomotive explodes while the plaintiff engineer is operating it, the inference of his own negligence is at least as great as that of the defendant, and res ipsa loquitur will not apply until he has accounted for his own conduct.’ [c] It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. Cf. Prosser, supra, p. 300. If such evidence is presented, the question becomes one for the trier of fact (see, e. g., *459 MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365), and, accordingly, the issue should be submitted to the jury under proper instructions.
In the present case no instructions were requested or given on this phase of the case, although general instructions upon res ipsa loquitur were given. Defendant, however, has made no claim of error with reference thereto on this appeal. Upon an examination of the record, the evidence appears sufficient to support a reasonable inference that the bottle here involved was not damaged by any extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.
The next question, then, is whether plaintiff may rely upon the doctrine of res ipsa loquitur to supply an inference that defendant’s negligence was responsible for the defective condition of the bottle at the time it was delivered to the restaurant. Under the general rules pertaining to the doctrine, as set forth above, it must appear that bottles of carbonated liquid are not ordinarily defective without negligence by the bottling company. [***]
An explosion such as took place here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of a bottle containing a safe pressure, or by a combination of these two possible causes. The question is whether under the evidence there was a probability that defendant was negligent in any of these respects. If so, the doctrine of res ipsa loquitur applies. The bottle was admittedly charged with gas under pressure, and the charging of the bottle was within the exclusive control of defendant. As it is a matter of common knowledge that an overcharge would not ordinarily result without negligence, it follows under the doctrine of res ipsa loquitur that if the bottle was in fact excessively charged an inference of defendant’s negligence would arise. If *460 the explosion resulted from a defective bottle containing a safe pressure, the defendant would be liable if it negligently failed to discover such flaw. If the defect were visible, an inference of negligence would arise from the failure of defendant to discover it.
Where defects are discoverable, it may be assumed that they will not ordinarily escape detection if a reasonable inspection is made, and if such a defect is overlooked an inference arises that a proper inspection was not made. A difficult problem is presented where the defect is unknown and consequently might have been one not discoverable by a reasonable, practicable inspection. In the Honea case we refused to take judicial notice of the technical practices and information available to the bottling industry for finding defects which cannot be seen. In the present case, however, we are supplied with evidence of the standard methods used for testing bottles.
A chemical engineer for the Owens-Illinois Glass Company and its Pacific Coast subsidiary, maker of Coca Cola bottles, explained how glass is manufactured and the methods used in testing and inspecting bottles. He testified that his company is the largest manufacturer of glass containers in the United States, and that it uses the standard methods for testing bottles recommended by the glass containers association. A pressure test is made by taking a sample from each mold every three hours—approximately one out of every 600 bottles—and subjecting the sample to an internal pressure of 450 pounds per square inch, which is sustained for one minute. (The normal pressure in Coca Cola bottles is less than 50 pounds per square inch.) The sample bottles are also subjected to the standard thermal shock test. The witness stated that these tests are ‘pretty near’ infallible.
It thus appears that there is available to the industry a commonly-used method of testing bottles for defects not apparent to the eye, which is almost infallible. Since Coca Cola bottles are subjected to these tests by the manufacturer, it is not likely that they contain defects when delivered to the bottler which are not discoverable by visual inspection. Both new and used bottles are filled and distributed by defendant. The used bottles are not again subjected to the tests referred to above, and it may be inferred that defects not discoverable by visual inspection do not develop in bottles after they are manufactured. Obviously, if such defects do *461 occur in used bottles there is a duty upon the bottler to make appropriate tests before they are refilled, and if such tests are not commercially practicable the bottles should not be re-used. This would seem to be particularly true where a charged liquid is placed in the bottle. It follows that a defect which would make the bottle unsound could be discovered by reasonable and practicable tests.
Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present.
It is true that defendant presented evidence tending to show that it exercised considerable precaution by carefully regulating and checking the pressure in the bottles and by making visual inspections for defects in the glass at several stages during the bottling process. It is well settled, however, that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled. …
The judgment is affirmed. SHENK, CURTIS, CARTER, and SCHAUER, JJ., concurred. EDMONDS, J, dissenting. Rehearing denied.
TRAYNOR, Justice, concurring.
I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. MacPherson v. Buick Motor Co., 217 N.Y. 382, established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer is responsible *462 for an injury caused by such an article to any person who comes in lawful contact with it. [***] In these cases the source of the manufacturer’s liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others.
Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.
The injury from a defective product does not become a matter of indifference because the defect arises from causes other than the negligence of the manufacturer, such as negligence of a submanufacturer of a component part whose defects could not be revealed by inspection [***] or unknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of the manufacturer. The inference of negligence may be dispelled by an affirmative showing of proper care. If the evidence against the fact inferred *463 is ‘clear, positive, uncontradicted, and of such a nature that it can not rationally be disbelieved, the court must instruct the jury that the nonexistence of the fact has been established as a matter of law.’ Blank v. Coffin, 20 Cal.2d 457, 461. An injured person, however, is not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to the jury to decide whether the inference has been dispelled, regardless of the evidence against it, the negligence rule approaches the rule of strict liability. It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence. If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly.
In the case of foodstuffs, the public policy of the state is formulated in a criminal statute. Section 26510 of the Health and Safety Code, St.1939, p. 989, prohibits the manufacturing, preparing, compounding, packing, selling, offering for sale, or keeping for sale, or advertising within the state, of any adulterated food. Section 26470, St.1941, p. 2857, declares that food is adulterated when ‘it has been produced, prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome or injurious to health.’ The statute imposes criminal liability not only if the food is adulterated, but if its container, which may be a bottle (§ 26451, St.1939, p. 983), has any deleterious substance (§ 26470(6), or renders the product injurious to health (§ 26470(4)). The criminal liability under the statute attaches without proof of fault, so that the manufacturer is under the duty of ascertaining whether an article manufactured by him is safe. People v. Schwartz, 28 Cal.App.2d Supp. 775. Statutes of this kind result in a strict liability of the manufacturer in tort to the member of the public injured. [***]
The statute may well be applicable to a bottle whose defects cause it to explode. In any event it is significant that the statute imposes criminal liability without fault, reflecting the public policy of protecting the public from dangerous products placed on the market, irrespective of negligence in their manufacture. While the Legislature imposes criminal liability *464 only with regard to food products and their containers, there are many other sources of danger. It is to the public interest to prevent injury to the public from any defective goods by the imposition of civil liability generally.
The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product [***] The courts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him to recoup any losses by means of the warranty of safety attending the wholesaler’s or manufacturer’s sale to him. Ward v. Great Atlantic & Pacific Tea Co., supra; see Waite, Retail Responsibility and Judicial Law Making, 34 Mich. L. Rev. 494, 509. Such a procedure, however, is needlessly circuitous and engenders wasteful litigation. Much would be gained if the injured person could base his action directly on the manufacturer’s warranty.
The liability of the manufacturer to an immediate buyer injured by a defective product follows without proof of negligence from the implied warranty of safety attending the sale. Ordinarily, however, the immediate buyer is a dealer who does not intend to use the product himself, and if the warranty of safety is to serve the purpose of protecting health and safety it must give rights to others than the dealer. In the words *465 of Judge Cardozo in the MacPherson case [217 N.Y. 382,]: ‘The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion.’ While the defendant’s negligence in the MacPherson case made it unnecessary for the court to base liability on warranty, Judge Cardozo’s reasoning recognized the injured person as the real party in interest and effectively disposed of the theory that the liability of the manufacturer incurred by his warranty should apply only to the immediate purchaser. It thus paves the way for a standard of liability that would make the manufacturer guarantee the safety of his product even when there is no negligence.
This court and many others have extended protection according to such a standard to consumers of food products, taking the view that the right of a consumer injured by unwholesome food does not depend ‘upon the intricacies of the law of sales’ and that the warranty of the manufacturer to the consumer in absence of privity of contract rests on public policy. [***] Dangers to life and health inhere in other consumers’ goods that are defective and there is no reason to differentiate them from the dangers of defective food products. [***]
In the food products cases the courts have resorted to various fictions to rationalize the extension of the manufacturer’s warranty to the consumer: that a warranty runs with the chattel; that the cause of action of the dealer is assigned to the consumer; that the consumer is a third party beneficiary of the manufacturer’s contract with the dealer. They have also held the manufacturer liable on a mere fiction of negligence: *466 ‘Practically he must know it [the product] is fit, or take the consequences, if it proves destructive.’ [***] Such fictions are not necessary to fix the manufacturer’s liability under a warranty if the warranty is severed from the contract of sale between the dealer and the consumer and based on the law of torts [cc] As the court said in Greco v. S. S. Kresge Co., supra [277 N.Y. 26], ‘Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default, and, in its essential nature, a tort.’ [c]
As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. See Thomas v. Winchester, 6 N.Y. 397; Baxter v. Ford Motor Co., 168 Wash. 456; [cc].
Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark. See [cc] Schechter, The Rational Basis of Trade Mark Protection, 40 Harv.L.Rev. 813, 818. Manufacturers have sought to justify that faith by increasingly high standards of inspection and a readiness to make good on defective products by way of replacements and refunds. The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them; it cannot be escaped because the marketing of a product has become so complicated as to require one or more *468 intermediaries. Certainly there is greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a product that he is not himself able to test.
The manufacturer’s liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market.
Note 1. Why isn’t the availability of res ipsa loquitur enough, in Justice Traynor’s view, to solve the pressing public policy concerns around defective products?
Note 2. The majority opinion follows a “formalist” approach: it uses the doctrine of res ipsa loquitur and existing tools and rules and arrives at an outcome for the plaintiff. Generally doing so, however, might require a court to consider custom evidence from the bottling industry, expert evidence on that topic, witness testimony on the handling of the bottle during its entire life cycle, and extensive factual accounts from all the possible parties and their witnesses. Justice Traynor’s concurrence reflects impatience with this means of resolving the problem, even if he approves of the outcome.
Recall how in Coca-Cola Bottling Works v. Lyons (the Mississippi case), the court noted that it could use a theory of joint ownership, or a theory that soda was a gift whose title “ran” with the object. The court appeared to be stating how it could circumvent the privity requirement, and how a formalist approach, using the law’s formal rules could technicallypermit recovery. Instead, however, the court grounded its holding in a functionalist approach that used substantive tort principles (rather than technical rules) to find that recovery should be allowed even without formal privity. Traynor’s concurrence here displays that same commitment to functionalizing tort law. He states that “[i]n the food products cases the courts have resorted to various fictions to rationalize the extension of the manufacturer’s warranty.” By characterizing these tactics as “fictions,” Traynor is critiquing courts that use and contort formal rules, simply because they are possible means of resolution (like the joint ownership theory in Lyons), when they are not the best or the rational means to use. Traynor would have preferred the functionalist reasoning of the Lyons court’s ultimate holding and rationale. In his view, the proper course of action was to allow function, rather than form, to dictate the legal analysis and outcome.
Note 3. Identify at least two of Justice Traynor’s policy arguments. Why is he concurring rather than dissenting? Why do you imagine that he was concurring, rather than assigned to write the majority opinion? This concurrence is one of the most famous opinions in 20th century tort law, which is somewhat unusual for a concurring opinion. It is widely thought to have paved the way for strict liability in products liability cases. In the next case, decided nearly two decades later, Justice Traynor writes for the majority, building on his concurrence in Escola. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/05%3A_Products_Liability_Law/5.03%3A_Express_Warranty.txt |
(59 Cal.2d 57)
Plaintiff brought this action for damages against the retailer and the manufacturer of a Shopsmith, a combination power tool that could be used as a saw, drill, and wood lathe. He saw a Shopsmith demonstrated by the retailer and studied a brochure prepared by the manufacturer. He decided he wanted a Shopsmith for his home workshop, and his wife bought and gave him one for Christmas in 1955. In 1957 he bought the necessary attachments to use the Shopsmith as a lathe for turning a large piece of wood he wished to make into a chalice. After he had worked on the piece of wood several times without difficulty, it suddenly flew out of the machine and struck him on the forehead, inflicting serious injuries. About ten and a half months later, he gave the retailer and the manufacturer written notice of claimed breaches of warranties and filed a complaint against them alleging such breaches and negligence.
After a trial before a jury, the court ruled that there was no evidence that the retailer was negligent or had breached any express warranty and that the manufacturer was not liable for the breach of any implied warranty. Accordingly, it submitted to the jury only the cause of action alleging breach of implied warranties against the retailer and the causes of action alleging negligence and breach of express warranties against the manufacturer. The jury returned a verdict for the retailer against plaintiff and for plaintiff against the manufacturer in the amount of \$65,000. The trial court denied the manufacturer’s motion for a new trial and *60 entered judgment on the verdict. The manufacturer and plaintiff appeal. Plaintiff seeks a reversal of the part of the judgment in favor of the retailer, however, only in the event that the part of the judgment against the manufacturer is reversed.
Plaintiff introduced substantial evidence that his injuries were caused by defective design and construction of the Shopsmith. His expert witnesses testified that inadequate set screws were used to hold parts of the machine together so that normal vibration caused the tailstock of the lathe to move away from the piece of wood being turned permitting it to fly out of the lathe. They also testified that there were other more positive ways of fastening the parts of the machine together, the use of which would have prevented the accident. The jury could therefore reasonably have concluded that the manufacturer negligently constructed the Shopsmith. The jury could also reasonably have concluded that statements in the manufacturer’s brochure were untrue, that they constituted express warranties, and that plaintiff’s injuries were caused by their breach. The manufacturer contends, however, that plaintiff did not give it notice of breach of warranty within a reasonable time and that therefore his cause of action for breach of warranty is barred by section 1769 of the Civil Code. Since it cannot be determined whether the verdict against it was based on the negligence or warranty cause of action or both, the manufacturer concludes that the error in presenting the warranty cause of action to the jury was prejudicial.
Section 1769 of the Civil Code provides: “In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.” [***] *61
The notice requirement of section 1769, however, is not an appropriate one for the court to adopt in actions by injured consumers against manufacturers with whom they have not dealt. [***] “As between the immediate parties to the sale, [the notice requirement] is a sound commercial rule, designed to protect the seller against unduly delayed claims for damages. As applied to personal injuries, and notice to a remote seller, it becomes a booby-trap for the unwary. The injured consumer is seldom ‘steeped in the business practice which justifies the rule,’ [***] and at least until he has had legal advice it will not occur to him to give notice to one with whom he has had no dealings.” (Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099, 1130, footnotes omitted.)
It is true that in [earlier California cases] the court assumed that notice of breach of warranty must be given in an action by a consumer against a manufacturer. Since in those cases, however, the court did not consider the question whether a distinction exists between a warranty based on a contract between the parties and one imposed on a manufacturer not in privity with the consumer, the decisions are not authority for rejecting the rule. [cc]
We conclude, therefore, that even if plaintiff did not give timely notice of breach of warranty to the manufacturer, his cause of action based on the representations contained in the brochure was not barred. Moreover, to impose strict liability on the manufacturer under the circumstances of this case, it was not necessary for plaintiff to establish an express warranty as defined in section 1732 of the Civil Code. A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Recognized first in the case of unwholesome food products, such liability has now been extended to a variety of other products that create as great or greater hazards if defective. (Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 347 (grinding wheel); Vallis v. Canada Dry Ginger Ale, Inc., 190 Cal.App.2d 35, 42-44 (bottle); Jones v. Burgermeister Brewing Corp., 198 Cal.App.2d 198, 204 (bottle); Gottsdanker v. Cutter Laboratories, 182 Cal.App.2d App.2d 602, 607 (vaccine); McQuaide v. Bridgport Brass Co., D.C., 190 F.Supp. 252, 254 (insect spray); Bowles v. Zimmer Manufacturing Co., 7 Cir., 277 F.2d 868, 875 (surgical pin); Thompson v. Reedman, D.C., 199 F.Supp. 120, 121 (automobile); Chapman v. Brown, D.C., 198 F.Supp. 78, 118, 119, affd. Brown v. Chapman, 9 Cir., 304 F.2d 149 (skirt); B. F. Goodrich Co. v. Hammond, 10 Cir., 269 F.2d 501, 504 (automobile tire); Markovich v. McKesson and Robbins, Inc., 106 Ohio App. 265 *63 (home permanent); Graham v. Bottenfield’s Inc., 176 Kan. 68(hair dye); General Motors Corp. v. Dodson, 47 Tenn.App. 438, 661 (automobile); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (automobile); Hinton v. Republic Aviation Corporation, D.C., 180 F.Supp. 31, 33 (airplane).)
Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law [***], and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products [***], make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort. Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer’s liability to those injured by their defective products unless those rules also serve the purposes for which such liability is imposed.
We need not recanvass the reasons for imposing strict liability on the manufacturer. They have been fully articulated in the cases cited above. (See also 2 Harper and James, Torts, ss 28.15-28,16, pp. 1569-1574; Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461, concurring opinion.) The purpose of such liability is to ensure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. Sales warranties serve this purpose *64 fitfully at best. (See Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099, 1124-1134.) In the present case, for example, plaintiff was able to plead and prove an express warranty only because he read and relied on the representations of the Shopsmith’s ruggedness contained in the manufacturer’s brochure. Implicit in the machine’s presence on the market, however, was a representation that it would safely do the jobs for which it was built.
Under these circumstances, it should not be controlling whether plaintiff selected the machine because of the statements in the brochure, or because of the machine’s own appearance of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would safely do the jobs it was built to do. It should not be controlling whether the details of the sales from manufacturer to retailer and from retailer to plaintiff’s wife were such that one or more of the implied warranties of the sales act arose. [cc] “The remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales.” [***] To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.
… The judgment is affirmed.
Note 1. What is the holding in this case? How does Justice Traynor build on and extend the concurrence he authored in Escola v. Coca Cola Bottling (supra under Express Warranty)?
Note 2. Why does Justice Traynor find that Greenman’s failure to provide timely notice should not bar his breach of warranty claim against the manufacturer?
Note 3. In what way was the Shopsmith potentially defectively constructed?
Note 4. The jury was presented with theories of negligent construction as well as breach of express warranties. The manufacturer argued on appeal that the jury verdict might have been decided due to the breach of warranty claim which (it asserted) was time-barred. Traynor decided that it was irrelevant which theory of liability had persuaded the jury. Why?
Check Your Understanding (5-1)
Question 1. True or false: The legal reasoning in Coca Cola v. Lyons provided an example of formalism, rather than functionalism.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. Which of the following arguments are inconsistent with the views of Justice Traynor on product liability law?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The question was aimed at distinguishing consistent views in favor of expanding liability from a theory under which one might shrink liability instead (namely, that liability should not attach if the risks are low or infrequent or unforeseeable, or all of the above). The distinction is important partly because it reflects the schism in products liability law between strict liability (Traynor’s aspirations) and negligence (which is what much of the law in this area eventually returned to as a standard, with the exceptions of manufacturing defect, express warranty, or any jurisdiction-specific rules creating strict liability). Some jurisdictions no longer allow strict liability for products liability cases at all. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/05%3A_Products_Liability_Law/5.04%3A_Strict_Products_Liability.txt |
Restatement (Second) of Torts: Defective, Unreasonably Dangerous Products
In 1965, The American Law Institute endorsed The Restatement (Second) of Torts § 402(A) which, under certain conditions, imposes strict liability upon a seller or manufacturer of a product who sells “any product in a defective condition unreasonably dangerous to the user or consumer…” (emphasis added) for physical harm to the consumer caused by such product. Section 402(A) has since been adopted by the vast majority of states.
§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Note 1. In Section 402A(1), what does “a defective condition unreasonably dangerous to the user” mean? Can a defective condition escape legal consequences for its manufacturer or seller if it is only reasonably dangerous? Who do you think is likely to decide what constitutes a defective condition? Who would you think is likely to decide whether the defect is reasonably versus unreasonably dangerous? Why do you think that is so? What sorts of evidence might be used to prove defectiveness, dangerousness and reasonableness, respectively?
Note 2. Would it surprise you to learn that the phrase, as adopted in most jurisdictions, expressly omits the word “unreasonably”? The standard is often stated thus: “defective condition dangerous to the user.” Why do you think that might be?
Note 3. How do Sections 402A(1)(a) and (b) limit the scope of liability? What do you imagine are the real-world effects of such provisions?
Note 4. How do Sections 402A(2)(a) and (b) expand the scope of liability? What is the practical legal effect of each of those provisions?
A Categorical Approach to Liability for Defective Products
In addition to § 402(A), The American Law Institute adopted Restatement (Third) of Torts §§ 1 & 2 in 1998. These newer sections impose liability upon commercial sellers and distributors for harm caused by defective products, and delineate categories of “product defect.” Sections 1 & 2 have been controversial due partly to their use of the reasonable alternative design (as an apparent requirement imposed on the plaintiff rather than a theory of liability and admissible evidence available for the plaintiff).
The relevant volume of the Restatement (Third) of Torts sets out three types of defects that may render a product “unreasonably dangerous”: manufacturing defect; design defect; and defective (or inadequate) warning.
Restatement (Third) of Torts: Products Liability (1998)
§ 1. Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.
§ 2. Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.
A product:
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
Contemporary case law has widely adopted this categorical approach as the cases in this section of the book illustrate. A particular unit of a product may be defective because of an imperfection in the manufacturing process. (Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). Additionally, a product’s design may render the item “unreasonably dangerous.” Ford Motor Co. v. Trejo, 133 Nev. 520 (2017). Finally, a failure to post adequate warnings may deem a product “unreasonably dangerous.” Shinedling v. Sunbeam Products, Inc., U.S. Dist. Court, C.D. Cal. (2014) (2014 WL 12589646).
Exam Tip: When facing a products liability fact pattern, you will need to identify what sort of defect, if any, exists, before you can identify which liability regime will apply.
(242 S.W.3d 32)
In this products liability case, Ford Motor Co. argues that the trial court reversibly erred in charging the jury by giving an incomplete definition of “manufacturing defect.” We agree. [***] We remand the case for a new trial under a jury charge that reflects our applicable caselaw, including our decision today. In March 1999, Tiburicio Ledesma, Jr. purchased a new Ford F–350 Super Duty pickup truck for his construction business. The truck had four rear tires, two on each side, surrounded by fiberglass fenders extending beyond the sides of the truck.
On June 5, 1999, Ledesma turned onto a two-lane street in Austin and began to accelerate. He testified that after shifting gears the truck suddenly began to lurch, and he lost control, striking two parked cars, a Firebird and a Civic, on the side of the street. The truck then hit the street curb and came to rest. At the time of the accident, the truck’s odometer read about 4,100 miles. Power from the truck engine is conveyed to the rear axle by the drive shaft, which connects the transmission in the front of the truck with the differential/rear axle assembly in the rear. As seen in the trial exhibit reproduced below, the rear-axle housing is attached to two sets of rear leaf springs by u-bolts, which wrap around the axle housing and are bolted to a rear spring plate that sits on top of the leaf-spring assembly. On each side of the truck, two u-bolts attach the rear-axle housing to a spring plate and set of leaf springs.
Both parties agree that the truck’s rear leaf spring and axle assembly came apart and that this separation caused the drive shaft to dislodge from the transmission. The core dispute centers on when and why this malfunction occurred and whether it caused the collision or resulted from it. That is, did a manufacturing defect trigger the right rear-axle displacement and cause Ledesma to lose control of the truck and strike the parked cars (as Ledesma claims), or did the right rear axle detach when Ledesma struck the parked cars and curb (as Ford claims)?
At trial, Ledesma claimed that he lost control of the truck when its drive shaft separated from the transmission and “pronged” on the pavement, causing him to hit the parked cars. A police officer testified that he investigated the accident scene and prepared a report based on Ledesma’s description of the accident. The report makes no mention of any other witnesses. Ledesma also presented two expert witnesses in support of his manufacturing defect claim, as discussed below.
Ford presented an expert, Dan May, in support of its theory that the axle-to-spring attachment failed, not because of a manufacturing defect, but because of the forces exerted on it when Ledesma struck the parked vehicles and curb. Among other efforts to discredit May, Ledesma emphasized to the jury that May was a long-time Ford employee and had never found a defect in a Ford product.
Ford also called the owner of the Firebird, Edward Plyant, who testified by deposition that he witnessed the accident from a driveway. Plyant testified that Ledesma was speeding and inattentive and struck the Firebird at a high rate of speed. Ledesma testified that Plyant did not see the accident, but came outside after hearing the ensuing commotion, and that Plyant had unsuccessfully sued Ledesma.
The jury sided 11–1 with Ledesma, finding that a manufacturing defect caused the accident and that Ledesma was not contributorily negligent, and awarding economic damages of \$215,380. The court of *37 appeals affirmed. [***]
A. Admissibility of Ledesmas Expert Testimony. [discussion omitted]
B. Jury Charge
Ford complains that, over its objection, the trial court improperly instructed the jury on the definitions of manufacturing defect and producing cause. The jury affirmatively answered Question No. 1 of the jury charge, which asked:
Was there a manufacturing defect in the 1999 Ford F–350 pickup truck at the time it left Ford’s possession that was a producing cause of the June 5, 1999 incident in question?
A “defect” means a condition of the product that renders it unreasonably dangerous. An “unreasonably dangerous” product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the product’s characteristics.
“Producing cause” means an efficient, exciting, or contributing cause that, in a natural sequence, produces the incident in question. There may be more than one producing cause.
In defining defect, the trial court followed Texas Pattern Jury Charge (PJC) 71.3.[1] As specified in the comment to PJC 71.3, the trial court included in the question the definition of producing cause found in PJC 70.1. Ford objected that both PJC 71.3 and PJC 70.1 were “not accurate under the law” and failed to track this Court’s precedent. We agree. Ledesma may have argued a manufacturing defect to the jury, but the law requires the jury to determine specifically whether he had proven one. The jury here received a legally incorrect charge that omitted an indispensable element: that the product deviated, in its construction or quality, from its specifications or planned output in a manner that rendered it unreasonably dangerous.
1. The Court’s Charge on Manufacturing Defect Failed to Include the Essential Element of a Deviation from Design
The trial court submitted the pattern jury charge’s definition on manufacturing defect. We agree with Ford, however, that the model charge is erroneous, as it does not include the requirement that a manufacturing defect must deviate from its specifications or planned output in a manner that renders the product unreasonably dangerous. We established this standard in American Tobacco Co. v. Grinnell (951 S.W.2d 420, 434 (Tex.1997)) and in three other cases since Grinnell was issued a decade ago, we have recognized, with essentially identical statements, the “deviation from specifications or planned output” requirement [Citations omitted]. This *42 requirement is separate from, and in addition to, the requirements that the product was defective when it left the manufacturer and that the defect was a producing cause of the plaintiff’s injuries. [***]
We note that the current Restatement of Torts essentially follows the same concept of a deviation from the manufacturer’s design by providing that a product “contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product….”[2] The requirement of a deviation from the manufacturer’s specifications or planned output serves the essential purpose of distinguishing a manufacturing defect from a design defect. PJC 71.3 refers to a “manufacturing defect” in the product “at the time it left” the manufacturer. A jury—without further guidance—may view any defect in a product at the time it leaves the manufacturer as satisfying the PJC’s reference to a “manufacturing defect,” rather than making the essential distinction between a manufacturing and design defect. As it stood, the court’s charge merely inquired whether a “condition” of the product rendered it unreasonably dangerous. That “condition” could have been a design defect or a manufacturing defect.
The distinction is material. The danger of allowing a jury to conclude that the defect was or might have been a design defect is that “[a] design defect claim requires proof and a jury finding of a safer alternative design.” [fn] The charge did not make such an inquiry.
Moreover, requiring a deviation from specifications or planned output permits a jury to determine whether a specific defect caused the accident, rather than premising liability on a belief that a product failure, standing alone, is enough to find a product defect. Texas law does not generally recognize a product failure or malfunction, standing alone, as sufficient proof of a product defect. [fn] Instead, we have held that “a specific defect must be identified by competent evidence and other possible causes must be ruled out.” [fn] Our law requires more than finding an undifferentiated “condition” that renders the product unreasonably dangerous, which is all the court’s charge mandated. While a products liability claim does not of course require proof of manufacturer negligence, the deviation from design that caused the injury must be identified. Otherwise, the jury is invited to find liability based on speculation as to the cause of the incident in issue.
Requiring proof of a deviation from manufacturer specifications or planned output also comports with our recognition that expert testimony is generally encouraged if not required to establish a products liability claim. [Citations omitted] If juries were *43 generally free to infer a product defect and injury causation from an accident or product failure alone, without any proof of the specific deviation from design that caused the accident, expert testimony would hardly seem essential. Yet we have repeatedly said otherwise.
For these reasons, we hold that the court’s charge was fundamentally flawed in omitting the requirement that the product deviate, in its construction or quality, from its specifications or planned output in a manner that renders it unreasonably dangerous.
Since Ford preserved error, we turn to whether the charge error is reversible. We hold that it is. “It is fundamental to our system of justice that parties have the right to be judged by a jury properly instructed in the law.” [fn] “There can be no question that it was [the plaintiff’s] burden to obtain affirmative answers to jury questions as to the necessary elements of his cause of action.” [fn] The jury was not asked to decide an essential element of a manufacturing defect claim, namely whether the u-bolt deviated from Ford’s specifications or planned output.
[***] In the pending case, the trial court followed the [Pattern Jury Charges (“PJC”)]. On one occasion we not only approved a PJC issue and instruction for design defect cases, we expressly disapproved of the use of any other instructions in such cases, [fn] prompting one court of appeals to remark that “[o]ur highest court has made it abundantly clear that to deviate from the pattern jury charges in products liability cases is a perilous journey.” Given that our trial courts routinely rely on the Pattern Jury Charges in submitting cases to juries,[3] and we rarely disapprove of these charges, we conclude that the interests of justice would not be served by reversing and rendering judgment in favor of Ford. The more appropriate remedy is to reverse and remand for a new trial.
Note 1. The court remands with a warning about the “perilous journey” of deviating from pattern jury instructions. If the challenges of instructing juries are so high, and the risks of error so seemingly significant that judges describe the adjudication as “perilous,” does it continue to make sense to allocate so much authority to juries? Can you think of alternatives (in terms of decisional allocation, instructional practice, or doctrinal development)?
Note 2. For your own review and understanding, articulate the difference between a manufacturing defect and a design defect, as you understand it so far. Can you come up with an example of what those might look like in a domain that is familiar to you because of a product you have purchased or routinely purchase?
Note 3. What sort of evidence would a plaintiff need to show to prove that a defect caused the accident that caused the plaintiff’s injury? What sort of evidence might a defendant offer if trying to prove that the accident caused the product to look defective?
Check Your Understanding (5-2)
Question 1.Ford Motor Co. v. Ledesma articulates the standard for finding a manufacturing defect: “the product [must] deviate, in its construction or quality, from its specifications or planned output in a manner that renders it unreasonably dangerous.” The plaintiff must provide evidence of deviation from design as distinct from manufacturing. Apply that standard to the following hypothetical.
True or false: A new pour-over coffee brewing device, “WydePour” is created with a wide spout to preserve maximum flavor while brewing coffee. Its shape makes spills slightly more likely. A purchaser of WydePour sustains burns when pouring hot coffee into their mug and would like to sue. If any products liability claim is available on the basis of a product defect, the facts suggest that the plaintiff might be able to prove that there was a manufacturing defect but not a design defect.
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1. COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES—MALPRACTICE, PREMISES & PRODUCTS PJC 71.3 (2d ed.2002).
2. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(a) (1998); see also id. § 1 cmt. a (“A manufacturing defect is a physical departure from a product’s intended design.”).
3. Indeed, Ford’s own brief contends that until this Court corrects the PJC 71.3, “it will continue to be used in every case in Texas in which [a manufacturing] defect is alleged.” | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/05%3A_Products_Liability_Law/5.05%3A_Product_Liability_Based_on_Dangerous_or_Defective_Condition.txt |
(133 Nev. 520)
[***] In 1999, appellant Ford Motor Company introduced the Ford Excursion, the largest and heaviest SUV ever produced and sold in North America. At trial, Ford conceded that it did not perform any physical roof-crush tests on the Excursion. In 2002, Ford ran computer-simulated testing on the Excursion, using modeling that had been developed during the development of the Super Duty pickup trucks [on which the Excursion’s design had been based]. Ford’s internal guidelines required that a vehicle weighing less than 8,500 pounds have a roof strength-to-weight ratio of 1.725 pounds. The strength-to-weight ratio of the Excursion was only 1.25. If the windows *522 were not available to act as added support (e.g., if the windows broke), the strength-to-weight ratio dropped to 0.79. Though the Excursion’s actual weight was 7,730 pounds, its gross vehicle weight rating was 8,600 pounds. Ford did not have internal guidelines for strength-to-weight ratios for vehicles weighing over 8,500 pounds. Therefore, Ford did not issue any recalls on the Excursion, or otherwise advise dealerships or the public that early versions of the Excursion did not meet Ford’s internal guidelines for roof strength.
On December 16, 2009, respondent Teresa Trejo, a resident of Las Vegas, was driving a 2000 Ford Excursion, with a trailer attached, through New Mexico. Her husband Rafael Trejo was seated in the passenger seat. While driving on the highway, Trejo attempted to change lanes to make room for merging traffic. The trailer attached to the Excursion started to fishtail. Trejo swerved, and though the Excursion slowed, it began to roll, somewhere between 1.5 and 2.5 times.
After the rollover sequence, the Excursion came to rest upside down. Trejo managed to remove her seatbelt and exit the Excursion through the driver’s side window. She went to the passenger side of the vehicle, but the roof was so crushed that Trejo was unable to see Rafael. She returned to look through the driver’s side window. Trejo saw Rafael, who could not move but was looking back at her. Trejo later testified that Rafael’s eyes were moving at this time. A couple driving by assisted Trejo in removing Rafael from the vehicle. Emergency services arrived shortly thereafter and confirmed that Rafael had died.
Trejo subsequently filed a complaint against Ford, alleging a design defect in the roof of the Excursion and seeking damages based on twin theories of strict products liability and common law negligence. The case proceeded to trial solely on the strict products liability theory. During trial, Trejo presented expert testimony to support her theory of “hyperflexion”—that the roof of the Excursion crushed, breaking and pinning Rafael’s neck, and causing him to suffocate. Trejo also presented evidence that Ford could have reinforced the roof of the Excursion for an additional \$70 in production costs, adding an additional 70 pounds of weight to the Excursion.
Ford presented evidence supporting its theory of “torso augmentation”—that Rafael died during the first rollover, because the moment the Excursion turned upside down, the weight of Rafael’s body “diving” into the roof caused his neck to break, killing him instantly. *523 Ford also disputed the feasibility of Trejo’s proposed reinforcement to the roof design of the Excursion.
While settling jury instructions, Ford requested the district court to give design defect instructions based on the “risk-utility” test set forth in the Third Restatement.[1] To this end, Ford requested Instruction nos. 21, 22, and 23. The parties also provided the district court with agreed upon alternatives to these instructions, nos. 21A, 22A, and 23A, in the event the court declined to adopt the Third Restatement. Noting that Nevada has not adopted the Third Restatement approach to claims of design defect, the district court declined to give Ford’s requested instructions. The district court instead gave the parties their agreed-upon alternatives which were stock instructions and reflected the current state of the law.
Ultimately, the jury returned a special verdict in favor of Trejo, answering in the affirmative the following two questions: (1) whether the 2000 Ford Excursion’s roof was defective in design, and, if so, (2) whether the 2000 Ford Excursion’s roof design defect was a proximate cause of Rafael Trejo’s death. The district court entered judgment on the jury’s \$4.5 million damages award and granted in part and denied in part Ford’s subsequent motion to retax costs. Ford filed a motion for judgment as a matter of law or for a new trial, which the district court denied. Ford now appeals.
To determine whether a product is defective in its design under strict tort liability, Nevada has long used the consumer-expectation test. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413(1970). Under the consumer expectation test, a plaintiff must demonstrate that a product “failed to perform in the manner reasonably to be expected in light of its nature and intended function and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.” [c]
In 1998, the drafters of the Third Restatement proposed the risk-utility test for strict product liability design defect claims. Under this test, a product “is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design … and the omission of the alternative design renders the product not reasonably safe.” *524 Restatement (Third) of Torts: Prods. Liab. § 2(b) (Am. Law Inst. 1998). Thus, under the risk-utility test, in addition to proving elements of negligence, plaintiffs also bear the new burden of proving a “reasonable alternative design.” Id.
[***] The risk-utility test, especially its requirement of proof of a reasonable alternative design, would prove fundamentally unfair to Nevada plaintiffs. Instead of being allowed to bolster their case with evidence of an alternative design after the discovery process, a plaintiff would face the barrier of establishing a reasonable alternative design from the outset, even in those cases where no reasonable design may exist, or where the defendant is in complete control of the necessary information related to product design. Because we further conclude that Trejo presented sufficient evidence of design defect under the consumer-expectation test and causation, we affirm the judgment of the district court. [c]
In 1966, this court examined a case in which Leo Dolinski purchased a bottle of Squirt soda from a vending machine, took a drink, and discovered the remains of a decomposing mouse. Shoshone Coca–Cola Bottling Co. v. Dolinski, 82 Nev. 439, 441 (1966). Dolinski presented his case to the jury solely on the theory of strict product liability, and the jury awarded Dolinski \$2,500 in damages. In affirming the jury’s verdict, this court determined that when a manufacturer has placed a dangerous or defective product into the stream of commerce, sound public policy requires the imposition of strict liability, even in those situations where “the seller has exercised all reasonable care, and the user has not entered into a contractual relation with him.” [***]
Nonetheless, this court cautioned that while a manufacturer and distributor of a bottled beverage may be strictly liable without a showing of negligence or privity, the adoption of strict tort liability as a theory of recovery “does not mean that the plaintiff is relieved of the burden of proving a case.” Id. at 443. Rather, this court noted that a plaintiff was required to demonstrate that (1) the product at issue was defective, (2) the defect existed at the time the product left the manufacturer, and (3) the defect caused the plaintiff’s injury. [c]
Four years later in Ginnis, this court extended the doctrine of strict tort liability “to the design and manufacture of all types of products.” 86 Nev. at 413. With respect to proving whether a product is defective, this court also adopted the consumer-expectation test, which is set forth in Section 402A of the Restatement (Second) of Torts (Am. Law Inst. 1965). Id. at 414. In adopting the consumer-expectation test in Ginnis, this court explained that
[a]lthough the definitions of the term “defect” in the context of products liability law use varying language, all of them rest upon the common premise that those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.
Id. at 413 [c]. Further, defective products are “more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.” [c]
This court has subsequently recognized three categories of strict tort liability claims: manufacturing defects, design defects, and the failure to warn. [cc] In the realm of manufacturing and design defects, this court has consistently applied the consumer-expectation test to determine liability. [cc]
In the context of proving that a product was defective under the consumer-expectation test, this court has concluded that “[a]lternative design is one factor for the jury to consider when evaluating *526 whether a product is unreasonably dangerous.” [c] Therefore, a plaintiff may choose to support their case with evidence “that a safer alternative design was feasible at the time of manufacture.” [c] However, any alternative design presented must be commercially feasible. [***] In addition to evidence of alternative designs, evidence of other accidents involving analogous products, post-manufacture design changes, and post-manufacture industry standards will support a strict product liability claim. [c]
Ford urges this court to depart from this well-settled line of jurisprudence and adopt the risk-utility test for design defects set forth in the Third Restatement. Under the risk-utility test, a product
is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.
Restatement (Third) of Torts: Prods. Liab. § 2(b) (Am. Law Inst. 1998). The drafters of the Third Restatement provide a number of factors relevant to analyzing whether there was a reasonable alternative design and whether the omission of the alternative design renders a product not reasonably safe. Some of the factors for consideration include the magnitude and probability of foreseeable risks of harm; the instructions and warnings included with the product; the nature and strength of consumer expectations regarding the product, including expectations arising from product advertising and marketing; the advantages and disadvantages of product function arising from the alternative design, as well as the effects of the alternative design on production costs; and the effects of the alternative design on product longevity, maintenance, repair, and esthetics. Id. § 2 cmt. f.
Some analysts of the risk-utility approach have posited that the test is better suited to analyzing cases involving complicated or technical design. These proponents of the risk-utility approach also contend that the average consumer does not have ascertainable “expectations” about the performance of a complex product, such as a car, in unfamiliar circumstances. See Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L. Rev. 1700, 1716 (2003). *527 Accordingly, adopting courts have observed that when faced with a complicated or technical design, the risk-utility analysis “provides objective factors for a trier of fact to analyze when presented with a challenge to a manufacturer’s design.” Branham v. Ford Motor Co., 390 S.C. 203 (2010).
Based on these perceived advantages, a number of jurisdictions have exclusively adopted the risk-utility analysis in design defect cases through either caselaw or statute. [Collecting cases from Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Montana and Texas)] Still others have adopted a hybrid approach, utilizing the risk-utility approach only in complex design situations. [Citing cases from California and Illinois]
Ford urges this court to join those jurisdictions that have concluded that the risk-utility test better allows a jury to analyze complex cases in which consumer expectations are less clear. Ford also argues that the risk-utility test provides a lay jury with a concrete framework in which to analyze complex or technical products. Despite Ford’s arguments, we find that the proposed advantages of the risk-utility test over the consumer-expectations test are largely overstated. Further, as discussed below, the adoption of negligence standards into strict products liability, as well as the affirmative requirement that plaintiffs provide proof of a reasonable alternative design, stands contrary to the public policy supporting Nevada’s long-standing use of the consumer-expectation test.
With respect to the clarity of consumer expectations, we conclude that even in cases of complex or technical products, a lay jury is sufficiently equipped to determine whether a product performs in a manner to be reasonably expected under certain circumstances, pursuant to the consumer-expectation test. [***]
With respect to the instant case, Ford argues that it is extremely unlikely that the Trejos bought their Excursion with any specific expectation regarding the strength-to-weight ratio of the vehicle roof. Nonetheless, Trejo presented sufficient evidence for the jury to conclude that the level of protection actually provided by the roof in a rollover accident was less than would be expected by a reasonable consumer, indicating that in this case, the distinction between the risk-utility and consumer expectation tests is without practical difference.
Further, to the extent scientific or technical evidence is presented, we note that juries are often requested to digest unfamiliar technical material. [***] “[J]uries are always called upon to make decisions based upon complex facts in many different kinds of litigation. … The problems presented in products liability jury trials would appear no more insurmountable than similar problems in other areas of the law.” [cc] Ford presents no evidence that the jury was incapable of digesting the expert testimony and evidence admitted in this case.
[***] In addition to our determination that the proposed benefits of the risk-utility test are overstated, the risk-utility approach also presents several tangible disadvantages. When we first adopted the theory of strict liability in Shoshone, this court reasoned that when a seller has advertised a product, and invited and solicited its use, the seller should not be permitted to avoid the consequences of a “disaster” by arguing that he used all reasonable care. 82 Nev. at 442. Accordingly, the consumer-expectation test focuses on the reasonable expectations of a consumer regarding the use and performance of a product. Rather than focus on the product itself, the risk-utility test subverts this analysis, focusing on the “foreseeable risks of harm” apparent to a manufacturer when adopting a design. This inserts a negligence standard into an area of law where this court has intentionally departed from traditional negligence analysis. SeeAubin, 177 So.3d at 506; [c] (noting that the risk-utility test unnecessarily “blurs the distinction between strict products liability claims and negligence claims”). By focusing on the conduct of the manufacturer in designing and developing, rather than the product itself, the risk-utility test is in direct conflict with the reasoning of this court in Shoshone and its progeny.
Further, as noted by the Kansas Supreme Court, the risk-utility test
is impoverished especially insofar as the [drafters of the Third Restatement] ruled out consumer expectations as an independent test. They thereby ignored the centrality of what we all know as people …: the centrality of product portrayals and images and their role in creating consumer motives to purchase or encounter products.
[cc]. Given the unique position of manufacturers, we agree that by advocating for the negligence-based risk-utility approach, “the Third Restatement fails to consider the crucial link *530 between a manufacturer establishing the reasonable expectations of a product that in turn cause consumers to demand that product.” Aubin at 508. [***]
The jury in this case was properly instructed on the consumer-expectation test. Further, the record demonstrates that Trejo presented sufficient evidence to demonstrate that the roof of the Ford Excursion failed to perform in a manner reasonably expected in light of its nature and intended function and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community. Trejo also presented evidence sufficient to demonstrate that Rafael Trejo’s death was caused by this defect. Therefore, we affirm the judgment on the jury verdict, as well as the post-judgment order awarding costs.
PICKERING, J., dissenting:
The jury instructions the district court gave and the majority affirms were inadequate. They told the jury to decide this case based solely on “consumer expectations,” that is, on how the jurors thought an “ordinary user having the ordinary knowledge available in the community” would have expected the Excursion’s roof to function in a highway-speed rollover. The district court refused Ford’s request that the court also instruct the jury on whether, based on the expert testimony they heard, a feasible alternative design existed *533 for the roof that would have protected Trejo, who was in the front passenger seat, from being crushed in the rollover.
Neither Nevada law, nor the law nationally, supports deciding a design defect case such as this based solely on consumer expectations. The failure to instruct the jury on alternative design left the jurors with no specific guidance on the law by which to decide the case. While I would not pursue an alternative design or “risk-utility” analysis to the exclusion of consumer expectations—a position the majority erroneously attributes to the Restatement (Third) of Torts: Products Liability (Am. Law Inst. 1998)—the jury can and should be instructed on alternative design in addition to consumer expectations where, as here, evidence has been presented to support it. As this instructional error clouds the verdict’s reliability, I would reverse and remand for a new trial. I therefore dissent.
Nevada imposes strict liability on manufacturers and distributors who place in the hands of users a product that is “unreasonably dangerous.” [c] As the majority notes, there are three principal types of products liability claims: manufacturing defect; design defect; and inadequate warnings. In Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413 (1970), we endorsed what has come to be known as the consumer expectation test as an appropriate means of assessing “unreasonable dangerousness.” Under this test, the plaintiff must demonstrate that the product “fail[ed] to perform in the manner reasonably to be expected in light of [its] nature and intended function” and “was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.” [***] As part of, or in addition to, the consumer expectation test, Nevada has endorsed using the existence of a safer alternative design to prove that a design defect or lack of warnings made a product unreasonably dangerous. McCourt v. J.C. Penney Co., 103 Nev. 101, 102, 104 (1987) (citing Ginnis and reversing because the district court erred in refusing, in a design defect case, to admit evidence of feasible alternative design: “Alternative design is one factor for the jury to consider when evaluating whether a product is unreasonably dangerous”); see also*534 [***] Robinson v. G.G.C., Inc., 107 Nev. 135, 138 (1991) (“a manufacturer may be liable for the failure to provide a safety device if the inclusion of the device is commercially feasible, will not affect product efficiency, and is within the state of the art at the time the product was placed in the stream of commerce”); [c]. Though not denominated as such by our case law, this balancing of a possible safer alternative design against its commercial feasibility is known as the “risk-utility” approach to determining product defect. See 1 David G. Owen & Mary J. Davis, Owen & Davis on Products Liability § 8:7 (4th ed. 2014). A risk-utility analysis determines “[w]hether a particular design danger is ‘unreasonable’ (that is, ‘defective’)” by balancing “ ‘the probability and seriousness of harm against the costs of taking precautions. Relevant factors to be considered include the availability of alternative designs, the cost and feasibility of adopting alternative designs, and the frequency or infrequency of injury resulting from the design.’ ” Id.
At trial, both sides presented evidence regarding alternative roof designs and their commercial feasibility, as McCourt and its progeny allow. Trejo affirmatively alleged that a safer alternative design was available and presented expert testimony that the design was commercially reasonable. Ford presented contradictory evidence, to the effect that Trejo’s expert’s proposed design was not, in fact, safer and, further, created issues of commercial unreasonableness.
Based on this admitted evidence, Ford sought to have the jury instructed on alternative design by adding the italicized language to the stock product-defect jury instruction:
[Proposed] Instruction No. 21
In order to establish a claim of strict liability for a defendant product, the plaintiff must prove the following elements by a preponderance of the evidence:
1. That Ford Motor Company was the manufacturer of the 2000 Ford Excursion;
2. That the 2000 Ford Excursion’s roof structure was defectively designed;
3. That the defect existed when the 2000 Ford Excursion left Ford Motor Company’s possession;
*535 4. That the 2000 Ford Excursion was used in a manner which was reasonably foreseeable by Ford Motor Company;
5. There existed a reasonable alternative design; and
6. That the defect was a proximate cause of the injury to Rafael Trejo.
(emphasis added to show proposed addition to Nevada Jury InstructionsCivil § 7PL.4 (2011)).
Ford also offered [Proposed] Instruction No. 22, as follows:
A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe.
Although these requested instructions accurately stated Nevada law under McCourt, the district court rejected them. It also rejected every other jury instruction Ford proposed that touched on reasonable alternate design.[2] As a result, the jury received no instructions on how to apply the evidence regarding a safer alternative design and its commercial feasibility to determine whether the Excursion was unreasonably dangerous due to a design defect.
The court gave only stock product liability instructions to the jury. Thus, the district court gave as Instruction No. 19 what Ford had tendered as [Proposed] Instruction No. 21, minus the italicized language about reasonable alternative design, reprintedsupra at 3–4. It also gave, as the only other guidance on how the jury should decide design defect, the following stock instructions:
Instruction No. 20
A product is defective in its design if, as a result of its design, the product is unreasonably dangerous.
*536 Instruction No. 21
A product is unreasonably dangerous if it failed to perform in the manner reasonably to be expected in light of its nature and intended function, and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.
See Nevada Jury Instructions—Civil § 7PL.7 (2011). While these instructions are accurate, they are incomplete and misleading as a result. “[C]onsumers comprehend that automobiles are not completely crashproof, but they have no meaningful expectations as to the extent to which a vehicle may be compromised in the event of a collision or rollover at substantial speeds.” 1 Owen & Davis, supra, at § 8:5. The jury should have been instructed on all of the law pertinent to the evidence presented, including alternative design.
The instructions the jury received failed to give them any guidance on how to utilize the ample expert evidence presented over the course of the two-week trial regarding Trejo’s proffered alternative design and Ford’s arguments that the alternative design was proven neither to be safer nor commercially feasible. SeeWoosley v. State Farm Ins. Co., 117 Nev. 182, 188 (2001) (providing that it is error for the court to refuse to give a jury “instruction when the law applies to the facts of the case”). Indeed, with the instructions given to the jury, such evidence would not even factor into their decision as to whether the Excursion was unreasonably dangerous as designed.
The refusal to give an instruction regarding the evidence presented contravenes this court’s long-held tenet that “a party is entitled to have the jury instructed on all of [its] case theories that are supported by the evidence.” [cc] While the majority recognizes that Nevada’s jurisprudence allows for the presentation of risk-utility evidence in products liability cases (albeit as part of the consumer-expectation test), it disconcertingly concludes that there was no error in the district court’s failure to instruct the jury regarding alternative design or risk-utility in this case.[3] With this holding, it is unclear whether the majority intends to *537 place limits on the use of risk-utility evidence in products liability cases[4] or intends to relax the requirement that district courts must instruct juries based on the evidence presented at trial, but what is clear is that this holding diverges from current Nevada law. The failure to give the jury instructions that are supported by both this court’s prior jurisprudence and the evidence and pleadings presented by the parties constitutes reversible error because, had the jury been instructed on the risk-utility test, the outcome of the case may have been different. Id.; [***].
This court encountered a similar jury instruction issue in Lewis v. Sea Ray Boats, Inc., 119 Nev. 100 (2003). In that case involving an allegation of an inadequate warning on a boat’s generator, a party requested an instruction that would define “adequate warning” for the jury. Id. at 104–05. The court refused to give the instruction and instead gave more generalized instructions.[5] Id. at 105. On appeal, this court held that the general instructions were insufficient to guide the jury both because jurors had “to search their imaginations to test the adequacy of the warnings” and because, due to the expert witness testimony given, the jurors were “entitled to more specific guidance” on the law governing the case. Id. at 108.
The same reasoning should be applied here: the more specific instructions provided greater guidance to the jury and the district court’s failure to give those more specific instructions warrants a reversal of the jury verdict and a remand for a new trial. [***]
Based on the foregoing, I would reverse and remand this matter for a new trial.
The majority’s approval of jury instructions that focus on consumer expectations to the exclusion of risk-utility considerations not only contravenes preexisting Nevada law, it also makes Nevada an outlier, as only a small minority of jurisdictions rely solely on consumer expectations in design defect cases. See Twerski & Henderson, Manufacturers’ Liability for Defective Product Designs, 74 Brook. L. Rev. at 1104–05 (stating that only Kansas, Nebraska, Oklahoma, Wisconsin, and possibly Maryland solely apply a consumer-expectation test to design defect claims); but see Wis. Stat. Ann. § 895.047(1)(a) (West 2015) (by statute adopted in 2011, Wisconsin follows a risk-utility approach in design defect cases). En route to this holding, the majority also mischaracterizes the risk-utility test as presented by the Restatement (Third) and how it is applied.
Like Nevada (at least until today), most jurisdictions recognize that both consumer expectations and feasible alternative design or risk-utility evidence have legitimate roles to play in design defect cases. Feasible alternative design evidence plays a predominant role in design defect, as opposed to manufacturing defect, cases because of the difference in the two types of claims: “Whereas a manufacturing defect consists of a product unit’s failure to meet the manufacturer’s design specifications, a product asserted to have a defective design meets the manufacturer’s design specifications but raises the question whether the specifications themselves create unreasonable risk.” Restatement (Third) of Torts: Products Liability § 2 cmt. d.
Analyzing the manufacturer’s design choice cannot be done in a void, leading courts to strike a balance between the consumer-expectation test and risk-utility test. California has created a test *539 wherein consumer expectations are reserved for those cases where “everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design.” [c]; see also Twerski & Henderson, Manufacturers’ Liability for Defective Product Designs, 74 Brook. L. Rev. at 1098–1101 (listing ten other jurisdictions that use the same approach as California). Thus, the jury [in those jurisdictions] is exclusively instructed on risk-utility only when the evidence presented would not support a jury verdict based on consumer expectations. [c] Illinois’ approach is to include consumer expectations as a factor to consider under the risk-utility test when the evidence presented at trial implicates both tests, with the alternative design criteria controlling in design defect cases. [c]
Even those jurisdictions that appear to exclusively adopt a risk-utility test for design defect cases nevertheless recognize consumer expectations as a factor for consideration. Compare Gen. Motors Corp. v. Jernigan, 883 So.2d 646, 662 (Ala. 2003) (holding that a safer alternative design is required in design defect cases raised under Alabama’s Extended Manufacturer’s Liability Doctrine and cited by the majority for the proposition that Alabama exclusively uses the risk-utility test), with Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 70 (Ala. 2007) (providing that a claim under the same doctrine can be won by showing the product failed to meet consumer expectations). See also Banks v. ICI Americas, Inc., 264 Ga. 732 (1994) (listing factors relevant to a risk-utility analysis, which include “the user’s knowledge of the product … as well as common knowledge and the expectation of danger”); Wright v. Brooke Grp. Ltd., 652 N.W.2d 159, 170 (Iowa 2002) (“Although consumer expectations are not the sole focus in evaluating the defectiveness of a product under the [Third] Products Restatement, consumer expectations remain relevant in design defect cases.”); Nichols v. Union Underwear Co., 602 S.W.2d 429, 432–33 (Ky. 1980) (holding that consumer expectations is a factor to be considered in a design defect case, along with other risk-utility factors); Williams v. Bennett, 921 So.2d 1269, 1275 (Miss. 2006) (quoting Clark v. Brass Eagle, Inc., 866 So.2d 456, 460 (Miss. 2004), with approval and Clark notes that Mississippi’s products liability law is a hybrid of the consumer-expectation test and the risk-utility test); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335–37 (Tex. 1998) (refusing to adopt a new rule of law regarding design defect and recognizing that the risk-utility test includes consideration of the consumer’s expectations of the product). The Restatement (Third) also provides a comprehensive analysis of this issue, concluding that the risk-utility analysis should predominate in design defect cases but *540 still include consideration of consumers’ expectations. Restatement (Third) of Torts: Products Liability § 2 & cmt. f.
The varied foregoing approaches to incorporating both the consumer-expectations test and the risk-utility test into design defect cases demonstrate the difficulty presented by this issue. The fact that the task is difficult or that there may be more than one possible solution, however, does not justify the majority’s decision to exclude all references to risk-utility evidence in the instructions given to the jury.
The majority gives a series of reasons for rejecting the risk-utility approach offered by the Restatement (Third). On the surface, the concerns seem legitimate but, at their core, they rest on a fundamental misunderstanding of what the Restatement (Third) actually proposes in design defect cases.
First, the majority asserts that by requiring evidence of a feasible alternative design prior to the discovery process, the risk-utility test places a “prohibitive barrier” to a plaintiff bringing a case, especially since the defendant controls the information related to product design. [c] But the Restatement’s feasible alternative design provision relates to proof at trial, after discovery, and specifically “assume[s] that the plaintiff will have the opportunity to conduct reasonable discovery so as to ascertain whether an alternative design is practical.” Restatement (Third) of Torts: Products Liability § 2 cmt. f. Thus, the feasible alternative design requirement is not a mandatory prerequisite to filing a design defect claim under the Restatement (Third).
Second, the majority criticizes the Restatement (Third) as failing to recognize that proof of a feasible alternative design should not be required in every design defect case, especially those where no feasible alternative design exists. [c] But again, the Restatement (Third) does not propose the rule the majority criticizes. On the contrary, the Restatement makes specific provision for design defect claims that do not require feasible alternative design evidence. For example, if the product is manifestly unreasonable, or it has little social use and a high degree of danger, a court may declare it to be defective in design without evidence of a feasible alternative design. See Restatement (Third) of Torts: Products Liability § 2 cmt. e (using the example of a child’s pellet gun that uses pellets hard enough to cause injury).
Going beyond the comments to section 2, section 3 of the Restatement (Third) provides for imposition of strict liability without regard to alternative design in cases involving inexplicable product malfunction. Restatement (Third) of Torts: Products Liability § 3 *541 [***] This section comports with Nevada product liability law. Indeed, the Reporter’s Note to section 3, cmt. b, of the Restatement (Third) quotes with approval this court’s holding in Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 448 (1984), “that proof of an unexpected, dangerous malfunction may suffice to establish a prima facie case for the plaintiff of the existence of a product defect.” [***]
In sum, the majority’s suggestion that the Restatement (Third) requires proof of alternative design in all design defect cases is simply incorrect. There are numerous instances wherein a plaintiff could succeed on a design defect claim without providing evidence of a feasible alternative design.
The error in the instructions requires reversal and remand for a new trial. By affirming the instructions the jury was given, the majority has moved Nevada from the mainstream—where courts and commentators alike are striving to strike the proper balance between risk-utility and consumer-expectations analyses in design defect cases—to a minority of three or four jurisdictions that rely solely on consumer expectations. While I do not necessarily advocate for the Restatement (Third) over the approaches variously taken by California or Illinois, Nevada should at a minimum adhere to its prior case law recognizing that feasible alternative design has a legitimate and important role to play in design defect cases. As the complete elimination of feasible alternative design from the design-defect calculus is unsound, I respectfully dissent.
Note 1.The Role of the Jury. Trejo reflects the extensive process that can take place when the parties seek to finalize jury instructions before a trial. They may fight about the language of a single instruction or dispute the legal accuracy of one or more instructions as they are “settling instructions,” as the court puts it. In general, jury decision making is like a “black box” in that we do not know what led to jurors’ decisions or how they arrived at particular numbers, other than by comparing final verdicts with what parties requested or argued. However, in certain cases, the parties may propose use of a “special verdict” form in which the jury is asked to answer a number of questions or to provide answers regarding elements, claims or amounts of damages. In Trejo, the jury was asked to answer (1) whether the 2000 Ford Excursion’s roof was defective in design, and, if so, (2) whether the 2000 Ford Excursion’s roof design defect was a proximate cause of Rafael Trejo’s death.
Judges are very reluctant to set aside a jury verdict once it has been issued. To do so usually requires that it be “against the weight of the evidence.” With a general verdict—one in which a jury is asked only whether a party is liable or not—the parties may struggle on appeal since there is little to which to attach criticism of or praise for the jury’s verdict. Unlike judicial opinions, which contain precedents and other authorities as well as rationales and reasoning to critique, jury verdicts do not reflect the juries’ analysis in a manner that permits subsequent parties to review jury decision making. The black-box nature of jury review shields their work and consequently places additional pressure on the wording and nature of the jury instructions since those are easier to attack as erroneous on appeal. Appellate review of the accuracy and propriety of jury instructions is a question of law subject to the de novo standard of review. Judges do have considerably more latitude to find errors exist with respect to jury instructions versus their much more limited ability to disturb jury verdicts. However, even if judges find errors in the jury instructions, “harmless errors” will not provide grounds for reversal. If the instructions were erroneous but the court believes the error did not taint the final verdict, the errors will be considered “harmless” and the court will not disturb the jury verdict merely to correct them. Consider why you might wish to use a general verdict versus a special verdict if you were involved in litigation. What factors might shape your thinking?
Fewer and fewer cases make it all the way to a jury in civil litigation in our era; the institution has been referred to as “the vanishing jury” and “the disappearing jury,” for instance. This change is partly a function of changes to motion practice and partly reflective of the rise of administrative mechanisms for resolving claims in a fashion that permits parties to end disputes more inexpensively and quickly. In addition, insurance companies played an increasingly larger role in tort law over the course of the 20th century, which meant both that efficiency drove decision making and individual claims could be more easily handled at scale. Yet many of the cases you read feature a fight over the jury, or jury instructions. Students learning the law read many cases in which the jury plays a prominent role. Is the fixation on the jury a relic? Or is it purely symbolic, given the dropping rates at which trials are statistically likely to feature them? Lawyers at the start of significant litigation often start by consulting the jury instructions relevant to the issue and jurisdiction of the dispute as a means of assessing and framing the case. One theory of the jury’s role is that it scares both parties into settling more readily since juries are thought to be more unpredictable. If the parties do proceed to a full jury trial, it will prove to be critical that the case’s issues have been framed in terms of jury instructions from the very start. In some sense, then, anticipating the jury’s very possibility continues to exert an impact on the shape and operation of the law, regardless of the lower number of jury trials. Another theory of the jury function is that it humanizes and democratizes the law, however, and that its role remains critical in our legal regime whatever the case count. If tort law continues to require determinations of what is “reasonable” under the circumstances, doesn’t it still need the jury? What alternatives would make the most sense to you? What costs and benefits arise with any of those you may be considering?
Note 2. State of the Art Defense. The court mentions that Ford requested a “state of the art defense” (and was refused). This is an affirmative defense recognized judicially or legislatively in a number of jurisdictions which permits defendant manufacturers to assert that they behaved according to the best available knowledge at the time. In other words, their theory of non-liability is that they could not have known about the hazard when they made or sold their product because the state of the art at that time had not yet discovered particular risks. As you can see, there may be overlap between the evidence required to show the feasibility of a reasonable alternative design and the evidence required to prove up the state of the art defense. Who should be taxed with offering this kind of evidence, in your view, the plaintiff or the defendant?
Note 3. In the unabridged version of Ford v. Trejo, the court cites to a Wisconsin case that held that the consumer expectations test “does not inevitably require any degree of scientific understanding about the product itself. Rather, it requires understanding of how safely the ordinary consumer would expect the product to serve its intended purpose.” (p. *528 citing Green v. Smith & Nephew AHP, Inc., 245 Wis.2d 772 (2001)). Ford argued that it was “extremely unlikely that the Trejos bought their Excursion with any specific expectation regarding the strength-to-weight ratio of the vehicle roof.” Ultimately, the court disregard Ford’s argument and ruled that Trejo had presented sufficient evidence for the jury to conclude that the level of protection actually provided by the roof in a rollover accident was less than would be expected by a reasonable consumer. The court stated that, in this case, the distinction between the risk-utility and consumer expectation tests was immaterial. But was Ford’s argument the right one, in any event? Do you think that the consumer expectations test asks jurors to determine whether a reasonable consumer would investigate and form expectations about the strength-to-weight ratios of vehicles? What would your questions look like if you were considering purchase of an expensive and complex consumer product such as a vehicle? What do you assume about how you make such decisions versus how you imagine others might? Can you imagine alternative framings for the consumer expectations test in this case?
Expand On Your Understanding – Socratic Script: Ford Motor Company v. Trejo
Question 1. What is the holding of this case?
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Question 2. What’s the difference between the majority and dissenting opinions’ views of the proper use of alternative design evidence?
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Question 3. What is California’s test, according to Ford v. Trejo? Try to put it in your own words for your answer rather than quoting directly from the case. Articulating the test for yourself will then allow you to use the answer, which quotes directly from the case, to test your active (rather than merely passive) understanding.
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Question 4. What do you think are the effects of the California test?
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Question 5. The court refers to the distinction between focusing on the conduct of the manufacturer in designing and developing the product, rather than the product itself, and states that focusing on the manufacturer’s conduct is in “direct conflict with the reasoning of this court in Shoshone and its progeny.” What is the significance of this distinction between conduct and product? What is the conflict to which the court alludes concerning Shoshone (which was the case about the decomposing mouse in the bottle of Squirt mentioned in the majority opinion)?
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Question 6. In its discussion of Shoshone, the court reaffirms its commitment to the application of strict liability, even when there is no evidence of fault and the injured party is not in a contract with the defendant, so long as “a manufacturer has placed a dangerous or defective product into the stream of commerce.” Applying the logic of Thomas v. Winchester, how would you formulate a rationale for the court’s statement?
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Question 7. How significant do you think it is that the vehicle did not meet Ford’s own internal guidelines for roof strength? Can you think of reasons why it should or should not matter to the ultimate determination?
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(2014 WL 12589646)(not reported)
This is a products liability action arising from the death of Amy Celeste Shinedling in a house fire on January 5, 2011. Ms. Shinedling’s surviving husband, Kenneth Shinedling, brought this action on behalf of himself and as Guardian ad Litem for their surviving children (collectively, “Plaintiffs”) on December 15, 2011. Plaintiffs’ remaining claims assert strict products liability and negligence against Defendant Sunbeam Products, Inc., (“Sunbeam”), the manufacturer of the portable space heater that allegedly caused the house fire. [c] Plaintiffs allege that the heater caused the fire because it was defectively designed, contained a manufacturing defect, and failed to include adequate warnings. Before the Court is Sunbeam’s motion for partial summary judgment as to Plaintiffs’ manufacturing defect and failure-to-warn bases for their strict products liability and negligence claims. [fn]
The product at issue is the Holmes Quartz Heater, Model HQH307, manufactured in 2006 (the “Heater”). [fn] The Heater is a type of portable electric heater known as a radiant quartz heater. As opposed to ceramic or convection-type heaters, which blow hot air to heat an entire space, radiant heaters radiate infrared heat that directly heats solid objects in its path. The Heater is sold with an instructional leaflet with a number of warnings, including:
“When using electrical appliances, basic safety precautions should always be followed to reduce the risk of fire, electric shock, and injury to persons, including the following: … 3. This heater is hot when in use. To avoid burns, do not let bare skin touch hot surfaces. If provided, use handles when moving this heater. Keep combustible materials, such as furniture, pillows, bedding, paper, clothes, and curtains at least 3 feet (0.9 m) from the front of the heater and keep them away from the sides and rear.”
A similar warning regarding keeping materials 3 feet away was displayed on the Heater’s power cord and on the body of the Heater itself. The instructional leaflet provided with the Heater also describes the Heater’s “Auto Safety Shut-Off” feature. The description states:
“The heater is equipped with a patented, technologically-advanced safety system that requires the user to reset the heater if there is a potential overheat situation. When a potential overheat temperature is reached, the system will automatically shut the heater off.”
*2 The night of January 4, 2011, Mr. and Mrs. Shinedling went to sleep with the Heater and another space heater in operation in the master bedroom of their home. At the time Mr. Shinedling went to sleep there were no clothes or combustible materials within 3 feet of the Heater. In the early morning hours, Mr. Shinedling awoke to the sound of a smoke alarm. He got up and saw clothes in front of the Heater which had caught fire, along with the Heater itself. His wife told him to get the children out of the house, which he did, and then he called 911. Mr. Shinedling attempted to reenter the home to locate his wife but the fire had grown too intense. Mrs. Shinedling died in the fire.
[***] *3 Under California law, “ ‘[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.’ ” [c]. [***] Sunbeam’s motion for partial summary judgment is limited to Plaintiffs’ manufacturing defect and warning defect theories only. The Court will address these theories in turn.
a. Manufacturing Defect
[***] (“[A] product has a manufacturing defect if the product as manufactured does not conform to the manufacturer’s design.”). “[T]o establish liability, it is not enough that the action happened, nor may liability inferences favorable to plaintiff be drawn from that fact. The plaintiff must prove by competent evidence that the product was [defective in manufacture].” [c]
Plaintiffs have not introduced sufficient evidence to create a genuine dispute that the Heater in question contained a manufacturing defect. Plaintiffs concede that they have no direct evidence of any manufacturing defect. Instead, Plaintiffs rely on Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 260 (1964), and Elmore v. American Motors Corp., 70 Cal. 2d 578 (1969), to argue that circumstantial evidence may suffice to prove the existence of a manufacturing defect where the product was destroyed in the incident at issue. The circumstantial evidence that, according to Plaintiffs, creates a genuine dispute that the Heater had a manufacturing defect includes: there is no evidence that the Heater was modified after it left Sunbeam’s possession; “there are historical reports of the bottom of this type of heater burning and melting and starting fires, as verified by Sunbeam”; Mr. Shinedling testified that he saw the Heater itself on fire in addition to the clothes surrounding the Heater; a failure of an internal connection could potentially start a fire; such a failure could have produced a fire burning at the same temperature as the fire at issue; the carpet underneath the Heater was burned; and the point of origin of the fire was determined to be at or near the Heater’s location.
Plaintiffs’ circumstantial evidence is too speculative to proceed before a jury on the issue of whether the Heater contained a manufacturing defect. The cases Plaintiffs rely on for the proposition that the existence of a defect can be established by circumstantial evidence all involved at least some evidence from which an inference of a defect could be drawn. Elmore, for instance, was a products liability action arising from a car accident that occurred because a part detached from the bottom of the plaintiff’s car and dragged on the cement, causing her to lose control and crash. [c] The plaintiff’s evidence included expert testimony that the vehicle’s drive shaft detached prior to the accident, the cause of the drive shaft detaching was loose fastenings or metal failure, and a drive shaft would not detach because of normal wear and tear, the forces of the subsequent accident, or “anything the driver did.” [c] The expert testified that it was his opinion that the drive shaft connection was defective. In contrast, Plaintiffs’ own expert on the issue of manufacturing defect cannot conclude that the Heater contained a manufacturing defect. Plaintiffs’ expert merely states that he could not rule out the possibility of a manufacturing defect. (“[T]he possibility that extreme heat was generated at that connection leading to ignition of the heater from the inside could be neither confirmed nor refuted.”).) Further, Plaintiffs concede that their “origin and cause” expert, as well as Sunbeam’s experts, all agree that “it is more likely than not that the cause of the fire was the ignition of the clothing by the heater.” Sunbeam is entitled to partial summary judgment as to the manufacturing defect basis for Plaintiffs’ strict liability claim.[6]
b. Failure to Warn
*4 To prevail on a failure-to-warn theory, the plaintiff must show that the defendant “did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.” [c] (“[A] product, although faultlessly made, may nevertheless be deemed ‘defective’ under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.”) California courts have identified several factors pertinent to determining the adequacy of warnings, including the risk of harm and magnitude of potential harm the product presents, the normal expectations of the consumer as to how the product will perform, how complicated it is to use the product, and the feasibility and beneficial effect of a warning. [c] The adequacy of the warnings provided with a product is generally a question of fact for the jury. [c]
Genuine disputed issues regarding the adequacy of the Heater’s warnings preclude partial summary judgment on Plaintiffs’ failure-to-warn theory. These issues include, among others, whether the warnings were inadequate because they failed to advise the user that the Heater should never be left on while sleeping. A bulletin published by the U.S. Consumer Products Safety Commission regarding portable electric heater fires between 2008 and 2010 included safety warnings which, in addition to warning consumers to keep materials at least 3 feet away from heaters, also warned consumers “[n]ever leave the heater operating while unattended, or while you are sleeping.”
A triable issue also exists as to Plaintiffs’ contention that additional warnings should have been given regarding the Heater’s Auto Safety Shut-Off feature. Sunbeam argues that this feature was intended to address potential overheat temperatures occurring inside the Heater only. A reasonable jury, however, could find that, in light of the representation in the Heater leaflet that “[w]hen a potential overheat temperature is reached, the system will automatically shut the heater off” and the risk of danger and magnitude of harm a space heater could cause, the lack of additional warnings made the Heater defective. Nor does the fact that Mr. Shinedling testified at deposition that he read and understand the warning to keep materials 3 feet away from the Heater preclude a jury determination as to whether additional warnings were necessary under these circumstances.
c . Negligence
Sunbeam also moves for partial summary judgment on Plaintiffs’ negligence claim to the extent it relies on manufacturing defect or warning defect theories. Negligent products liability, like strict liability, requires proof that a defect in the product caused the plaintiff’s injury. [c] A negligence claim requires the additional element that the defect in the product was due to the defendant’s negligence. Sunbeam is entitled to partial summary judgment on Plaintiffs’ negligence claim to the extent that it is premised on a manufacturing defect in the Heater, for the same reasons discussed in connection with strict liability above. Sunbeam has not shown that summary judgment is warranted as to Plaintiffs’ negligent warning defect theory.
For the foregoing reasons, the Court GRANTS IN PART Sunbeam’s motion for partial summary judgment.
Note 1. Why did the court find that the plaintiffs had failed to make out a manufacturing defect? What might have made a difference, in your view?
Note 2. What was the significance of the plaintiffs’ assertion that the heater had not been modified after it left Sunbeam’s possession?
Note 3. A manufacturer may be liable for a failure to warn if they “did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution” (emphasis added). What does it mean for a risk to be “known or knowable”? What standard or standards of conduct does the phrase reflect, and why do you think the range exists?
Note 4. What factors, in combination, caused the court to allow the case to proceed on a theory of failure to warn? What standard (objective or subjective) did the court’s reasoning reflect? Why did it not seem to matter that Mr. Shinedling testified that he had understood the warning to keep materials three feet away from the heater? You may recall Garrisonv. Deschutes (Sup. Ct. Or. 2002)) from Module 3, Causation, in which the court found there was no liability for Deschutes County’s failure to warn of risk of falling due to the lack of any barrier guarding the drop-off at the Fryrear transfer station because Garrison and his wife admitted knowing of the danger). Is this case distinguishable, in your opinion? If so, what makes it so?
Note 5.The Malleability of The “Unreasonably Dangerous” Standard. California rejected the Restatement § 402A’s approach to “unreasonably dangerous” products. Given that the majority of jurisdictions have chosen to retain it in some fashion, how are “unreasonably dangerous” products defined? Many accidents occur each year in connection with ladders, lawn mowers, and swimming pools. Significant injuries and death continue to result from gun ownership and tobacco use (which also causes substantial disease in users and those in their households). But all—from ladders through tobacco—are indisputably prevalent features of American life. Should all products that are classified as “inherently dangerous” in some way be treated the same way under tort law or do they merit particularized treatment? For instance, what warnings should manufacturers (and sellers) be required to provide for products like cigarettes? Alcohol? Vapes? Cannabis-infused products? How about products that include butter (as an ingredient traced to heart disease)? Sugary sodas and fatty foods? Should products associated with significant dangerous allergies be required to carry warnings?
There are doctrinal and pragmatic answers to these questions. Doctrinally, once significant risks become foreseeable (“known or knowable,” to be more precise), a failure to warn can lead to liability but usually requires that the risk be general enough to be of common application. If a tiny percentage of the population has a rare allergy to some component of a product, the risk may not be enough to create a duty to warn. The sufferer of this rare allergy is almost certainly on notice that they must take extra precautions. But the greater the prevalence of the risk, the greater the likelihood that the duty to warn exists. Pragmatically, the answer is partly a function of political power; products with powerful industry organizations can and do lobby for favorable legislation that may immunize or limit their likely liability, regardless of the danger of their products.
Check Your Understanding (5-3)
Question 1. A self-driving car crashes into a pedestrian and the pedestrian seeks to recover for their injuries. Which of the following, if true, would make recovery easiest?
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Expand On Your Understanding – Stinky Raw Cheese Hypothetical
Practice Applying Rules from Prior Cases
A local farmer’s market that runs every Saturday morning features a business, Fox Farms, which sells stinky fresh cheese made on their farm. Some of their cheeses are unpasteurized, which their customers love. It is difficult to find stinky unpasteurized cheeses in stores since they carry the risk of harboring e. coli, salmonella, listeria, and other pathogens that can cause vomiting, diarrhea and other serious gastrointestinal complications. Pregnant women, for instance, are advised to avoid unpasteurized food entirely. Fox Farms’ clients seek this farm’s cheeses out specially and the business runs out well before the end of the market every week. The farm maintains a chalkboard that lists its selections and most weeks, one of the employees writes UNPASTEURIZED at the top of the board and marks which cheeses are unpasteurized. In smaller print, there is a warning about the health hazards of eating such cheeses. One line specifically states: “We recommend that PREGNANT WOMAN avoid these cheeses!”
On a recent Saturday, a new employee forgot to write UNPASTEURIZED at the top of the board and thus failed to list which cheeses were unpasteurized. In at least a few cases, he remembers verbally telling customers that the cheeses they were selecting were unpasteurized but he concedes that he cannot recall, in all cases, whether he did so. As usual that day, the unpasteurized cheeses sold out much faster than the other offerings, suggesting that at least some consumers were, as usual, seeking out these particular cheeses with knowledge of their benefits and risks.
Unfortunately, Fox discovered its first-ever e. coli outbreak and diligently began trying to trace its steps to minimize the possible harm. However, the damage was done and several customers were made violently ill, including one pregnant woman, who died as a result. The employee who had forgotten to warn felt terrible upon learning that some people were unaware of the risk. He was otherwise a very careful and responsible individual.
For the following hypotheticals, consider whether the plaintiffs are likely to recover. Each is designed to trigger the application of a rule from a case you have read. (If the facts look completely unfamiliar, this exercise may either serve as a helpful review or may indicate a case that your professor has not assigned; don’t worry about it too much either way. These exercises are meant to teach and reinforce as much as they “review what you already know.”) As a side note, in the real world, layers of regulation may apply to safeguard food sources (and certain immunities may also exist to shield some actors in the supply and vending chain). For our purposes, focus only on the principles of law you have learned in connection with your study of tort law. Turn each card to reveal the answer.
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1. The dissent conflates Ford’s requested instructions, which change the standard under which a plaintiff must prove a design defect, with instructions that may assist a jury on how to use relevant information. Ford only proffered instructions on the former, and once denied by the district court, agreed to the instructions given and sought no further clarifications to assist the jury with the latter.
2. In addition to the instructions reprinted in the text, Ford proposed a “state of the art defense” instruction and, citing Robinson v. G.G.C., Inc., 107 Nev. at 139–40, an instruction that would have told the jury as a minimal alternative that “[a] manufacturer is not required to produce the safest design possible.” Both were refused, as was Ford’s additional proposed instruction based on the Restatement (Third) section 2(b) that would have told the jury that, in assessing risk-utility, to consider “(a) the likelihood that the product will cause injury considering the product as sold with any instructions or warnings regarding its use; (b) the ability of the plaintiff to have avoided injury; (c) the plaintiff’s awareness of the product’s dangers; (d) the usefulness of the product as designed as compared to a safe design; (e) the functional and monetary cost of using the alternative design; and (f) the likely effect of liability for failure to adopt the alternative design on the range of consumer choice among products.
3. The majority characterizes Ford’s proposed jury instructions as asking the district court to overrule or change existing Nevada law, something a district court cannot do. But this misreads the record and the law. Nevada has never rejected feasible alternative design as an appropriate consideration in a design defect case. See McCourt, 103 Nev. at 102, and Nevada cases cited, supra [c]. And, even in its proposed risk-utility instructions, Ford included consumer expectations as a factor to be considered. Also unavailing is the majority’s suggestion that Ford somehow waived its right to have the jury instructed on alternative feasible design. It requested the instructions; it objected to the failure to give them; and it moved for a new trial based on instructional error. The law does not require more. See Johnson v. Egtedar, 112 Nev. 428, 434–35 (1996) (recognizing that if a court is “adequately apprised of the issue of law involved and was given an opportunity to correct the error,” then a party has adequately reserved a jury instruction issue for appellate review).
4. If this is the majority’s intent, such a holding would place Nevada in the extreme minority of jurisdictions that do not allow any evidence of risk-utility in design defect cases as is discussed more in depth in the next section. See Aaron D. Twerski & James A. Henderson, Jr., Manufacturers’ Liability for Defective Product Designs: The Triumph of Risk–Utility, 74 Brook. L. Rev. 1061, 1104–05 (2009).
5. The proposed instruction provided that a warning must be designed to catch the attention of the consumer, give a fair indication of the specific risks attributable to the product, and that the intensity of the warning match the danger being warned against. Lewis, 119 Nev. at 105. In comparison, the given instruction merely provided that whether a warning was legally sufficient depended upon the language used and its impression on the consumer. Id.
6. The relevant evidence Plaintiffs submit in support of their assertion that “there are historical reports of the bottom of this type of heater burning and melting and starting fires” consists of two customer complaints involving the same or similar heaters in the time period from 2004 to 2014 which reported failure of internal wiring that burned through the bottom of the heater. Internal wire failures that result in fires, according to Plaintiffs’ expert, are “typically the result of a poor electrical contact due to improper assembly of the connection.” Notably, Plaintiffs’ expert found that the customer complaints contained “insufficient information ... to perform an independent analysis, so the comments within the summary are not intended to reflect conclusions,” and based on the information available to him, “it is impractical to make an independent determination of cause with specificity for any of the reported incidents.” Even taking the evidence in the light most favorable to Plaintiffs, it would be too speculative to say that these isolated reports of fire-causing internal wire failure in other heaters over a 10-year period create a triable issue that the Shinedlings’ heater contained an internal wiring defect that existed because of a manufacturing error, and that failure of this defective internal wiring substantially caused the fire at issue. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/05%3A_Products_Liability_Law/5.06%3A_Design_Defects_%28Socratic_Script%29.txt |
Various defenses limit the scope of potential liability for injuries caused in connection with defective products. The most common doctrinal defenses are probably misuse and modification. In addition to having to prove some form of defect (or alternatively, breach of either warranty or due care), plaintiffs must often be able to show that they did not misuse a product. If a plaintiff suffers injuries when trying to use a car as a boat, for instance, the fault lies with the plaintiff, not the defendant for failing to anticipate such a use. However, some uses are so common that they have become foreseeable even if they are not the intended use for the product. For instance, a chair is meant to be sat on, not climbed. Yet it has long been treated as foreseeable that a chair will be used as a stepstool in lieu of a ladder, for reaching higher-up items. It would not be a misuse for someone to use a chair in such a way in their home. There may be a duty to anticipate foreseeable misuses, in other words. Plaintiffs may also need to be able to show the product has not been modified since leaving the defendant’s control. This may require proof that the plaintiff has not altered the product or that there was no intervening third-party force that could constitute a superseding cause and sever the chain of causation.
In some instances, courts will use duty to limit defendants’ liability, as when the risks associated with a product are open and obvious. Consider the case of aboveground pools, which are swimming pools that rise above ground level rather than being dug into a corresponding hole in the ground. In the 1980s, the pool construction industry found itself targeted in multiple lawsuits over spinal injuries suffered by people who dived headfirst into these structures. Unlike most other bodies of water, including in-ground swimming pools, the depth—or more accurately, the shallowness—of an aboveground pool is plainly discernible to tort law’s “reasonable person.” The general rule is that there is no duty to warn of open and obvious dangers. So as long as the defendant can prove that the danger was indeed open and obvious, duty analysis may shield them their liability.
Is what is “open and obvious” the same for all people? If warnings express a risk well enough that many or most people understand it and can choose whether to avoid the risk, is that good enough or should a warning make risks patently clear to all foreseeable users?
Recent Controversy. In 2021, a young woman, Tessica Brown, apparently ran out of her regular hair product, “Got2Be Glued” and used Gorilla Glue adhesive spray to set her hair instead. When she was unable to remove it for a month, she posted a video on TikTok seeking help. The video immediately went viral and has now been viewed over 50 million times as of Feb. 24, 2022, see: https://www.klfy.com/louisiana/one-year-later-gorilla-glue-girl-tessica-browns-life-is-transformed-for-the-better/. Brown did receive advice and some offers of help though she also was subject to some criticism for using the glue in this way. A report that she was contemplating litigation against the manufacturer of Gorilla Glue turned out to false, but at least two personal injury attorneys believed Brown had a claim that could survive the pleading stage had she decided to sue. https://www.insider.com/tessica-brown-gorilla-glue-hair-lawyers-weigh-in-2021-2
Presumably, Gorilla Glue’s purported liability would be based on a failure to warn since the company “says do not use on eyes, skin or clothing … with no mention of hair.”
What do you think? Is it “open and obvious” that glue should not be used on hair? Are you familiar with Got2Be Glued and its uses on hair? Would it matter to your answer if you knew or learned that a subset of the population—mainly women of color—used a product that included glue-like characteristics on their hair? Consider the following excerpt of an article about using that product:
Got2b glued is a “water-resistant” hair styling/spiking gel from the brand Schwarzkopf. Schwarzkopf is a professional brand of hair care products. The Got2b glued gel is the newest trend of securing wig and frontal units. … Got2b glued comes in a white (regular) or clear (ultra hold) form. Both products boast water-resistant claims of a screaming hold. Still not following me? That’s okay. What these users are doing, including myself, is applying a thin layer of the gel to whatever area they want their lace wig to be applied to. Once the gel has dried to a tacky consistency, the lace wig is then applied for a strong glue-like hold! Awesome, right? Well, maybe not so awesome for some. I have come across reports of lack of hold, difficulty removing, and hair loss as a result of this product. https://thecrissymack.com/2017/04/13/7-things-they-didnt-tell-you-about-got2b-glued-for-your-lace-wig/
Does Brown’s use of Gorilla Glue seem different in light of the existence of this existing hair adhesion product and its widespread use in hair care? Does Gorilla Glue have a responsibility to anticipate foreseeable misuses such as these, and whose perspective determines what is deemed foreseeable? In the alternative, should a risk like extra-strong glue’s remaining adhered to hair be considered “open and obvious”? How might tort law’s purposes guide your considerations?
Happily, a year and a half after the incident, Tessica Brown appears to be all healed and the owner of a successful haircare business: https://www.klfy.com/louisiana/one-year-later-gorilla-glue-girl-tessica-browns-life-is-transformed-for-the-better/ “She now also owns a successful haircare line.”
Certain categories of actors have been immunized from liability in connection with injuries caused by products liability. Pharmaceutical and medical device manufacturers are protected by the learned intermediary doctrine, which holds that the “learned intermediary” who interacts with patients or consumers of the product is the one responsible for warning them of the products’ risks. The manufacturers owe a duty to warn the learned intermediary appropriately but from that point forward, their liability is limited or extinguished. A general exception for oral contraceptives has been recognized in light of the fact that consumers may not consult as meaningfully with a doctor in that medical context as in almost every other. The learned intermediary doctrine has been adopted in most U.S. jurisdictions, though it is subject to multiple critiques. Pharmaceutical companies often market directly to consumers, which would seem to eliminate the role of a learned intermediary. Physicians may enter consulting arrangements or otherwise accept compensation from pharmaceutical companies, which has also subjected the doctrine to criticisms of potential conflicts of interest. Notwithstanding these critiques, efforts among representatives of the plaintiffs’ bar to create “direct to consumer” or “physician compensation” exceptions have failed to gain much traction. See e.g. DiBartolo v. Abbott Labs., 2012 WL 6681704 (S.D.N.Y. Dec.21, 2012); Calisi v. Abbott Labs., 2013 WL 5462274 (D. Mass. Feb. 25, 2013).
Victims of injury are typically immunized from suit by first responders, fire fighters and professional rescuers (see Module 3, discussion of the “Firefighter’s rule” in connection with Clinkscales v. Nelson Securities, , 697 N.W.2d 836 (Iowa, 2005). However, this limitation does not apply to claims by professional rescuers against manufacturers or sellers of equipment or uniforms, so this is an area in which an ordinarily available defense becomes unavailable in the context of products liability.
Finally, as with other torts claims, product liability actions may be subject to statutes of limitation and repose (see Module 4).
The next case provides an opportunity to synthesize the various theories of product liability in a case concerning a toxin that caused respiratory disease (“popcorn lung”) due to its widespread use in microwave popcorn.
(960 F. Supp.2d 849)
This case brings to mind the idiom, “Too much of a good thing can be bad for you.” In this diversity action under Iowa products liability law, plaintiffs allege that Deborah Daughetee developed “popcorn lung” by consuming multiple bags of microwave popcorn daily for several years. Presently, I am asked to determine whether the plaintiffs are entitled to present to a jury both their failure to warn and design defects. *853 [***]
Plaintiffs Deborah Daughetee and Steven Daughetee are married and residing in Albuquerque, New Mexico. [***] Symrise, Firmenich, and Hansen (collectively “defendants”) all produced butter flavorings containing diacetyl. [***] Defendants sold their butter flavorings to microwave popcorn manufacturers, including ConAgra, General Mills, and American Popcorn. General Mills and ConAgra have been aware, since the 1990s’s, that defendants’ butter flavorings contained diacetyl. ConAgra is the largest manufacturer of microwave popcorn in the United States. It operates five microwave popcorn factories and has been in the microwave popcorn business since the 1980’s. Diacetyl is a basic food chemical present in all cheeses and butters. It is an ingredient used to manufacture butter flavorings. Diacetyl is one of a number of potentially volatile organic compounds present in butter flavorings. Butter flavorings are intended to provide “buttery” taste and smell. Upon opening a microwave popcorn bag with butter flavoring, diacetyl vapors are released.
Between 1989 and 2004, Deborah regularly ate microwave popcorn. From 1989 to 2004, she prepared and consumed approximately one or two bags of microwave popcorn each day. Deborah prepared a “Product Identification” Sheet (“Product ID Sheet”) in which she identified the brands of microwave popcorn she has eaten since 1989 [including] various brands manufactured by General Mills, ConAgra, and American Popcorn. [***]
After removing a bag of butter flavored microwave popcorn from the microwave, Deborah would open the bag and draw the buttery smell into her nose and lungs. She “liked the smell of opening a bag near my face,” and liked the taste of butter flavored, microwave popcorn. Deborah first ate microwave popcorn in 1989 while working as a writer for the television show “Tour of Duty.” She prepared and ate two bags of microwave popcorn while she worked on Tour of Duty. Typically, she would eat one bag at the office and then take another bag home with her.
[The court reviews the facts in granular detail: plaintiff was able to link certain kinds of popcorn she ate while working on certain shows, during certain time frames and purchased from certain stores (for example, Costco, where particular brands could be identified).
Deborah stopped eating popcorn in 2004 because she grew tired of it.
[The court conducts an extensive survey of the industry’s actions and knowledge, including its industry-wide self-regulation mechanisms and safety protocols, the practices and state of knowledge of the various defendants with respect to the risks associated with diacetyl, and the actions of various entities that discovered that plant workers were developing lung issues and did not take responsible actions to curb the risk or inform relevant parties and partners.] [***]
[D]efendants make three arguments in support of their claim that they had no duty to warn Deborah about the harms allegedly associated with exposure to their butter flavorings. First, defendants contend that they did not owe Deborah a duty to warn because, during the time that Deborah ate microwave popcorn containing their flavorings, it was not reasonably foreseeable that their flavorings posed a risk to consumers. Second, defendants assert that, because General Mills and ConAgra were sophisticated users of flavoring products, General Mills and ConAgra were in a better position to warn consumers about their products. Finally, defendants argue that they were bulk suppliers of flavorings ingredients and were not in a position to warn consumers of General Mills and ConAgra’s microwave popcorn about the dangers associated with the finished popcorn products. [***]
Under Iowa law, “[a] claim alleging a manufacturer failed to warn of the dangers involved in using a product is properly based on a theory of negligence, not strict liability.” [***]*865 Defendants, as manufacturers, are held to have the knowledge of an expert and therefore should have known of the hazards inherent in their products. “The relevant inquiry therefore is whether the reasonable manufacturer knew or should have known of the danger, in light of the generally recognized and prevailing best scientific knowledge yet failed to provide adequate warning to users or consumers.” [c] Thus, reasonable foreseeability of danger to users of a product triggers the duty to warn. A manufacturer has no duty to warn when it did not or should not have known of the danger. [c]
Defendants argue that there was no scientific or medical knowledge at the time Deborah was consuming microwave popcorn with butter flavorings which would have given them a reasonable basis to believe their product could cause injuries to consumers. The Daughetees counter that defendants had knowledge of the hazards associated with their butter flavorings, at least at some level, or that knowledge was ascertainable prior to and during Deborah’s exposure. [***]
[Editor’s summary: The court then details information available through the flavor industry’s trade organization, FEMA, including a warning in 1985 that diacetyl was “harmful” and high concentrations were “capable of producing systemic toxicity.” From 1991-1997, the defendants were placed on varying degrees of notice. In 1991, a consultant was hired who informed Firmenich of the dangers of potent inhalation hazards of numerous chemicals, including diacetyl, and advised the company to specially label the chemical, provide additional warnings, and take additional precautions in its use and storage. In 1992, Givaudan discovered one of its employees had been diagnosed with bronchiolitis obliterans and that one of the employees may have died as a result. In 1996, Givaudan informed FEMA of the bronchiolitis obliterans diagnosis. In 1997, FEMA held a special conference to discuss respiratory safety and discussed the suspected links between diacetyl exposure and bronchiolitis obliterans. In 2001, the Wall Street Journal published an article about the prevalence of lung disease among employees at an artificial butter flavoring manufacturing plant. Some changes in ventilation may have been made to minimize workers’ exposure to diacetyl and other respiratory hazards. On August 2, 2002, [the National Institute for Occupational Safety and Health (“NIOSH”)] conducted testing of the plant in question and issued an update stating that they believed that “butter flavoring in the air caused lung disease in workers at this plant.”
The NIOSH update made the following observation concerning quality control exposures: “Many quality control workers had abnormal breathing tests and have continued risk even after the ventilation changes in the plant. Based on our survey results, we believe that they may receive many peak exposures to flavoring vapors when microwaving the popcorn bags, opening them, and measuring the amount of hot popcorn. When the popcorn/flavorings temperature increased, the vapor increased, although the high exposures only lasted for seconds or a few minutes. We are concerned about these short peak exposures in the quality control room and have provided recommendations for control.” By 2003, NIOSH had broadened the scope of its investigations to include several of ConAgra’s microwave popcorn plants. A medical survey of ConAgra’s workers identified evidence of the same type of lung disease. By the end of 2003, a number of ConAgra workers had filed lawsuits alleging that they suffered lung disease as a result of exposure to butter flavorings.]
The plain language of § 2(c) focuses on the concept of “reasonableness” for judging the adequacy of warnings, a malleable concept that is intertwined with the facts and circumstances of each case. “Whether the warning actually given was reasonable in the circumstances is to be decided by the trier of fact.” RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. i. [***] No easy guideline exists for courts to adopt in assessing the adequacy of product warnings and instructions. In making their assessments, courts must focus on various factors, such as content and comprehensibility, intensity of expression, and the characteristics of expected user groups. Id.
I find that the information and circumstances detailed above, considered in the light most favorable to the Daughetees, generates genuine issues of material fact as to whether defendants knew or had reason to know that their butter flavorings posed a potential risk, at some level, to consumers, thus triggering the necessity for a warning. Therefore, this portion of defendants’ motion for summary judgment on the failure-to-warn claims is denied.
b. Intermediary user defense
Defendants also move for summary judgment on the Daughetees’ failure to warn claims because General Mills and ConAgra were “sophisticated” intermediary users of their butter flavoring products and, thus, defendants were entitled to rely on General Mills and ConAgra to provide appropriate warnings to consumers. The Daughetees argue that defendants cannot avail themselves of the intermediary user defense because they failed to fully communicate the possible hazards of their butter flavorings to General Mills and ConAgra and therefore could not reasonably rely on General Mills and ConAgra to provide appropriate warnings.
*870 In Nationwide Agribusiness Ins. Co. v. SMA Elevator Constr., Inc., 816 F.Supp.2d 631, 653-54 (N.D. Iowa 2011), I specifically found that:
“intermediary” defense is still viable under Iowa law. … Restatement (Third) § 2(c) and comment i recognize a defense to a warning defect claim based on the duty of an intermediary—and not even necessarily a “learned” or “sophisticated” intermediary—to warn the end user. Section 2 expressly considers whether “the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution.
[fn] Comment i distills down to three non-exclusive factors the considerations set out at length in Comment n for determining when a warning to an intermediary is sufficient.
*871 I conclude, taking the facts in the light most favorable to the Daughetees, the non-moving party, see Torgerson, 643 F.3d at 1042–43, that a reasonable juror could reject application of defendants’ ‘intermediary” defense. Significantly, a reasonable juror could conclude that defendants’ butter flavorings containing diacetyl were dangerous products if inhaled. Moreover, a reasonable juror could conclude that the likelihood that the intermediaries, General Mills and ConAgra, would convey the information to the ultimate user was greatly reduced or eliminated if defendants withheld information concerning the dangers posed by their butter flavorings from General Mills and ConAgra. General Mills and ConAgra could not be relied on as reasonable conduits for the necessary information concerning defendants’ butter flavorings if defendants were not first forthcoming to them about the respiratory dangers posed by their products. Finally, a reasonable juror could conclude that placing an adequate warning on microwave popcorn products containing defendants butter flavorings would not be burdensome. There is no material in the summary judgment record that either General Mills or ConAgra were likely to refuse placement of a warning on their microwave popcorn product.
Therefore, this portion of defendants’ motion for summary judgment on the failure-to-warn claims is also denied. [***]
2. Proximate cause
Defendants also seek summary judgment on the Daughetees’ failure to warn claims on the grounds that the Daughetees cannot establish that defendants’ failure to warn Deborah was the proximate cause of her lung condition. …
a. Proximate cause requirement
[***]“ In products liability, the plaintiff must prove his or her injuries were proximately caused by an item manufactured or supplied by the defendant.” Spaur v. OwensCorning Fiberglas Corp., 510 N.W.2d 854, 858 (Iowa 1994); [***]. It is well-settled that questions of “proximate cause are ordinarily for the jury,” and “only in exceptional cases should they be decided as a matter of law.” Thompson v. Kaczinski, 774 N.W.2d 829, 832 (Iowa 2009) (quoting Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005)) [***]
This is not an “exceptional” case. “In the context of a failure to warn claim, proximate cause can be established by showing a warning would have altered the plaintiff’s conduct so as to avoid injury.” There is no material in the summary judgment record that *873 Deborah would have ignored a warning to avoid breathing in the vapors from a freshly popped bag of microwave popcorn. A reasonable juror could conclude that a person would not risk permanent, severe lung damage in order to enjoy breathing in the buttery smelling vapors from microwave popcorn if warned about possible serious consequences. There is also no material in the summary judgment record that either General Mills or ConAgra were likely to refuse placement of a reasonable warning on their microwave popcorn product. [***] Given these circumstances, I conclude that questions of proximate cause, here, are for the jury to determine and deny this portion of defendants’ motion for summary judgment. …
C. Breach Of Implied Warranty Claims
Defendants also seek summary judgment on the Daughetees’ breach of implied warranty claims.
1. Are implied warranty claims redundant?
Defendants argue that the Daughetees’ breach of implied warranty claims in Count II are redundant with their negligence claims found in Count I. Defendants argue that to submit both claims to the jury will generate confusion and may well lead to inconsistent verdicts. The Daughetees respond that, under Iowa law, both claims may be asserted in the same case. [***] The Iowa Supreme Court … has clearly stated that “personal injury plaintiffs are permitted to seek recovery under tort and warranty theories that in essence allege the same wrongful acts.” Wright, 652 N.W.2d at 181; see Mercer, 616 N.W.2d at 621 (holding no error in submitting personal injury claims under both strict liability and breach of warranty theories); see also Lovick, 588 N.W.2d at 698 (stating that although claims for negligence, strict liability, and breach of warranty are separate and distinct theories of liability under products liability law, the same facts often give rise to those three claims). Thus, the Daughetees’ negligence claims and implied warranty claims are not redundant. I also note that the risks of jury confusion can be alleviated by instructions to the jury during trial and the manner in which the Daughetees’ claims are submitted to the jury for deliberation. Accordingly, I deny this portion of defendants’ motion for summary judgment.
2. Proof of a product defect
Defendants also argue that the Daughetees have offered no proof of a product defect, and, therefore, their breach of implied warranty claims fail as a matter of law. The Daughetees respond that they have adduced sufficient evidence to prevail on a breach of implied warranty claim based on either a failure to warn or a design defect.
a. Defective because of inadequate warnings
Defendants assert that the Daughetees’ implied warranty claims based on inadequate warnings fail because they had no duty to warn Deborah about the dangers associated with their butter flavorings. The Daughetees dispute defendants’ assertion. Both parties reassert all of their arguments addressed above concerning the Daughetees’ failure to warn claims. For the reasons stated at length above, I conclude genuine issues of material fact have been generated on whether defendants knew or had reason to know that their butter flavorings posed a potential risk, at some level, to consumers, thus triggering the necessity for a warning. Therefore, this portion of defendants’ motion for summary judgment is denied.
*876 b. Defective design
The Iowa Supreme Court has explained that, “[t]o succeed under [Restatement (Third) ] section 2(b), a plaintiff must ordinarily show the existence of a reasonable alternative design, Wright, 652 N.W.2d at 169, and that this design would, at a reasonable cost, have reduced the foreseeability of harm posed by the product[,] Restatement § 2 cmt. d.” Parish v. Jumpking, Inc., 719 N.W.2d 540, 543 (Iowa 2008); accord Scott, 774 N.W.2d at 506 (“The Third Products Restatement section 2, as adopted in Wright, requires plaintiffs in design defect cases to demonstrate the existence of a reasonable alternative design.”). Defendants assert that the Daughetees’ implied warranty claims based on defective designs fail because they have offered no evidence of a reasonable alternative design. The Daughetees contend that defendants’ assertion is untrue and that they have put forward evidence that diacetyl-free butter flavorings was a viable alternative design. A review of those materials belies that claim. None of the materials cited by the Daughetees supports the proposition that defendants have or could have produced diacetyl-free butter flavorings. Thus, I find that the materials submitted by the Daughetees are insufficient for a jury to conclude that a reasonable alternative design was available to butter flavorings with diacetyl. Accordingly, this portion of defendants’ motion for summary judgment is granted. [***]
D. Symrise Butter Flavor in ConAgra Microwave Popcorn
Defendant Symrise also seeks summary judgment on the Daughetees’ claims as they relate to Dragoco butter flavorings contained in ConAgra ACT II Butter Lover’s microwave popcorn. Symrise asserts that the Daughetees cannot prove that her lung disease was caused by Dragoco butter flavorings contained in ConAgra ACT II Butter Lover’s microwave popcorn. Symrise argues that Dragoco only provided butter flavorings containing diaceytl to ConAgra for a short time in the early 1990’s and that the amount of Dragoco’s butter flavorings used in ConAgra’s ACT II Butter Lover’s microwave popcorn is unknown. As a result, Symrise argues that Deborah’s exposure levels to it are *877 speculative and cannot support a finding of causation. Symrise further argues that any claim based on Deborah’s exposure to Dragoco butter flavorings contained in ConAgra ACT II Butter Lover’s microwave popcorn is barred under Iowa’s statute of repose, Iowa Code § 614.1.
The Daughetees respond that Dragoco’s butter flavorings are not the only butter flavorings containing diacetyl that Symrise supplied and that Deborah’s cumulative exposure to Symrise’s products is sufficient to generate a genuine issue of material fact with respect to causation. The Daughetees also argue that Iowa’s statute of repose does not bar their claims because of Iowa’s discovery rule. [c]
Symrise’s statute of repose argument requires me to explain Iowa’s statute of repose, Iowa Code § 614.1, and its discovery rule exception found in Iowa Code § 614.1(2A)(b). See Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 992 (8th Cir.2007) [***] Iowa’s statute of repose contains the following relevant provisions:
Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:
….
2A. With respect to products.
a. Those founded on the death of a person or injuries to the person or property brought against the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of a product based upon an alleged defect in the design, inspection, testing, manufacturing, formulation, marketing, packaging, warning, labeling of the product, or any other alleged defect or failure of whatever nature or kind, based on the theories of strict liability in tort, negligence, or breach of an implied warranty shall not be commenced more than fifteen years after the product was first purchased, leased, bailed, or installed for use or consumption unless expressly warranted for a longer period of time by the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of the product. This subsection shall not affect the time during which a person found liable may seek and obtain contribution or indemnity from another person whose actual fault caused a product to be defective. This subsection shall not apply if the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of the product intentionally misrepresents facts about the product or fraudulently conceals information about the product and that conduct was a substantial cause of the claimant’s harm.
b. (1) The fifteen-year limitation in paragraph “a” shall not apply to the time period in which to discover a disease that is latent and caused by exposure to a harmful material, in which event the cause of action shall be deemed to have accrued when the disease and such disease’s cause have been made known to the person or at the point the person should have been aware of the disease and such disease’s cause. This subsection shall not apply to cases governed by subsection 11 of this section.
(2) As used in this paragraph, “harmful material” means silicone gel breast implants, which were implanted prior to July 12, 1992; and chemical substances commonly known as asbestos, dioxins, tobacco, or polychlorinated biphenyls, *878 whether alone or as part of any product; or any substance which is determined to present an unreasonable risk of injury to health or the environment by the United States environmental protection agency pursuant to the federal Toxic Substance Control Act, 15 U.S.C. § 2601 et seq., or by this state, if that risk is regulated by the United States environmental protection agency or this state. IOWA CODE § 614.1(2A).
A statute of repose runs from the time the product is first purchased and not from the time harm is first suffered. In other words, “a statute of limitations runs from the accrual of a cause of action, whereas a statute of repose runs from a different, earlier date.” Albrecht v. General Motors Corp., 648 N.W.2d 87, 90 (Iowa 2002). Thus, Iowa Code § 614.1(2A) is “clearly [a] statute[] of repose.” Id. at 92.
The Daughetees do not dispute that their claims fall within the ambit of this statute of repose. Rather, they argue that their claims are allowed by an exception provided for in the statute. Specifically, the exception in § 614.1(2A)(b)(1) for the discovery of latent disease caused by exposure to a “harmful material.” However, the term harmful material is specifically defined as: (1) “silicone gel breast implants, which were implanted prior to July 12, 1992;” (2) “chemical substances commonly known as asbestos, dioxins, tobacco, or polychlorinated biphenyls, whether alone or as part of any product;” or (3) “any substance which is determined to present an unreasonable risk of injury to health or the environment by the United States environmental protection agency pursuant to the federal Toxic Substance Control Act, 15 U.S.C. § 2601 et seq., or by this state, if that risk is regulated by the United States environmental protection agency or this state.” IOWA CODE § 614.1(2A)(b)(2).
The harmful material at issue here is diacetyl. In order for diacetyl to fall within the third category of harmful materials, it must have been determined by either the United States EPA, pursuant to the federal Toxic Substance Control Act, 15 U.S.C. § 2601, or Iowa, to “present an unreasonable risk of injury to health or the environment” and that risk must be regulated by the United States EPA or Iowa. Diacetyl is not classified as harmful material by either the United States EPA or Iowa. To the contrary, it is listed as a food ingredient that is generally recognized as safe for human consumption. See 21 C.F.R. § 184.1278. Accordingly, no statutory exception applies and the Daughetees’ claims are subject to Iowa’s fifteen year statute of repose. Deborah first consumed or purchased ConAgra ACT II Butter Lover’s microwave popcorn containing Dragoco butter flavorings with diaceytl in 1992. The Daughetees’ filed their initial complaint on December 8, 2009, more than fifteen years after Deborah first purchased ConAgra ACT II Butter Lover’s microwave popcorn containing Dragoco butter flavorings with diaceytl. Thus, the Daughetees’ claims as to ConAgra ACT II Butter Lover’s microwave popcorn containing Dragoco butter flavorings with diaceytl are barred under Iowa’s statute of repose.
Therefore, Symrise’s Motion For Summary Judgment As To Plaintiff’s Alleged Exposure To Symrise Butter Flavor In ConAgra Microwave Popcorn is granted.
Note 1. Why was the theory of design defect rejected? Not that you will ever eat microwave popcorn again most likely (#bronchiolitisobliterans) but do you agree with the court’s resolution of this issue? What more would you need to know?
Note 2. In the context of this fact pattern, practice identifying for yourself the different ways that a plaintiff can recover in products liability law (express warranty, implied warranty, and the three kinds of action rooted in defects). You can see that the court may blend them to some extent, but it is helpful to try to keep the theories distinct. Can you see some of the reasons why? What facts would you need to change to bring this case within the scope of the other products liability actions?
Note 3. The case illustrates how a statute of repose may limit the plaintiff’s ability to recover. What do you think, normatively, of the role the statute plays in Daughetee? How would a statute of limitation operate here, in contrast? | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/05%3A_Products_Liability_Law/5.07%3A_Defenses_to_Products_Liability.txt |
Most cases are not about punitive damages. While cases featuring punitive damages seek to punish, and thus to deter, the majority of cases center instead on compensating plaintiffs for their suffering and losses. Nonetheless, punitive damages play an important role in shaping behavior even through the possibility that they may be sought. They also define a boundary between more and less conventionally tortious conduct. Accordingly, they merit discussion for their ongoing role in shaping tort policy. The behavior associated with punitive damages must be reprehensible, not just irresponsible and unreasonable (“The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996)). In tort law, “reprehensibility” may mean looking for conduct that is “wanton and willful” or that “shocks the conscience”; diverse formulations exist depending on the jurisdiction. These determinations will require an extra showing in addition to merely proving liability and damages. In many cases, courts use a separate verdict form to determine the existence and amount of any punitive damages.
The next case, featuring an opinion by Judge Richard Posner, reviews the most commonly deployed rationales for punitive damages.
(79 F.3d 33)
Jeffrey Kemezy sued a Muncie, Indiana policeman named James Peters under 42 U.S.C. § 1983, claiming that Peters had wantonly beaten him with the officer’s nightstick in an altercation in a bowling alley where Peters was moonlighting as a security guard. The jury awarded Kemezy \$10,000 in compensatory damages and \$20,000 in punitive damages. Peters’ appeal challenges only the award of punitive damages, and that on the narrowest of grounds: that it was the plaintiff’s burden to introduce evidence concerning the defendant’s net worth for purposes of equipping the jury with information essential to a just measurement of punitive damages. [***]
The standard judicial formulation of the purpose of punitive damages is that it is to punish the defendant for reprehensible conduct and to deter him and others from engaging in similar conduct. [cc] This formulation is cryptic, since deterrence is a purpose of punishment, rather than, as the formulation implies, a parallel purpose, along with punishment itself, for imposing the specific form of punishment that is punitive damages. [***] A review of the reasons will point us toward a sound choice between the majority and minority views.
1. Compensatory damages do not always compensate fully. Because courts insist that an award of compensatory damages have an objective basis in evidence, such awards are likely to fall short in some cases, especially when the injury is of an elusive or intangible character. If you spit upon another person in anger, you inflict a real injury but one exceedingly difficult to quantify. If the court is confident that the injurious conduct had no redeeming social value, so that “overdeterring” such conduct by an “excessive” award of damages is not a concern, a generous award of punitive damages will assure full compensation without impeding socially valuable conduct.
2. By the same token, punitive damages are necessary in such cases in order to make sure that tortious conduct is not underdeterred, as it might be if compensatory damages fell short of the actual injury inflicted by the tort.
These two points bring out the close relation between the compensatory and deterrent objectives of tort law, or, more precisely perhaps, its rectificatory and regulatory purposes. Knowing that he will have to pay compensation for harm inflicted, the potential injurer will be deterred from inflicting that harm unless the benefits to him are greater. If we do not want him to balance costs and benefits in this fashion, we can add a dollop of punitive damages to make the costs greater.
3. Punitive damages are necessary in some cases to make sure that people channel transactions through the market when the costs of voluntary transactions are low. We do not want a person to be able to take his neighbor’s car and when the neighbor complains tell him to go sue for its value. Guido Calabresi & A. Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” 85 Harv.L.Rev. 1089, 1124–27 (1972). We want to make such expropriations valueless to the expropriator *35 and we can do this by adding a punitive exaction to the judgment for the market value of what is taken. This function of punitive damages is particularly important in areas such as defamation and sexual assault, where the tortfeasor may, if the only price of the tort is having to compensate his victim, commit the tort because he derives greater pleasure from the act than the victim incurs pain.
4. When a tortious act is concealable, a judgment equal to the harm done by the act will underdeter. Suppose a person who goes around assaulting other people is caught only half the time. Then in comparing the costs, in the form of anticipated damages, of the assaults with the benefits to him, he will discount the costs (but not the benefits, because they are realized in every assault) by 50 percent, and so in deciding whether to commit the next assault he will not be confronted by the full social cost of his activity.
5. An award of punitive damages expresses the community’s abhorrence at the defendant’s act. We understand that otherwise upright, decent, law-abiding people are sometimes careless and that their carelessness can result in unintentional injury for which compensation should be required. We react far more strongly to the deliberate or reckless wrongdoer, and an award of punitive damages commutes our indignation into a kind of civil fine, civil punishment.
Some of these functions are also performed by the criminal justice system. Many legal systems do not permit awards of punitive damages at all, believing that such awards anomalously intrude the principles of criminal justice into civil cases. Even our cousins the English allow punitive damages only in an excruciatingly narrow category of cases. See, e.g., AB v. South West Water Services Ltd., [1993] 1 All E.R. 609 (Ct.App.1992). But whether because the American legal and political cultures are unique, or because the criminal justice system in this country is overloaded and some of its functions have devolved upon the tort system, punitive damages are a regular feature of American tort cases, though reserved generally for intentional torts, including the deliberate use of excess force as here. This suggests additional functions of punitive damages:
6. Punitive damages relieve the pressures on the criminal justice system. They do this not so much by creating an additional sanction, which could be done by increasing the fines imposed in criminal cases, as by giving private individuals—the tort victims themselves—a monetary incentive to shoulder the costs of enforcement.
7. If we assume realistically that the criminal justice system could not or would not take up the slack if punitive damages were abolished, then they have the additional function of heading off breaches of the peace by giving individuals injured by relatively minor outrages a judicial remedy in lieu of the violent self-help to which they might resort if their complaints to the criminal justice authorities were certain to be ignored and they had no other legal remedy.
What is striking about the purposes that are served by the awarding of punitive damages is that none of them depends critically on proof that the defendant’s income or wealth exceeds some specified level. The more wealth the defendant has, the smaller is the relative bite that an award of punitive damages not actually geared to that wealth will take out of his pocketbook, while if he has very little wealth the award of punitive damages may exceed his ability to pay and perhaps drive him into bankruptcy. To a very rich person, the pain of having to pay a heavy award of damages may be a mere pinprick and so not deter him (or people like him) from continuing to engage in the same type of wrongdoing. Zazú Designs v. L’Oréal, S.A., 979 F.2d 499, 508 (7th Cir. 1992) Zazú Designs v. L’Oréal, S.A., supra, 979 F.2d at 508. What in economics is called the principle of diminishing marginal utility teaches, what is anyway obvious, that losing \$1 is likely to cause less unhappiness (disutility) to a rich person than to a poor one. (This point, as the opinion in Zazú Designs emphasizes, does not apply to institutions as distinct from natural persons. Id. at 508–09.)
But rich people are not famous for being indifferent to money, and if they are forced to pay not merely the cost of the harm to the victims of their torts but also some multiple of that cost they are likely to think twice before engaging in such expensive *36 behavior again. Juries, rightly or wrongly, think differently, so plaintiffs who are seeking punitive damages often present evidence of the defendant’s wealth. The question is whether they must present such evidence—whether it is somehow unjust to allow a jury to award punitive damages without knowing that the defendant really is a wealthy person. The answer, obviously, is no. A plaintiff is not required to seek punitive damages in the first place, so he should not be denied an award of punitive damages merely because he does not present evidence that if believed would persuade the jury to award him even more than he is asking.
Take the question from the other side: if the defendant is not as wealthy as the jury might in the absence of any evidence suppose, should the plaintiff be required to show this? That seems an odd suggestion too. The reprehensibility of a person’s conduct is not mitigated by his not being a rich person, and plaintiffs are never required to apologize for seeking damages that if awarded will precipitate the defendant into bankruptcy. A plea of poverty is a classic appeal to the mercy of the judge or jury, and why the plaintiff should be required to make the plea on behalf of his opponent eludes us.
The usual practice with respect to fines is not to proportion the fine to the defendant’s wealth, but to allow him to argue that the fine should be waived or lowered because he cannot possibly pay it. [***] Given the close relation between fines and punitive damages, this is the proper approach to punitive damages as well. The defendant who cannot pay a large award of punitive damages can point this out to the jury so that they will not waste their time and that of the bankruptcy courts by awarding an amount that exceeds his ability to pay.
It ill becomes defendants to argue that plaintiffs must introduce evidence of the defendant’s wealth. Since most tort defendants against whom punitive damages are sought are enterprises rather than individuals, the effect of such a rule would be to encourage plaintiffs to seek punitive damages whether or not justified, in order to be able to put before the jury evidence that the defendant has a deep pocket and therefore should be made to pay a large judgment regardless of any nice calculation of actual culpability. (The judge might not allow this, if persuaded by the suggestion in Zazú Designs that the defendant’s net worth is irrelevant to the size of the award of punitive damages when the defendant is a corporation or other institution rather than an individual.) Individual defendants, as in the present case, are reluctant to disclose their net worth in any circumstances, so that compelling plaintiffs to seek discovery of that information would invite a particularly intrusive and resented form of pretrial discovery and disable the defendant from objecting. Since, moreover, information about net worth is in the possession of the person whose net wealth is in issue, the normal principles of pleading would put the burden of production on the defendant—which, as we have been at pains to stress, is just where defendants as a whole would want it.
Peters argues that a defendant who presents evidence of his net worth to the jury in an effort to minimize any award of punitive damages will be understood by the jury to be conceding the appropriateness of awarding punitive damages in at least the amount suggested by the defendant. This is just the kind of thinking that has so often led defendants into disaster when they decided not to put into evidence their own estimate of the damages to which the plaintiff was entitled, but instead played the equivalent of double or nothing. [c] Most jurors should be able to understand the structure of an argument to the effect that the defendant does not concede liability, let alone liability for punitive damages, but that if the jury disagrees it should award only a nominal amount of punitive damages because the defendant is a person of limited means.
*37 The defendant should not be allowed to plead poverty if his employer or an insurance company is going to pick up the tab. [cc] The contrary argument, accepted in Michael v. Cole, 122 Ariz. 450, 452 (1979), that the insurance contract is a purely private matter between the defendant and his insured, ignores the consequence of such a view for the deterrent efficacy of punitive damages. It is bad enough that insurance or other indemnification reduces the financial incentive to avoid wrongdoing—which is why insuring against criminal liability is prohibited. It would be worse if the cost of the insurance fell, reducing the financial disincentive to engage in wrongful behavior, because the insurance company knew that its insured could plead poverty to the jury.
We were told by Peters’ lawyer without contradiction that Peters will not be indemnified for the punitive damages that he has been ordered to pay. We have noted the inappropriateness of allowing the defendant to plead poverty if he will be indemnified not because such a plea was attempted here, but to underscore the anomaly of requiring plaintiffs seeking punitive damages always to put in evidence of the defendant’s net worth. When the defendant is to be fully indemnified, such evidence, far from being required, is inadmissible. Thus, in some cases it is inadmissible, but in no cases is it required.
AFFIRMED.
Note 1. What is the legal issue in this case? What is the holding?
Note 2. How does Judge Posner describe the interrelationship between the compensatory and punitive functions of damages awards?
Note 3. Are punitive damages efficient, according to Judge Posner? How about fair? Do you agree with his reasoning?
Note 4. Judge Posner offers a theory of punitive damages that suggests interplay between the torts and criminal systems. What do you think, descriptively and normatively, of using tort law as a kind of backstop or complement to criminal law?
Note 5. There are certain predictable pitfalls and areas of confusion involved in punitive damages. One is the use of the word “malice.” Make a mental note now to use and interpret the word differently in each new context in which it arises in your legal education. “Malice” plays a different role in criminal law, and a different role even within tort law, where “actual malice” holds a special meaning for defamation jurisprudence. Another area of complexity in punitive damages involves intent. In setting a higher culpability standard, some states require proof of “willful and wanton” conduct. Iowa, for example, defines that standard as follows:
[T]he actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences [emphasis supplied]. Daughetee v. Chr. Hansen Inc., U.S. District Court Iowa, Western Division, 960 F. Supp.2d 849, 879 (2013)
The language may seem to confound the distinction between negligence and the intentional torts, yet it is important to keep the two domains distinct. First, there are enduring differences in the facts needed to prove the various torts that will continue to make the distinction between these regimes significant. Second, the willful and wanton standard cited above applies to the level of liability, and thus arises in the damages phase of the trial; it does not apply to the fact of liability and its determination is thus not dispositive of the liability phase of the trial. Put another way, a plaintiff may win on liability and receive all the compensatory damages sought but lose on the request for punitive damages.
Check Your Understanding (6-1)
Question 1. True or false: If the defendant’s conduct is malicious (satisfying the “malice,” or “wanton and willful disregard of safety” standard), punitive damages will definitely be granted.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. True or False: Specific intent—the intent to cause harm in the realm of intentional torts—satisfies the standard required for punitive damages in most states.
The original version of this chapter contained H5P content. You may want to remove or replace this element. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/06%3A_Damages/6.01%3A_Punitive_Damages.txt |
(614 So.2d 714)
[Recall the fact pattern from this case covered in Module 2 under Intent.]
Villa sustained second degree burns to his penis, scrotum, and both thighs. He was first seen by Dr. James Falterman, Sr. on May 8, 1986, who hospitalized him from May 8, 1986, through May 16, 1986. Dr. Falterman testified that Villa was reasonably comfortable, with pain medication and treatment, within three (3) to four (4) days and, at a maximum, within one (1) week after the accident. Villa’s physical wounds healed completely, with some depigmentation, but no functional disability. He was discharged from treatment of his burns as of June 20, 1986.
Villa complained of being nervous and depressed on May 15, of 1986, and requested to see a psychiatrist. Villa was referred by Dr. Falterman to Dr. Warren Lowe, a clinical psychologist, who first saw Villa on June 9, 1986. Dr. Lowe diagnosed Villa as suffering from atypical anxiety disorder with depressive features together with some symptoms of post-traumatic stress disorder. At the time of trial, Dr. Lowe felt that Villa was getting better and was capable of entering a rehabilitation program.
Dr. Lowe’s partner, Dr. Jim Blackburn, was offered as an expert in psychiatry. He saw Villa in August of 1986 and again, saw Villa and his wife on January 26, 1988. He diagnosed Villa as suffering from a major depression with some elements of post-traumatic stress. He felt that Villa was a very good candidate for rehabilitation and believed that Villa would make a good recovery and be able to resume a normal functional life. At the time of trial, in April of 1990, Villa had not, as yet, returned to work and remained nervous about returning to work.
Total medicals paid by Liberty Mutual, the worker’s compensation insurer of M.A. Patout and Sons, Inc., Villa’s employer, up to the time of trial were \$14,300.00.
Glenn Hebert, a vocational rehabilitation specialist, testified that Villa was ready for and would need several years of rehabilitation counseling and/or retraining to build up his self-esteem and self-respect, and to recover from his loss of trust in people. He testified that a vocational school would cost approximately \$2,000.00 for two (2) years, while concurrent counseling would cost about \$900.00 per month, which would total \$21,600.00 for twenty-four (24) months of counseling. This would total \$23,600.00 for rehabilitation. Hebert also testified that Villa needs to go to work but would recommend conditions where he can work part-time, alone or with one other person.
Dr. Cornwell, an expert economist, testified that Villa has suffered a \$57,907.00 loss of earnings from the date of the accident until trial. This figure is based upon an annual pre-accident wage of \$14,772.00 per year. If Villa works, as recommended by Hebert, for twenty-five (25) hours per week at \$4.25 per hour, assuming a two (2) *720 year rehabilitation period, he would have an additional loss of \$18,500.00.[1]
At the time of the accident, Villa was earning \$5.75 per hour and should be able to earn that or more with the benefit of two (2) years of rehabilitation. Thus, Villa’s total special damages would be:
Medicals
\$14,300.00
Loss of wages:
Pre-trial
\$57,907.00
Post-trial
\$18,500.00
Total Rehabilitation
\$23,600.00
TOTAL SPECIAL DAMAGES
\$114,307.00
We find that a reasonable general damage award for Villa’s past and future physical and mental pain and suffering would be \$60,000.00.
CONCLUSION
The jury’s verdict finding that Michael Derouen did not commit an intentional tort is hereby reversed.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Eusebio Villa and against Michael Derouen and Louisiana Farm Bureau Mutual Insurance Company, Derouen’s homeowner insurer, in the amount of ONE HUNDRED FOURTEEN THOUSAND THREE HUNDRED SEVEN AND NO/100 (\$114,307.00) DOLLARS in special damages and SIXTY THOUSAND AND NO/100 (\$60,000.00) DOLLARS in general damages. Judicial interest and costs at trial and on appeal to be paid by Michael Derouen and Louisiana Farm Bureau Mutual Insurance Company.
Note 1. The role of insurance companies can be significant in both the liability and damages phase of trial. What is the significance of the insurance company’s role in this case?
Note 2. What do you observe about the determination of special versus general damages? Damage determinations are not meant to be binding on subsequent courts. Courts are guided, of course, by evidence the parties submit regarding damages. However, in some sense, courts or juries come up with the final award amounts “from scratch” in each case since they do not start with prior verdicts or rulings. Courts and trial lawyers may also consult something called a “Schedule of Loss” used in each state to determine the compensation under Workers Compensation claims. It typically lays out the guidelines and amounts for typical injuries so that each time a person suffers a catastrophic loss of a thumb or leg, for instance, the calculations of impact on a person’s life do not have to begin entirely anew. The loss schedules will require actuarial adjustment and tailoring to a given case, and they may not be admissible directly, depending on the case and jurisdiction. But they may nonetheless play a role in shaping litigation strategy and outcomes.
The aim of “making the plaintiff whole” reflects tort law’s compensation principle, as well as the fiction that money can ever really achieve such a goal. Money damages are usually a very distant second-best option. Even assuming a good-faith desire to try to restore to the plaintiff the state they were in before the tortious conduct, the question of how to do that possesses its own complexities, logistically, and philosophically. What gets counted, who measures and proves that, and what sorts of socioeconomic assumptions and biases influence the process? All of these considerations come to bear in the following FTCA case featuring a woman who was negligently dispensed with a drug that quickly led to her death.
(Not Reported in F. Supp.) (1996 WL 776585)
*1 Plaintiff, Steven F. Zuchowicz, brought this wrongful death action as Executor of the estate of his deceased wife, Patricia Zuchowicz, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”). Plaintiff alleged that his wife developed primary pulmonary hypertension (“PPH”) and died as a result of ingesting an excessive amount of the drug Danocrine, dispensed to her at the Naval Submarine Base Naval Hospital in Groton, Connecticut.
This matter was tried to the Court for 16 days principally on the issue of proximate cause.[2] At trial, defendant conceded that its agents or employees negligently prescribed an overdose of Danocrine to the plaintiff’s decedent but denied that this negligence caused her to develop PPH. On July 8, 1996, the Court issued a Memorandum of Decision entering Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a) finding that plaintiff met his burden of demonstrating that defendant’s negligence caused the decedent’s PPH. The Court instructed the parties to file supplemental briefs regarding damages.
Plaintiff seeks damages for medical and funeral expenses, plaintiff’s decedent’s conscious pain and suffering, lost wages, lost earning capacity and compensation for destruction of life’s enjoyment. In ruling on the damages to be awarded plaintiff, the Court incorporates its Findings of Fact and Conclusions of Law dated July 8, 1996.
Under the FTCA, damages are determined in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). Here, the law of Connecticut governs the issue of damages, specifically Conn. Gen. Stat. § 52-555, which creates a cause of action belonging to the decedent during her lifetime which passes to the executor or administrator by right of survival. [***]
Section 52-555 provides in relevant part that an executor or administrator, “may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses….” “Just damages” include: (1) damages for lost earning capacity less deductions for taxes and necessary living expenses, and discounted to present value; (2) damages for conscious pain and suffering; and (3) compensation for the loss of the capacity to enjoy life’s activities in a way the decedent would have had she lived. [c]
There is no mathematical formula or ironclad rule for assessing damages in a wrongful death case. Id. at 657. The trier of fact is required to take all of the evidence and make an intelligent estimate of the appropriate damages. [c] Since no one life is like another, comparing damage awards from other wrongful death cases serves no useful purpose: “the damages for the destruction of one furnish no fixed standard for others.” Id. at 661.
Medical and Funeral Expenses
*2 The parties stipulated at trial that plaintiff incurred funeral and “noncovered” medical expenses of \$29,203.51. By the phrase “noncovered,” the Court is referring to medical expenses not paid by CHAMPUS, Mrs. Zuchowicz’s medical insurance carrier. Based on the parties’ agreement and the reasonableness of this amount, the Court will award funeral and non-covered medical expenses in the amount of \$29,203.51.
Lost Wages
Plaintiff seeks lost wages in the amount of \$15,193.46 for the time period between February 18 1989, when Mrs. Zuchowicz was prescribed Danocrine, and December 31, 1991, the date of her death, approximately 34.5 months. Plaintiff arrives at this amount of lost wages by calculating Mrs. Zuchowicz’s average monthly earnings for the years 1987 and 1988 and multiplying this figure by 34.5 months.
Defendant argues that there is no evidence before the Court to reasonably infer Mrs. Zuchowicz’s past wages. To the contrary, the record reveals that Mrs. Zuchowicz was a high school graduate and attended community college for less than one year. In 1987, after training, she became a nurse’s aide working both full-time and part-time hours until January 1989. Also, prior to trial the parties stipulated in their proposed stipulations of fact (doc. # 143) that Mrs. Zuchowicz’s earnings for 1987 and 1988 were \$4301.14 and \$6268.16, respectively. These amounts average out to \$5,284.65 per year or \$440.39 per month. Finally, Mrs. Zuchowicz testified that she was physically incapable of continuing her work as a nurse’s aide after February 18, 1989.
This evidence is sufficient guidance for the Court to determine lost wages. Proof to a mathematical certainty is not required; only evidence that lays a foundation from which the factfinder can estimate a proper award. Delott v. Roraback, 179 Conn. 406, 411 (1980). The Court finds appropriate damages for lost wages in the amount of \$15,193.46.
Lost Earning Capacity
In determining a proper award for lost earning capacity in a wrongful death case, the court must inquire into a decedent’s capacity or capability to obtain gainful employment at the time of their death and for the remainder of their life. The court may take into consideration the decedent’s earnings history, qualifications and experience. From this amount the court must deduct decedent’s probable income tax liability, personal living expenses, and discount the award to its present cash value. …
Plaintiff has submitted with his brief on damages, the U.S. Department of Health and Human Services, Public Health Service, National Center for Health Statistics, Vital Statistics of the U.S., Vol. II, Sec. 6, as applied in 1988. The Court takes judicial notice from these statistics that plaintiff’s decedent, a white female of 31 at the time of her death, had a potential life expectancy of 49.2 years and a work life expectancy of 34 years, or until age 65.
*3 Plaintiff seeks damages for lost earning capacity in the amount of \$89,839.05. In arriving at this amount, plaintiff assumes a base lost earning capacity of \$179,678.10 (\$5,284.65 per year X 34 years). This base amount does not take into account any potential savings from increased earnings or inflation. Plaintiff has then reduced this amount by half to account for potential income tax liability, discounting to present value, personal living expenses and any likelihood that Mrs. Zuchowicz may have left the workplace to care for her children. The Court finds that this is a fair estimate and awards damages for lost earning capacity in the amount of \$89,839.05.
Pain and Suffering
Plaintiff seeks \$1,040,718 for Mrs. Zuchowicz’s pain and suffering from February 18, 1989 to December 31, 1991. Plaintiff calculates this award based on the amount awarded by this Court in Parkins v. United States, 842 F. Supp. 617, 619-621 (D. Conn. 1993), another FTCA case. However, as the Court noted earlier, comparing awards in other cases serves no useful purpose.
An award for pain and suffering is appropriate in a medical negligence case where evidence has been presented in support. [***] Here, damages for pain and suffering are appropriate.
When initially taking Danocrine, Mrs. Zuchowicz experienced night sweats, a racing heart, chest pains, dizziness and headaches. During the summer of 1989, she continued to have fatigue and chest tightness and pain and began experiencing shortness of breath, which became progressively worse. Mrs. Zuchowicz was diagnosed with PPH in October 1989 after a nine-day hospital stay and several tests, including a pulmonary artery catheterization. She was told she would need a heart and lung transplant. She was treated with Procardia XL, a calcium channel blocker, to which she responded well.
Although aware of her diagnosis and treatment, she testified that she did not learn that her disease was terminal until several months later when she read Dr. Michael Shea’s memorandum dated October 14, 1989. This report stated that Mrs. Zuchowicz’s prognosis was very poor and that death commonly occurred in patients with PPH within 2-3 years of diagnosis.
After an extensive evaluation and medical screening at the Cleveland Clinic in June 1990, Mrs. Zuchowicz was put on a lung transplant list. She was also informed at that time that she could suffer a sudden death. She underwent counseling to assist her in coping with her condition.
Mrs. Zuchowicz testified that during this time she was able to avoid physical pain and breathe without significant difficulty by limiting her physical activity and avoiding humid conditions. She was unable to participate in any sports activities as she previously had or even climb stairs. She could do light housekeeping, read and garden. In May 1990, she and her husband took a trip to Atlantic City and, several months later, they took a foster child into their home.
*4 Despite past problems with infertility, Mrs. Zuchowicz became pregnant in March 1991. Her physicians advised her that the pregnancy would exacerbate her illness, reduce her lifespan and temporarily disqualify her as a candidate for a lung or heart transplant. During her pregnancy, Mrs. Zuchowicz suffered from numerous complications. While in her third trimester, she began to get increasingly short of breath and blacked out as many as five times a day. On November 21, 1991, Mrs. Zuchowicz delivered a baby boy by Cesarian section approximately 4 ½ weeks early.
On December 17, 1991, Mrs. Zuchowicz’s pulmonary condition worsened and she was admitted into the Cleveland Clinic on December 20, 1991, in the hopes of undergoing a single lung transplant. While hospitalized Mrs. Zuchowicz experienced among other things, nausea and hallucinations as well as depression over her inability to care for her child. Her condition became progressively worse and on the morning of December 31, 1991 she was intubated. She died later that afternoon.
Taking into account all of the above factors, the Court finds that an award of \$350,000.00 is reasonable compensation for Mrs. Zuchowicz’s pain and suffering.
Loss of Life’s Activities
Plaintiff seeks an award of \$4,930,493 for Mrs. Zuchowicz’s loss of life’s activities, specifically in enjoying her marriage and rearing her son. This amount is again based on the amount awarded in Parkins.
Determining damages for the loss of life’s activities “with any exactness is … beset with insurmountable difficulties. The law, nevertheless, undertakes to do justice as best it can, although of necessity crudely.” Lane v. United Elec. Light & Water Co., 90 Conn. 35, 37 (1915). Damages are essentially limited to the probable length of life of the deceased had she not died. The trier must also consider the extent to which the “ordinary vicissitudes of life” would have likely affected the decedent’s continued enjoyment of her life. Chase v. Fitzgerald, 132 Conn. at 469.
By having a child, Mrs. Zuchowicz was able to fulfill her dream of becoming a mother. Due to her untimely death, she was deprived of participating in the rearing of her son. She was also unable to continue her relationship with her husband which, despite many difficulties in the past, became closer during her illness.
The Court finds that damages in the amount of \$550,000 is an appropriate award to compensate for Mrs. Zuchowicz’s loss of life’s activities.
Based on foregoing [sic], damages shall be awarded in the following amounts:
Medical and Funeral Expenses \$29,203.51
Lost Wages \$15,193.46
Lost Earning Capacity \$89,839.05
Pain and Suffering \$350,000.00
Loss of Life’s Activities \$550,000.00
Total: \$1,034,236.02
The Clerk is directed to enter judgment in favor of plaintiff accordingly.
Note 1. In your estimation, does tort law take a reasonable approach to determining damages associated with loss of enjoyment of life, and loss of companionship? These so-called “hedonic damages” are intended to try to put a dollar value on the pleasures of a life lived without the intrusion of tortious injury. What occurs to you about how they seem to operate, and what do you think they fail to capture?
Note 2. The court notes that “[b]y having a child, Mrs. Zuchowicz was able to fulfill her dream of becoming a mother. Due to her untimely death, she was deprived of participating in the rearing of her son.” What do you think of the court’s reasoning here? Does it seem unreasonable to plan for a pregnancy and a child in light of significant, known health complications (even if these have been induced by someone else’s tortious conduct)? Who should be accountable for her inability to accept a lung transplant when it became available? Is this an eggshell plaintiff type of situation? Or does it seem reasonable to wish to impose limits on such a pregnancy on the basis of tort law? Did Mrs. Zuchowicz have a duty to mitigate here, even though she was the victim of wrongdoing?
Does the court’s rhetoric reflect any bias, in your view? Do you think that the ruling would have come out the same way, and/or sounded the same in rhetoric and tone, had a same-sex couple taken great pains to fulfill a dream of becoming parents, with the same basic facts in the background? Should it matter whether parties dream of becoming parents or not, when tabulating and allocating damages? If the opinion can be accused of naturalizing a heteronormative view of the world with fixed notions of gender (e.g. women dream of having babies; it’s tragic if they can’t), should we worry about whether courts will misalign with a world in which gender increasingly needs to be understood as fluid? Should gender roles continue to be allowed to carry the same weight and meanings as they may once have, in light of present understandings of gender? What can tort law do to address such concerns and questions?
The case was upheld on appeal, Zuchowicz v. U.S., 140 F.3d 381, 391-392 (1998). The court made only the briefest mention of her pregnancy: “Mrs. Zuchowicz was on the waiting list for a lung transplant when she became pregnant. Pregnant women are not eligible for transplants, and pregnancy exacerbates PPH. Mrs. Zuchowicz gave birth to a son on November 21, 1991. She died one month later, on December 31, 1991.” Id. at 384.
1. \$14,770.00 pre-accident annual wage offset by \$5,524.00 per year earned equals an annual loss of \$9,250.00 per year.
2. Editor’s Note: the trial took “16 days principally on the issue of proximate cause.” If you’re wondering why we talk about burden-shifting mechanisms, shortcuts to establish negligence, and–most crucially—about whether to limit liability as a matter of duty (Palsgraf’s majority) versus doing so as a function of proximate cause (Palsgraf’s dissent), this is it, in a nutshell. Facts are resource-intensive to litigate, and juries are resource-intensive to empanel and instruct. 16 days of trial is a long, expensive thing to engage in even when there’s a really compelling case involved. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/06%3A_Damages/6.02%3A_Compensatory_Damages.txt |
Many states have passed statutes that create mandatory maximums or “caps” on the damages that victims in civil lawsuits may recover. In several states, the statutes were found unconstitutional (and in a subset of those, the statutes were amended and passed again after being found unconstitutional). The majority (42 states plus the District of Columbia) have no caps in personal injury cases and products liability cases. Only 22 (plus the District of Columbia) have no caps in medical malpractice lawsuits. Statutory caps frequently focus on establishing limits to general (noneconomic) damages although in the medical context some statutes are sometimes drafted more broadly to limit special damages as well. By far the most common limits, however, are generally on compensation for noneconomic damages, which include disfigurement, permanent disability, mutilation, loss of a limb, trauma, sexual or reproductive harm and other types of pain and suffering. Anything that has had or will continue to have a challenging or negative effect on the plaintiff and that was caused by the tortious conduct and not otherwise accounted for in financial terms can count.
The next case applies Maryland’s cap on statutory damages for the loss of a beloved family pet and clarifies the issue of whether the statute permits recovery for non-economic damages pursuant to the loss.
(Only the Westlaw citation is currently available) (2021 WL 2306720)
This case affords us the opportunity to address the scope of compensatory damages available in the case of the tortious injury or death of a pet. Resolution of that issue requires our examination of the text of Md. Code Cts. & Jud. Proc. (“CJP”) § 11-110. The General Assembly enacted CJP § 11-110 to allow pet owners to recover certain capped damages for the death or injury of their pet as a result of a tort. We are asked to determine whether a pet owner may recover other forms of compensatory damages not expressly included within that statute. We must also address the separate question of whether there was sufficient evidence of gross negligence in this case.
These questions stem from Anne Arundel County Police Officer Rodney Price’s fatal shooting of a family dog while carrying out his duties as a police officer. On February 1, 2014, Officer Price encountered Respondent Michael Reeves’ dog, Vern, a Chesapeake Bay retriever, in the front yard of Mr. Reeves’ home. Evidently believing he would be attacked, Officer Price shot Vern twice. The dog died soon thereafter. Mr. Reeves subsequently brought suit alleging, inter alia, that by fatally shooting Vern, Officer Price committed a trespass to Mr. Reeves’ chattel, acted with gross negligence, and violated Mr. Reeves’ rights under Articles 24 and 26 of the Maryland Declaration of Rights.
The case went to trial before a jury in the Circuit Court for Anne Arundel County. The jury returned a verdict in favor of Mr. Reeves, finding that Officer Price committed a trespass to Mr. Reeves’ chattel, acted with gross negligence, and violated Mr. Reeves’ constitutional rights under Articles 24 and 26 of the Maryland Declaration of Rights. The jury awarded no damages for the constitutional violations, \$10,000 for the trespass to chattel claim, and \$500,000 in economic damages and \$750,000 in noneconomic damages for the gross negligence claim. The circuit court then reduced the gross negligence damages to \$200,000 pursuant to the Local Government Tort Claims Act (“LGTCA”). CJP § 5-301 et seq. The circuit court also reduced the trespass to chattel damages to \$7,500 pursuant to the then-applicable damages cap in CJP § 11-110.[1]
*2 On appeal, the Court of Special Appeals affirmed in part and held in an unreported divided decision that CJP § 11-110 did not bar Mr. Reeves from recovering noneconomic damages related to the death of his dog. The same majority also held that there was legally sufficient evidence to support the jury’s verdict that Officer Price acted with gross negligence.
For reasons that follow we hold that CJP § 11-110 limits the recovery for compensatory damages to the amount specified by that statute and does not allow for recovery of noneconomic compensatory damages stemming from the tortious injury or death of a pet. In addition, we hold that there was legally sufficient evidence to support the jury’s finding that Officer Price was grossly negligent in the fatal shooting of Vern. However, under the single recovery rule, we also hold that Mr. Reeves may not recover any damages under the gross negligence claim. Accordingly, we reverse in part and affirm in part the judgment of the Court of Special Appeals.
On February 1, 2014, as part of an ongoing investigation into a spate of burglaries in a residential neighborhood in Anne Arundel County, Officer Price was going door-to-door seeking relevant information. Officer Price, the only witness to the events that ensued immediately thereafter, would later testify at trial to the following. At approximately 4:45 p.m., Officer Price approached Mr. Reeves’ residence from the house next door. He saw a light on inside and noticed that some of the windows were open. [***] Officer Price determined from those indicators that the house was occupied at the time. He testified that he had no reason to believe that any member of the Reeves family had any involvement with the burglaries and he did not have any “cause for concern” as he approached the house.
Officer Price walked onto the front porch of Mr. Reeves’ home and knocked on the closed door. When no one answered, he left the porch and headed towards Mr. Reeves’ driveway, where he stood with his back to the house. As he was taking notes in his notepad, Officer Price heard the sound of a door behind him. He turned around and saw a dog “coming at” him from about five feet away. According to Officer Price, the dog was growling and barked once.
Officer Price testified that he put his left forearm up at “roughly” the level of his neck as the dog approached. Officer Price stated that the dog placed its front paws on his forearm for about one second. He recalled taking one step back and pushing the dog away from him. Afraid that the dog was going to attack his face, Officer Price testified that he shot the dog twice while the dog’s paws were still on his left arm. The dog then made a screeching noise and limped across the yard, where the dog collapsed. After the shooting, Officer Price informed dispatch of what happened, saying “a dog came at me.” According to Officer Price, the dog did not bite or scratch him during the incident.
Officer Price is 5’8” and, at the time of the incident, weighed about 250 pounds. He testified that he had a taser, baton, and mace on his person at the time. Furthermore, he admitted that he did not vocalize any commands to the dog. At the time of the incident, Officer Price had been a sworn officer for less than a year.
*3 Shortly after the shooting Mr. Reeves exited the house, approached Officer Price, and asked him what had happened. [***] Mr. Reeves testified that he then stepped forward and Officer Price responded by drawing his firearm. With his hand on the weapon, Officer Price told Mr. Reeves: “Stop. Don’t take another step.”[2] Mr. Reeves then turned around and rushed to where his dog Vern had collapsed on the other side of the yard and was curled up beneath the neighbor’s fence. Mr. Reeves proceeded to administer CPR to Vern.
Additional officers arrived at the scene, and Officer Price returned to headquarters. Mr. Reeves testified that he believed that Vern died on the scene, but his son, Michael Reeves Jr., drove Vern to a nearby veterinary hospital where the dog was confirmed dead.[3]
On September 24, 2015, Mr. Reeves and his sons, Michael Jr. and Timothy, filed a complaint asserting thirteen claims against Anne Arundel County (the “County”), Anne Arundel County Police Chief Kevin Davis, and Officer Price. [fn] The claims that ultimately proceeded to trial against the County and Officer Price (“Petitioners”) were: (1) trespass to chattel; (2) violation of Mr. Reeves’ constitutional rights under Article 24 of the Maryland Declaration of Rights for the unlawful shooting of his dog; (3) violation of Mr. Reeves’ constitutional rights under Article 26 of the Maryland Declaration of Rights for the unlawful seizure of the dog; and (4) gross negligence.
Trial in the circuit court began on May 4, 2017. Mr. Reeves’ counsel called Officer Price as an adverse witness. Officer Price had previously stated in a deposition that because the dog’s paws were muddy, paw prints covered his uniform. He had also stated during the deposition that he had dirt on both of his shoulders and on his badge. At trial, counsel for Mr. Reeves introduced photographs that the police department took shortly after the incident. When shown the photographs, one of which was magnified 300 times, Officer Price admitted that there was no mud or dirt from the dog’s paws on his upper body or badge. He further acknowledged that the photographs showed mud on the thigh area of his pants. He also admitted that there were no cuts or scratches on his forearm or tears in his uniform.
Mr. Reeves’ counsel then played a video deposition of the testimony of an out-of-state witness, Dr. Kevin Lahmers, a veterinary pathologist at the Virginia-Maryland College of Veterinary Medicine. [***]
*4 Dr. Lahmers explained that Vern weighed around 75 pounds and, based on images of the dog, if standing on hind legs Vern would only reach the stomach or mid-abdomen of an adult man of average height. Dr. Lahmer’s testimony was thus at odds with Officer Price’s account that Vern could have reached the height of the officer’s neck while the dog’s front paws were on the officer’s forearm.
Mr. Reeves’ son Timothy then took the stand and explained that his father had purchased Vern as a puppy in 2009. According to Timothy, Vern was intelligent, playful, sweet, and a quick learner. He testified that Vern had not displayed aggression towards other pets or people, including children, and Vern had no problems with large crowds in the neighborhood park. Mr. Reeves’ other son, Michael Jr., testified that Vern was a member of their family.
After the testimony of his two sons, Mr. Reeves took the stand. He stated that he became interested in training dogs while stationed in Afghanistan.[4] Mr. Reeves explained that he purchased Vern for \$3,000 with the goal of eventually breeding Chesapeake Bay retrievers. He took a year off from work to train the dog. Mr. Reeves taught Vern voice commands, silent commands, and water training. Mr. Reeves testified that Vern “was my best friend in the world, period.” Mr. Reeves also testified that he was taking medication to cope with the loss of Vern. He stated that he no longer had any plans to breed Chesapeake Bay retrievers. Timothy testified that his father moved from Maryland to California after Vern was killed, and that the family “had all left because that incident for my father has just destroyed him.”
At the close of trial, the circuit court denied the Petitioners’ motion for judgment as to Mr. Reeves’ claims under Articles 24 and 26. The court submitted those claims, along with the trespass to chattel and gross negligence claims, to the jury. The circuit court foreclosed the availability of punitive damages, though, by granting the Petitioners’ motion for judgment on the issue of actual malice and punitive damages.
After deliberating for approximately one hour and thirty minutes, the jury returned the verdict finding that Petitioners had violated Mr. Reeves’ constitutional rights under Articles 24 and 26 of the Maryland Declaration of Rights, Officer Price had acted with gross negligence, and he had committed a trespass to Mr. Reeves’ chattel.
The jury found a violation of Mr. Reeves’ due process rights under Article 24 by depriving him of his dog. However, the jury awarded him \$0 in damages for that constitutional claim. The jury further found that Officer Price had violated Mr. Reeves’ constitutional rights under Article 26 by “seizing” Vern and/or interfering with the use or enjoyment of the dog. The jury likewise awarded Mr. Reeves \$0 in damages for that constitutional claim. As to both constitutional claims, the jury also found that Officer Price did not act with “ill will or improper motivation.”[5]
*5 The jury then found that Officer Price was grossly negligent and awarded Mr. Reeves \$500,000 in economic damages and \$750,000 in noneconomic damages, for a total of \$1,250,000. Finally, for the trespass to chattel claim, the jury awarded Mr. Reeves \$10,000 in economic damages. The jury also made a factual finding on the verdict sheet that the dog was not attacking Officer Price at the time of the shooting.
On May 18, 2017, Petitioners filed a motion for judgment notwithstanding the verdict, remittitur, and/or a new trial. The circuit court denied the motion in full. The circuit court then reduced the jury award for trespass to chattel from \$10,000 to \$7,500, pursuant to CJP § 11-110. The court further reduced the total damages award for the gross negligence claim from \$1,250,000 to \$200,000 pursuant to the LGTCA, resulting in Mr. Reeves receiving a total of \$207,500 in damages. Petitioners appealed to the Court of Special Appeals.
The Court of Special Appeals affirmed in part and vacated in part the judgment of the circuit court in a divided unreported opinion. Reeves v. Davis, No. 1191, Sept. Term 2018, 2019 WL 5606605 (Oct. 30, 2019). The majority held that CJP § 11-110 did not limit Mr. Reeves’ total available damages to the capped amount stated in the statute. The majority reasoned that Brooks v. Jenkins, a reported Court of Special Appeals opinion also addressing the fatal shooting of a dog by a police officer, was controlling. Reeves, 2019 WL 5606605, at *9; see Brooks, 220 Md. App. 444 (2014). The majority explained that:
The County … asks that we distinguish Brooks from this case because the jury did not award Reeves any damages for the County’s constitutional violations, whereas the jury in Brooks did. However, … Brooks stands for the proposition that CJP § 11-110 does not bar recovery for non-economic damages, at least when the tortfeasor has been grossly negligent.
Reeves, 2019 WL 5606605, at *9. The majority also held that the jury was provided legally sufficient evidence to support its finding that Officer Price had acted with gross negligence. Id. at *13.
Judge Friedman dissented, disagreeing with the majority on both issues. He interpreted CJP § 11-110 as limiting all available compensatory damages, including noneconomic damages, to the capped amount provided in the statute when the injury is to a pet. Id. at *14 (Friedman, J., dissenting). Given that the jury awarded no damages for the constitutional violations, under the one injury, one recovery rule, the only injury for which Mr. Reeves could recover compensatory damages was the death of his dog Vern, which is capped by the statute. Id. at *13–14 (“Calling Mr. Reeves’ claims by different names—trespass to chattel, negligence, gross negligence, or even an intentional tort—doesn’t change the analysis: there is still just one injury.”) (citation omitted). Judge Friedman also would not have found that there was sufficient evidence to support a finding of gross negligence. Id. at *14 n.2.
On appeal to this Court, Petitioners present the following questions for review:
1) As a matter of first impression, does [CJP § 11-110] limit the amount of damages recoverable for negligently causing the death of a pet?
2) Did the Court of Special Appeals err in finding sufficient evidence of gross negligence?
We affirm the holding of the Court of Special Appeals that there was sufficient evidence to support the jury’s finding of gross negligence. However, we reverse on the statutory construction issue and hold that CJP § 11-110 limits the recovery for compensatory damages to the amount specified by the statute and does not allow recovery for noneconomic damages stemming from the tortious injury or death of a pet.
A. Statutory Construction of CJP § 11-110
*6 We are tasked with construing CJP § 11-110 to determine whether, as a matter of first impression before this Court, at the time of the incident the statute limited the recovery of all compensatory damages to \$7,500 when a pet is tortiously injured or killed. Statutory interpretation is a question of law reviewed de novo by this Court. Brown v. State, 454 Md. 546, 550 (2017). [***]
We start with the text of CJP § 11-110. At the time of the incident, the statute provided in full:
(a) Definitions. — (1) In this section the following words have the meanings indicated.
(2) “Compensatory damages” means:
(i) In the case of the death of a pet, the fair market value of the pet before death and the reasonable and necessary cost of veterinary care; and
(ii) In the case of an injury to a pet, the reasonable and necessary cost of veterinary care.
(3) (i) “Pet” means a domesticated animal.
(ii) “Pet” does not include livestock.
*7 (b) Measure of damages. — (1) A person who tortiously causes an injury to or death of a pet while acting individually or through an animal under the person’s direction or control is liable to the owner of the pet for compensatory damages.
(2) The damages awarded under paragraph (1) of this subsection may not exceed \$7,500.
Petitioners contend that CJP § 11-110 applies to all torts, defines the types of compensatory damages a pet owner can recover, and limits those damages to the capped amount. In support of this argument, Petitioners refer to the statute’s structure, which defines compensatory damages in the case of the death or injury of a pet, provides when a pet owner is entitled to those compensatory damages, and caps damages recoverable under the statute.
Mr. Reeves argues that, given the statute’s unique definition of compensatory damages, the damages cap pertains only to reasonable and necessary veterinary care expenses and the pet’s fair market value. Mr. Reeves asserts that nothing in the statute expressly limits the recovery of other possible types of damages, including pain and suffering or lost wages. He notes that the 2005 amendment removed the words “[t]he measure of damages … is” from the 1999 version and replaced them with “[a] person who tortiously causes an injury to or death of a pet … is liable to the owner of the pet for compensatory damages,” as defined in the statute. Mr. Reeves argues that this indicates that the Legislature amended the statute in 2005 to allow for the recovery of noneconomic damages.
We disagree with Mr. Reeves’ reading of the statute. The meaning of CJP § 11-110 is plain. CJP § 11-110(b)(1) provides that “[a] person who tortiously causes an injury to or death of a pet while acting individually or through an animal under the person’s direction or control is liable to the owner of the pet for compensatory damages.” Although “tortiously” is not defined in the statute, negligence, gross negligence, and trespass to chattel are torts. As such, the statute applies to cases of gross negligence and trespass to chattel where the injury is to a pet.
“Maryland has long accepted the doctrine of expressio (or inclusio) unius est exclusio alterius, or the expression of one thing is the exclusion of another.” Comptroller v. Blanton, 390 Md. 528, 537, 890 A.2d 279 (2006). Under the statute, “ ‘Pet’ means a domesticated animal” and “does not include livestock.” CJP § 11-110(a)(3)(i)–(ii). The statute’s definition of “Compensatory damages” in the case of the death of a “Pet” expressly states two things: “the fair market value of the pet before death” and “the reasonable and necessary cost of veterinary care.” Id. § 11-110(a)(2)(i). Additionally, the definition uses the word “means,” indicating that the Legislature intended for the list to be exhaustive. Id. § 11-110(a)(2) [***].
The text evinces legislative intent to allow for certain, defined compensatory damages in the case of the tortious death or injury of a pet. Noneconomic damages, such as mental anguish and loss of companionship, are not included in the exhaustive definition of compensatory damages. As such, noneconomic damages are unavailable under the plain meaning of CJP § 11-110. The statute goes on to limit the recovery of damages under the statute to the capped amount. CJP § 11-110(b)(2).
*8 We do not read the plain language of CJP § 11-110 in a vacuum. Analogous damages cap provisions in Title 11 of the Courts and Judicial Proceedings Article confirm our understanding of the text’s plain meaning. Maryland’s Wrongful Death Act provides a statutory cause of action for the recovery of certain economic and noneconomic compensatory damages in the case of the wrongful death of a person and strictly limits beneficiaries to spouses, parents, and children. See CJP § 3-904. CJP §§ 11-108 and 11-109 define and cap the availability of noneconomic and economic damages in the case of wrongful death or personal injury. The General Assembly has thus expressly provided for the recovery of noneconomic damages when a person has been wrongfully killed. See CJP § 11-108(a)(2)(i) (“ ‘Noneconomic damages’ means: … In an action for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care … or other noneconomic damages authorized under Title 3, Subtitle 9 of this article.”). In contrast, CJP § 11-110 does not expressly provide for similar damages in the case of the wrongful death of a pet. [***]
In other words, CJP § 11-110’s relationship with other laws in Title 11 of the same Article does not support the anomalous result that legislative silence on the recovery of noneconomic damages for the wrongful death of pets means that they are available when the Legislature has capped recovery of those damages in the case of the wrongful death of people. Mr. Reeves’ reading of the statute would allow, for example, for the recovery of millions of dollars in uncapped noneconomic damages in a case involving veterinary malpractice, while noneconomic damages in a medical malpractice case remain capped. To read CJP § 11-110 in this way would produce absurd results.[6]
It would also be illogical for CJP § 11-110 to apply a cap solely on damages related to fair market value and reasonable and necessary veterinary expenses, while allowing pet owners to recover an unlimited amount of other compensatory damages for their emotional loss. Fair market value and veterinary expenses are much more easily susceptible to calculation in monetary terms than are seemingly unlimited damages for emotional pain and suffering. Indeed, in this case the jury awarded Mr. Reeves, in addition to the maximum amount allowable under CJP § 11-110 of \$7,500, noneconomic damages equal to 100 times that amount.[7]
*9 If the General Assembly’s goal was to cap compensatory damages for pet owners, how strange for it to do so exclusively with respect to such a narrowly defined subset thereof. Doing so would have left all other forms of compensatory damages both uncapped and without guidelines for calculation. Unlike the Wrongful Death Act, the General Assembly did not provide a formula in CJP § 11-110 for quantifying emotional loss in the situation of the wrongful death of a pet. Our reading of CJP § 11-110 in light of the Wrongful Death Act provisions confirms our understanding that such damages are unavailable in the case of the tortious injury to or death of a pet. Certainly, the General Assembly knows how to expressly provide for noneconomic damages when it wants to, as it did with respect to the damages under the Wrongful Death Act.
[***][A]n award for compensatory damages must be anchored to a rational basis on which to ensure that the awards are not merely speculative.” [c]
Punitive damages are designed to accomplish another goal entirely—to punish the wrongdoer for particularly egregious or heinous conduct and to deter others from following suit. [c] When the trial court in this case granted the Petitioners’ motion on the issue of actual malice and punitive damages, it precluded the jury from awarding them to Mr. Reeves.[8] As a result, the only type of damages available to Mr. Reeves for the grossly negligent shooting of his dog and the trespass to his chattel are compensatory damages, which are exhaustively defined and limited by the express terms of CJP § 11-110.[9]
*10 Additionally, there can be only one recovery of damages for each injury under Maryland law. [cc] Francis v. Johnson, 219 Md. App. 531, 561 (2014) (“The Maryland appellate courts have made clear that there can be only one recovery of damages for one wrong or injury.”). We have explained that “[u]nder the Maryland rules, [d]ifferent legal theories for the same recovery, based on the same facts or transaction, do not create separate claims.” Beall, 446 Md. at 70 [***].
Here, Mr. Reeves’ gross negligence and trespass to chattel claims are premised on the same set of operative facts. They are thus alternative legal theories for the same recovery. Therefore, Mr. Reeves is entitled to one recovery as compensation. Notwithstanding the fact that Mr. Reeves suffered a tragic loss, the only injury before us for which Mr. Reeves can recover is the death of his dog, because the jury awarded no damages for the constitutional harms.
[***] The Dissent contends that we have passed on the opportunity to change Maryland’s common law to expand the damages available in the case of the tortious death or injury of a pet, in line with a minority modern trend. However, no such opportunity is before us. The issue in this case is not whether our common law is or should be in line with modern sensibilities regarding pets. Also not before us is the issue of whether Maryland law classifying pets as personal property should be changed. Rather, this case presents the narrow issue of whether CJP § 11-110, which defines all compensatory damages in cases involving the injury to or death of a pet, can also be read to allow for types of damages it leaves out of that exhaustive definition. We conclude that the statute cannot be read in such a manner.
*11 The Legislature may wish to amend CJP § 11-110 in response to the various policy arguments in this case in order to allow for other forms of compensatory damages in cases involving the tortious injury or death of pets.[10] However, under the statute in its current form, such damages are strictly limited to the two forms provided. If the Legislature intended to compensate pet owners for noneconomic damages associated with the tortious death of their pets, it would have stated so plainly in the language of CJP § 11-110.
In sum, the plain meaning of CJP § 11-110 is that it defines what compensatory damages are available in the case of the tortious injury to or death of a pet and limits the total amount that may be recovered. It does not allow for recovery of other forms of compensatory damages not expressly included therein.
[The Court then reviewed the legislative history of CJP § 11-110.]
B. Sufficiency of the Evidence of Gross Negligence
We turn now to whether the jury had sufficient evidence to reach a finding of gross negligence against Officer Price and the circuit court’s denial of the Petitioners’ motion for judgment notwithstanding the verdict. “Issues involving gross negligence are often more troublesome than those involving malice because a fine line exists between allegations of negligence and gross negligence.” [cc] Gross negligence is “something more than simple negligence, and likely more akin to reckless conduct.” [c] It is “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.” Additionally, “a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.”
*13 In Brooks v. Jenkins, the Court of Special Appeals held that the trial court did not err by permitting the jury to decide whether the deputy was grossly negligent when he shot the Jenkinses’ family dog. 220 Md. App. at 461–62. [***] In Brooks, the court noted that there was no evidence the dog was a vicious animal or posed a threat; the video recording from the deputy’s body camera showed the dog’s tail wagging as it approached the deputy, and the dog did not approach the deputy with speed or in a crouched position; and the video recording showed the deputy point his gun directly at the dog’s chest and shoot, rather than use lesser force. [c] court stated that “the evidence sufficed to support the jury’s finding that the Deputy overreacted to the potential threat, responded with excessive force, and acted with reckless indifference, and the court was correct to allow the jury to make that decision.”
Here, the jury was presented with more than evidence of “simple negligence.” When “viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party,” there was sufficient evidence for a juror to have drawn the rational inference that Officer Price acted with utter indifference towards Mr. Reeves’ rights when Officer Price shot his dog twice. [***]
Accordingly, viewing the facts in the light most favorable to Mr. Reeves, we agree with the Court of Special Appeals that Mr. Reeves presented sufficient evidence at trial for a rational juror to find that Officer Price was grossly negligent. Thus, we uphold the circuit court’s denial of the Petitioners’ motion for judgment notwithstanding the verdict. However, despite the fact that there was sufficient evidence on the gross negligence claim, as explained above Mr. Reeves’ damages are limited to \$7,500 for his claims, as both the trespass to chattel claim and the gross negligence claim sought recovery for the same harm and both are torts covered by CJP § 11-110. Thus, consistent with the jury’s award and the circuit court’s reduction of the award, Mr. Reeves is limited to \$7,500 on his trespass to chattel claim, and \$0 on his alternative gross negligence claim.
*14 In light of CJP § 11-110’s plain language and structure, its relationship with the Wrongful Death Act, and its legislative history, we conclude that the statute defines and caps the recovery of compensatory damages in the case of the tortious death or injury of a pet. Construing CJP § 11-110 to allow recovery for additional undefined and uncapped compensatory damages, including lost wages and mental anguish, would produce illogical results. Accordingly, we reverse the judgment of the Court of Special Appeals on the statutory construction issue.
Further, we affirm the judgment of the Court of Special Appeals on the gross negligence issue. There was sufficient evidence at trial for the jury to [***] have found that Officer Price acted willfully or with utter indifference towards Mr. Reeves’ rights, and thus, was grossly negligent. However, pursuant to the single recovery rule and CJP § 11-110, we reduce the total damages award to \$7,500, consistent with the statutory cap at the time that this cause of action arose.
Hotten, J., dissenting
For while we have our eyes on the future[,]
history has its eyes on us[.]
This is the era of just redemption[.]
We feared at its inception[.]
We did not feel prepared to be the heirs
of such a terrifying hour
but within it we found the power
to author a new chapter[.][11]
Respectfully, I dissent. The Majority interpreted Md. Code Ann., Courts and Judicial Proceedings (“Cts. & Jud. Proc.”) § 11-110 to preclude the recovery of noneconomic damages for a pet dog killed as a result of gross negligence. The Majority need not have reached its conclusion under a narrow construction of the statute and Maryland common law. Assuming arguendo that our controlling authority mandated the result found in the Majority opinion, the ineffable societal value ascribed to pets warrants a reassessment of Maryland law that continues to treat cherished family pets as mere chattel.
*15 The Majority affirmed in part the Court of Special Appeals’ holding that Officer Price acted with gross negligence when he shot and killed Vern, but the Majority reversed in part the Court’s holding that Cts. & Jud. Proc. § 11-110 permits recovery of emotional damages that arise from grossly negligent harm to pets. The Majority reads the statute’s \$10,000 compensatory damage cap to limit all possible recovery for an injury or death of a pet.
The Majority did not have to reach this conclusion and should have concluded that pets killed or injured with gross negligence may permit the recovery of emotional damages. We are bound to interpret statutes that displace common law as narrowly as possible. [***] To date, Maryland common law has not clearly specified whether gross negligence is equivalent to “fraud, malice, or like motives” especially in the context of tortious harm to pets. This Court has noted that there is not a consistent usage of gross negligence across “more than twenty-five appearances in our statutes[.]” Taylor, 384 Md. at 227.[12] This Court in some instances equated gross negligence with “fraud, malice, or like motives” in the past,[13]which according to longstanding precepts of Maryland common law may render a tortfeasor liable for emotional damages for damage to property. Aronoff, 197 Md. at 539. It would have been sound, especially given the strong emotional bond between people and pets, for the Majority to recognize an additional exception to the common law that grossly negligent harm to pets may entail liability for emotional damages. Pets, particularly dogs, possess individual personalities, emotions, intelligences, and behaviors.[14] Maryland law should distinguish between the recovery of grossly negligent harms to pets and inanimate objects accordingly.
*16 Pets already hold an anomalous position within Maryland law. They are the only type of “property” with capped compensatory damages. The Majority’s decision places pets in a doubly anomalous position: they are the only type of property subject to a compensatory and non-compensatory cap. A tortfeasor may “wantonly and willfully” shoot and kill a beloved, family dog, “utterly indifferent” to the family’s emotional bond and pay no more than \$10,000 in damages, while a fraudster who intentionally tricks a family into selling a painting of their dog would face uncapped compensatory damages and punitive damages.
The Majority’s decision also creates an incongruous result where a person can be criminally liable for neglecting their pet under Maryland’s animal cruelty law, Md. Code Ann., Criminal Law § 10-601(c)(1) (“ ‘Cruelty’ means the unnecessary or unjustifiable physical pain or suffering caused or allowed by an act, omission, or neglect[ ]”), but if someone else kills one’s pet with gross negligence, they will only face a maximum compensatory damage penalty of \$10,000.
The Majority’s decision stands at odds with the modern trend of our sister jurisdictions that have recognized a greater right of recovery for injured or killed pets. More than fifty years ago, the Florida Supreme Court held in La Porte v. Associated Independents, Inc. that “the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal[.]” 163 So. 2d 267, 269 (Fla. 1964). The plaintiff saw a garbage collector throw a trash can at her dog, Heidi. The garbage collector laughed and drove away. Heidi died from the impact. The trial court limited the plaintiff’s recovery to the fair market value of the dog. The Florida Supreme Court reversed recognizing the “very real” affection between a person and their pet.
Similar decisions have since been reached in Alaska, California, Florida, Hawaii, Idaho, Kentucky, Puerto Rico and Washington. [cc] In Plotnik v. Meihaus, 208 Cal. App. 4th 1590 (4th Dist. 2012), the plaintiffs sued their neighbor after he allegedly struck their 12-inch tall miniature pinscher with a baseball bat after the dog dashed into the neighbor’s yard. Id. at 1605, 146 Cal. Rptr.3d at 598. The California Court of Appeal for the Fourth District held:
We believe good cause exists to allow the recovery of damages for emotional distress under the circumstances of this case …. [W]hile it has been said that [dogs] have nearly always been held to be entitled to less regard and protection than more harmless domestic animals, it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt. Additionally, one can be held liable for punitive damages if he or she willfully or through gross negligence wrongfully injures an animal.
Id. at 1607, 146 Cal. Rptr. 3d at 600 (internal citations and quotation omitted).
The court based its decision on California’s civil code that permits recovery of exemplary damages or “damages for the sake of example and by way of punishing the defendant[ ]” for malicious, oppressive, or fraudulent conduct. Cal. Civ. Code § 3294 (1992). These conditions for granting relief to an injured pet in California closely parallel Maryland’s common law basis of recovering emotional damages for property in Maryland. See Zeigler, 248 Md. at 226 (allowing recovery of emotional damages for harms to real property “inspired by fraud, malice, or like motives[ ]”). By permitting the recovery of emotional damages for injuries or death sustained by pets, as a result of grossly negligent conduct, we would have joined a modern trend among sister jurisdictions that recognize the close emotional bond humans share with their pets. [***]
Marylanders have strong emotional bonds with their pets, especially their dogs. Most people, including Mr. Reeves, considered his dog a part of the family and “his best friend in the world[.]” The designation of dogs as mere personal property belies common experience, cultural values, and societal expectations. Treating dogs as mere property also erases a dog’s intrinsic attributes as a living being and the irreplaceable instinct to love and protect human companions. A dog, unlike an inanimate object, welcomes its human companion after a day at work, protects its human companion when in danger, and exhibits behavior and emotions that is consistent with grief and distress when its human companion is ill, injured, or passes away. Given prevailing societal values, attitudes, and norms, it no longer appears tenable to deny emotional damages for a cherished family dog, killed with gross negligence, in the same way that the common law precludes emotional damages for an inanimate object that was accidentally broken. [c]
Marylanders can no longer rely on Brooks to vindicate the loss of a cherished pet companion. The Majority’s decision comes at a time when pet ownership is surging. The 2019-2020 National Pet Owners Survey estimated 67% of U.S. households have a pet, up from 56% in 1988. This data omits the recent uptick following the Covid-19 global pandemic. Kim Kavin, Dog Adoptions and Sales Soar During the Pandemic, The Washington Post (Aug. 12, 2020). Pet adoption has always provided more than just companionship, it establishes a connection and unconditional love. KK Ottesen, Humane Society President Discusses the Surge of Pet Ownership During the Pandemic – And What Animals Can Teach Us, The Washington Post (Apr. 27, 2021) (“[Animals] provide [connection and unconditional love]. That’s who they are. That’s what they do.”).
The Majority has missed an opportunity to recognize pets, not just as emotive, intelligent, loving, and cherished members of our families, but as representing more than mere personal property. In the past, courts did not wait for legislative enactment to expand the concept of personage when societal needs, values, and interests demanded it. This Court can break from precedent when “passage of time and evolving events” render it “archaic or inapplicable to modern society[.]” State v. Stachowski, 440 Md. 504, 520 (2014). Greater legal protection of beloved family pets is long overdue.[15]
*19 The average Marylander may be surprised to hear that while the law treats a caring, loyal, and vivacious pet dog as personal property, it treats a corporation as a person. Common law has recognized corporate personhood for centuries. [***]
The average Marylander may be more surprised to hear that the law has recognized a boat, or more precisely, a vessel, as a legal person. Ralli v. Troop, 157 U.S. 386, 403 (1895) (affirming “a distinct principle of the maritime law, namely, that the vessel, in whosesoever hands she lawfully is, is herself considered the wrongdoer, liable for the tort, and subject to a maritime lien for the damages”) (emphasis added). Even though vessels constitute inanimate amalgamations of mostly steel, aluminum, fiberglass and timber, the law endows the vessel with a legal personality (usually gendered as female) and empowers “her” recovery for tort damages.
The common law extended recognition of legal personage to what the average person would consider property not because people loved corporations and vessels more than their pets. Instead, legal, commercial, and societal interests demanded it. “[A]nything can be made a legal unit, and the subject of rights and duties, a fund, a building, a child unborn, a family. There is no reason, except the practical one, why, as someone has suggested, the law should not accord to the last rose of summer a legal right not to be plucked.” [c]
Similarly, extending legal personhood to pets on a limited basis to recover for emotional damages for the pet’s grossly negligent injury or death could present an incremental change to Maryland tort law. More importantly, it serves to dignify the deep emotional connection between humans and their pets and underscores a widely shared belief in modern society that animals are not chattel, but members of the family.[16]
The law should similarly extend a recognition of limited personhood to pets, if only so their human companions can seek recovery for grossly negligent conduct that caused injury or death to that pet. The law should reflect the importance and centrality of pets to individual families and society as a whole. It has already done so for multinational corporations and vessels. Pets deserve similar treatment.
*20 The designation of pets under the common law as mere personal property deprives pets the dignity of living beings. When Maryland became a state in 1788, it formally inherited the common law of England, which still considered slaves, women, and pets as property. Over decades of struggle and progress, Maryland, like every state in the union, cast aside the harmful classification of people as property.[17] Pets should not be consigned to eighteenth-century notions of property. It denies the dignity abundantly ascribed to pets by society. It prevents people of Maryland from being made whole after a tragic injury or death of their pet.
The legal arc of Maryland is one of progress and bends inexorably towards greater recognition of rights. The common law designation of pets as personal property, rooted in legal formalism, conflicts with society’s values and the trajectory of common law in Maryland and throughout the country. Our pets are more than just living beings. They are widely considered best friends, guardians, and members of the family. Maryland law should recognize and bestow pets with the same degree of dignity.
In this instance, it appears that pet owners who sustain the loss of the pet as the result of the grossly negligent acts of another will have no recourse other than with the General Assembly to move Maryland forward.
For these reasons, I dissent and would affirm the judgment of the Court of Special Appeals.
Note 1. What evidence did the plaintiff offer for why he was seeking noneconomic damages? If you were a juror, what would you have thought of that claim? Which elements struck you as more or less persuasive?
Note 2. How did the statute define the pet’s value? Considering that in light of how the plaintiff described his attachment, does it seem that certain sorts of things the law tries to value are incommensurate? That is, does the law’s system of valuation fail to align with how individuals experience their lives (and losses)? Is the cap on damages an injustice that fails to account for that incommensurability, if so, or might it be a response to it?
Note 3. The dissent argues for an extension of limited personhood to pets and it offers multiple arguments in support of its argument. One of these is dignitarian in nature (designating pets as personal property “deprives pets of the dignity of living beings,” p. *20). It points to 18th-century common law under which people of color were enslaved and treated as property. Courts have sometimes suppressed ugly aspects of our national history, including the extent to which the country profited from the labor of enslaved persons. Hence not shying from it seems healthy, in many cases. Is the analogy apt here, however well intended? Or could elevating the interests of animals in this way seem like an affront to those who were enslaved? Is creating an equivalence between groups of living beings (women, people of color and dogs) simply part of a pragmatic strategy to expand the rights of all these groups or could it be read as a subtle devaluation of the autonomy of the human groups relative to animals, a lingering marker of a system of law built on white male supremacy? Is your assessment of this personhood argument affected at all by knowing that the author of the dissent, Judge Michele D. Hotten, is an African-American woman who grew up poor, raised by a single mother in southeast Washington, and went on to become only the second African American woman appointed to the state’s highest court? Seehttps://www.washingtonpost.com/local/md-politics/michele-hotten-is-officially-sworn-in-to-serve-on-marylands-highest-court/2015/12/22/9a9fab62-a8b4-11e5-bff5-905b92f5f94b_story.html. As students and scholars, should we be considering the background experiences and identities of the judiciary and the profession at large when interpreting their reasoning? What mistakes can flow from doing so, and what might be missed when not doing so?
Expand On Your Understanding – Socratic Script: Anne Arundel County v. Reeves
Question 1. What was the ruling of the trial court, including kind and amount of damages awarded?
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Question 2. What were the subsequent rulings on appeal? What is the court’s holding here?
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Question 3. What was the purpose of the statute at issue in this case?
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Question 4. What conflicting facts arose in the accounts of Price’s encounter with Vern? What was their legal significance? What sorts of evidence was used to persuade the jury as to these conflicting facts?
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Question 5. What kinds of arguments did the majority offer in ruling against the availability of noneconomic damages in cases of tortious injury to pets?
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Question 6. The dissent begins with an excerpt of Amanda Gorman’s stirring inaugural poem. Why? What is the overarching theory of the dissent’s position? What sort of argument is it, in terms of the theories of tort law?
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Question 7. As a descriptive matter, the dissent offers at least five legal arguments to support its position. Whether or not you agree with the dissent, what are a few of those arguments?
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1. Since the conduct underlying this case occurred, the Legislature has increased the cap to \$10,000. See S. 143, 2017 Leg., 437th Sess. (Md. 2017). Throughout this opinion, we shall refer to the version of the statute in place at the time of the events of this case.
2. Mr. Reeves also testified that Officer Price likewise “put[ ] his hand on his weapon” on two other occasions when Mr. Reeves’ two sons approached Officer Price.
3. Michael Reeves Jr. testified at trial that the officers on the scene were blocking his truck for twenty to thirty minutes before he was ultimately able to drive to the veterinary hospital.
4. Mr. Reeves testified that, after serving in the Marines, he had worked as a contractor in the power industry. He testified as to the wages that he earned and the fact that he had not worked since the death of Vern. Per Mr. Reeves’ gross negligence claim, he alleged economic damages in the form of lost wages.
5. This factual finding was relevant to the personal immunity of Officer Price under the LGTCA. Local government employees in Maryland have no immunity if they act with “actual malice,” which is defined as “ill will or improper motivation.” See LGTCA, CJP § 5-301(b) (“ ‘Actual malice’ means ill will or improper motivation.”); CJP § 5-302(b)(2)(i) (“An employee shall be fully liable for all damages awarded in an action in which it is found that the employee acted with actual malice.”). Because the jury found that Officer Price did not act with “ill will or improper motivation,” the County is liable.
6. One such result would be that a pet owner could recover noneconomic damages for the death of a pet, while that same person could not receive such damages for the loss of a best friend, sibling, fiancé(e), or grandparent. We do not dispute that the Legislature could create such a scheme, but we will not interpret it as doing so through mere silence and in the face of the statute’s plain meaning.
7. Mr. Reeves argues that recovery of other economic and noneconomic damages under CJP § 11-110 would not be limitless in this case because, at the time of the incident, the LGTCA capped those damages at \$200,000. CJP § 5-303(a)(1) (2013). The LGTCA, however, would not apply in the case of veterinary malpractice, a person’s dog attacking a neighbor’s cat, or numerous other situations covered under the statute where a private individual and not a local government is at fault. CJP § 11-110 does not distinguish between tort claims against local governments and claims against private individuals.
8. The Dissent states that our reading of CJP § 11-110 would “limit all possible recovery” to a complainant in the case of the “injury or death of a pet.” However, this case does not deal with “all possible recovery” in such cases. Rather, it deals solely with compensatory damages, as distinguished from punitive damages, and as they are defined in the statute. The statute, by its own terms, does not address punitive damages, and they are also not at issue in this case. Also not at issue here is the exception to the common law rule that allows for certain forms of noneconomic damages when property is damaged by a tortfeasor whose acts are “inspired by fraud, malice, or like motives.” [cc] This case clearly does not involve fraud, and the jury expressly found that Officer Price did not act with actual malice, i.e. “ill will or improper motivation.”
9. CJP § 11-110 was not enacted upon tabula rasa. Rather, it augmented well-established common law principles of recovery in cases of tortious injury to personal property. Under the common law, domestic animals such as pets have been legally classified as personal property. [***] CJP § 11-110 merely codified the existing recovery rule in cases involving pets, allowed for an additional and limited form of damages in the way of defined veterinary expenses, including veterinary expenses that exceed the pet’s fair market value, and capped all available compensatory damages.
10. One such policy argument is that advanced by the Maryland Veterinary Medical Association, the American Kennel Club, the Cat Fanciers’ Association, the Animal Health Institute, the American Veterinary Medical Association, the National Animal Interest Alliance, the American Pet Products Association, the American Animal Hospital Association, and the Pet Industry Joint Advisory Council, who submitted an amici curiae brief with this Court. Therein, they stated that if awards of noneconomic damages are permitted for negligence, the cost of veterinary care, pet food and other products, and other pet services would increase to accommodate the new liability, and pet owners might not be able to afford these necessary products and services. Such policy considerations are the proper province of the Legislature.
11. Amanda Gorman, The Hill We Climb, The Hill, https://thehill.com/homenews/news/535052-read-transcript-of-amanda-gormans-inaugural-poem (Jan. 21, 2021), archived at https://perma.cc/YR5V-WGZX.
12. See, e.g., Md. Code Ann., Insurance § 5-201(j)(“Except for fraud, willful misconduct, or gross negligence, a qualified actuary is not liable for damages ...”); Md. Code Ann., Business, Occupations & Professions § 3-311(a)(1)(iii) (revoking an architecture license if applicant or licensee “is guilty of any fraud, gross negligence, incompetence, or misconduct...”); Md. Code Ann., Natural Resources § 8-716.1(f)(1) (waiving statute of limitations for personal tax debt if “proof of fraud or gross negligence...”).
13. Cooper v. Rodriguez, 443 Md. 680, 710, 118 A.3d 829, 846 (2015) (holding corrections officer acted with gross negligence to lose immunity under Maryland Tort Claims Act); Booth v. Robinson, 55 Md. 419 (1881) (holding directors of a corporation breach their fiduciary duty through gross negligence in the same way directors would be for fraud);see also Ford v. Balt. City Sheriff’s Office, 149 Md. App. 107, 120-21, 814 A.2d 127, 134 (2002) (if “the State employee has acted with malice or gross negligence, . . . the State is immune from suit and the injured party may only bring a viable tort claim against the State employee.”)(emphasis added); but see Ellerin v. Fairfax Sav., F.S.B., 337 Md. 216, 228, 652 A.2d 1117, 1123 (1995) (precluding gross negligence as a basis for punitive damages in non-intentional tort cases).
14. News and social media are replete with stories that reinforce common experience and understanding of pets as cherished companions. See, e.g., The Dodo, http://www.thedodo.com (last visited May 25, 2021), archived at https://perma.cc/V52M-TRHK.
15. The perpetuation of Maryland common law’s categorization of pets as personal property, despite prevailing societal sentiment, calls to mind a vigorous dissent from Judge Starcher of the West Virginia Supreme Court: This opinion is simply medieval. The majority blithely says that “our law categorizes dogs as personal property”—that “damages for sentimental value, mental suffering, and emotional distress are not recoverable” when one’s pet is injured or killed by the negligence of another person. In coming to this conclusion, the majority overlooks the fact that the “law” in question is the common law which is controlled by this Court. There was nothing stopping the majority from changing that common law other than their lack of concern for pet owners and the emotional bonds that exist between owners and their pets. When the common law of the past is no longer in harmony with the institutions or societal conditions of the present, this Court is constitutionally empowered to adjust the common law to current needs. ... As Justice Holmes succinctly reflected, “[t]he common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasisovereign that can be identified.” ... Yet the majority opinion continues to maintain the primitive limits of the common law, and refuses to adjust to the realities of the modern world, and permit recovery of damages for sentimental values, mental suffering, or emotional distress. Carbasho v. Musulin, 217 W. Va. 359, 363, 618 S.E.2d 368, 372 (2005) (Starcher, J., dissenting).
16. The law already allows a mother, who sustains personal injury, and as a result of the negligent conduct of another, suffers the loss of a fetus, to recover emotional damages for the death of an unborn child. Smith v. Borello, 370 Md. 227, 247 (2002) (holding that a mother may recover demonstrable emotional distress that accompanies and is attributable to the loss of the fetus and the distress recoverable includes that arising from the unexpected termination of her pregnancy and the enduring of a miscarriage or stillbirth).
17. History has taken a dim view on legal decisions that perpetuated the treatment of people as property merely because the law previously prescribed it. The United States Supreme Court infamously held in Dred Scott v. Sandford, “[b]ut it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration[.]” 60 U.S. 393, 410 (1857). The Dred Scott decision has been widely condemned and regarded as one of the most repudiated decisions by the United States Supreme Court. [***] This Court made the same mistake as the United States Supreme Court when it decided Hughes v. Jackson, 12 Md. 450 (1858) (recognizing Maryland’s common law treatment of slaves as property, devoid of civil rights, including the right to sue or be sued). While different in kind and degree, courts propagated the doctrine of coverture, which treated married women as quasi property of the husband. R. & E. Builders, Inc. v. Chandler, 144 Vt. 302, 304 (1984) (describing “common law legal fiction that a husband and wife are one person for most legal purposes[ ]”). Notably, “a wife could not sue anyone for a tort committed against her without her husband’s consent; neither could she be sued for committing a tort without having her husband joined as a defendant.” Id. at 304. Courts only gradually removed de jure subjugation of women from the common law in the twentieth century. Trammel v. United States, 445 U.S. 40 (1980) (“Chip by chip, ... cast aside so that [n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas[ ]”). | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/06%3A_Damages/6.03%3A_Statutory_Caps_on_Damages_%28Socratic_Script%29.txt |
In many jurisdictions, courts may still use race, gender and other attributes to determine how much to award for a lost life, or loss of earning potential. On the one hand, in a capitalist society in which people do earn different salaries and do have different professional trajectories, tort law’s position is facially defensible. On the other hand, it entrenches the advantages of some over the disadvantages of many. Moreover, it signals that the inequities built into the system are worth continuing to protect and double-down on. See e.g. Kim Soffen, In One Corner of the Law, Minorities and Women Are Often Valued Less, Wash. Post; Wonkblog (Oct. 25, 2016), https://www.washingtonpost.com/graphics/business/wonk/settlements/
In many cases, the fact pattern may feel especially unfair intuitively, as when someone’s injury seems already to be linked in some way to their racial or socioeconomic status. When the law awards a comparatively small recovery, it conveys, with the cloak of judicial authority, that some injuries matter less and some lives are less valuable than others. The next case takes up these questions in earnest, with tragic and triggering facts.
Let me underscore that the next case features graphic details of a pregnant woman dying in a medical malpractice case. Because at least some of the details of her unnecessarily painful death are relevant to the nature and size of her damages, they are not edited out.
(Not Reported in F. Supp.2d)(2012 WL 5364737)
*1 On May 1 and 2, 2012, the Court held a bench trial in this medical malpractice case. Counsel for the plaintiff and counsel for the defendant announced ready, proceeded to trial, presented evidence, and finally rested. Having considered the evidence and applicable law, the Court now issues its findings of fact and conclusions of law.
Before proceeding, a preliminary statement is in order.
This case is about the tragic and senseless deaths of Tiara Renea Clemons and Aubrey Anna Clemons. They died because an emergency room doctor refused to provide them basic treatment.
The evidence revealed three especially terrible facts. First, the doctor’s malpractice caused Tiara Clemons to suffer tremendously before her death. Second, the doctor’s malpractice caused the death of Tiara’s unborn child, Aubrey Anna, who at 30 weeks along was only a few weeks shy of birth. Third, the deaths of Tiara and Aubrey Anna were completely and utterly preventable. They would be alive today, but for the doctor’s refusal to treat them. A more profound case of willful disregard can hardly be imagined.
The United States government indirectly employed the doctor in question. Acknowledging that there was no excuse for the doctor’s incompetence, the government admitted liability. The sole dispute at trial was over the amount of damages recoverable by plaintiff Kathy Clemons, who is Tiara’s mother, Aubrey Anna’s grandmother, and guardian to Tiara’s two surviving children. That issue is resolved below.[1]
1. Stipulated Facts
The following facts were stipulated by the parties in the Pretrial Order and are therefore accepted by the Court as true. Docket No. 56. The footnotes in this section help explain the stipulations but are not themselves stipulations.
1. On June 27, 2009, Tiara Clemons was a 20 year old Native American female, and a citizen of the Choctaw Nation, residing in Choctaw, Neshoba County, Mississippi. On June 27, 2009, Tiara received a puncture wound near the top of her right scapula. At that time, Tiara Clemons was 30 weeks pregnant with Aubrey Clemons, a minor child. As a result of the wound, Tiara Clemons sought medical treatment for herself and her unborn child from the Choctaw Health Center located in Choctaw, Neshoba County, Mississippi.
2. At approximately 5:19 p.m., on June 27, 2009, Tiara Clemons was examined by Choctaw ambulance EMTs who responded to her call for assistance due to injuries received from a puncture wound to her back. She was examined, and her vital signs were stable. She was noted to be awake and alert, and sitting on the ground. Importantly, the Choctaw EMT noted that she had “bilateral breath sounds clear to auscultation.” Her wound was bandaged, and she was not bleeding externally. Tiara Clemons was given oxygen, and an IV was started on her left hand. In that condition, Tiara Clemons and her unborn child, Aubrey Anna Clemons, were transported to Choctaw Health Center, recognized by the Mississippi Department of Health as a Level IV Trauma Center. *2
3. Tiara and Aubrey Anna arrived at the Choctaw Health Center by ambulance at 5:22 p.m. (Testimony showed that the trip took no more than two minutes. Trial Transcript 89–91 [hereinafter “Tr.”]. The Clemons family lived less than a mile from the Choctaw Health Center. Id.) They were not seen, examined, or triaged until 5:42 p.m.
4. At 5:42 p.m., Jill Shaw, a family nurse practitioner, examined Tiara. Nurse Shaw noted that Tiara was 30 weeks pregnant with Aubrey Anna, and recorded Tiara’s pain at a “10” on a scale of 1 to 10, with 10 being the “most severe” pain. Nurse Shaw ordered laboratory tests on Tiara’s blood, a chest x-ray, and that a fetal monitor be placed on Tiara to monitor Aubrey Anna. At 5:42 p.m., Nurse Shaw obtained a blood pressure of 109/62.
5. At 5:45 p.m., Tiara and Aubrey Anna were examined by Dr. [Victoria] Guevarra, the ER doctor staffing the Choctaw Health Center Emergency Room. Dr. Guevarra noted that Tiara had received a stab wound in the right scapula, and that by 5:45 p.m., she had decreased breath sounds on the right upper fields. Dr. Guevarra ordered laboratory tests, and ordered that Tiara be given morphine for pain.
6. At 5:53 p.m., Tiara was taken to the radiology room very near the emergency room, where two chest x-rays were taken. The first x-ray was placed in the developer at 5:53 p.m.—the second at 5:57 p.m. These x-rays were available to be viewed by Dr. Guevarra in the emergency room no later than 6:00 p.m. By 6:10 p.m. Dr. Guevarra had reviewed the x-rays and was aware of the internal bleeding.
7. The 5:53 p.m. and 5:57 p.m. chest x-rays revealed that Tiara had a large right pleural effusion, with unilateral pulmonary infiltrate in the right lung, a hemothorax on the right with a fifteen to twenty percent pneumothorax on the right. Upon viewing the x-ray, Dr. Guevarra diagnosed Tiara with a pneumothorax in her right lung, and that she was bleeding internally.
8. At 6:21 p.m., Dr. Guevarra received the result of the blood tests previously ordered. The results showed diminished hemoglobin and hematocrit levels. By 6:40 p.m.[2] Tiara had become hypotensive. Her blood pressure was recorded at 81/47.[3]
9. Between 6:50 p.m. and 7:05 p.m. Dr. Guevarra attempted to arrange a transfer of Tiara to Anderson Medical Center in Meridian, Mississippi, by ground ambulance. Dr. Guevarra called Anderson Regional Medical Center in Meridian, Mississippi, located about 40 miles distance, about a transfer. However, the ER doctor at Anderson denied Dr. Guevarra’s request for transfer because Clemons was pregnant. Dr. Guevarra did not tell the doctor at Anderson that it was a life threatening situation regarding Clemons.[4] She did not contact or try to transport Clemons to Neshoba County General Hospital, about 8 miles distance.
10. It was at least 6:50 p.m. [***] when Dr. Guevarra began trying to have Clemons transported to [a] medical facility with emergency services. Dr. Guevarra only began this process after being urged by CHC nursing personnel and Choctaw EMS personnel to have Clemons transported to a hospital.
11. Todd Harrison, one of the Choctaw EMT/paramedics, told Dr. Guevarra that Tiara was not stable enough to transport by ground ambulance, and told her to call the AirCare dispatch and send a helicopter to transport Tiara to University Medical Center [“UMC”] in Jackson, Mississippi, a Level I Trauma Center. Dr. Guevarra then called for the UMC AirCare helicopter to transport Tiara. When contacted, UMC immediately dispatched a helicopter with EMT personnel.[5] Dr. Guevarra did not relay that CHC had no blood nor ability to drain fluids from Clemons’ chest. *3
12. At approximately 7:00 p.m., Dr. Guevarra ordered another chest x-ray, which revealed a “massive” right hemothorax.
13. At 7:30 p.m., Tiara Clemons was assessed by the UMC AirCare EMTs upon their arrival at the Choctaw Health Center. Upon assessment, Tiara was hypoxic, hypotensive, and worsening. Her blood pressure had fallen to 82/54, her oxygen saturation was at 86%, … and her respirations were 36.[6] The UMC EMTs noted the massive hemothorax visualized on the chest x-ray. Tiara was gasping for breath, and no breath sounds could be heard on the right side of her chest. The UMC EMTs requested that Dr. Guevarra perform a thoracostomy. EMT medical notes reflect that Dr. Guevarra repeatedly refused to perform the thoracostomy, a procedure which involves inserting a tube into Clemons’ chest to drain the blood, despite requests by UMC EMT.[7] The UMC EMTs also requested that Dr. Guevarra give blood to Tiara Clemons. Dr. Guevarra did not order blood to be given, and informed that none was available at the Choctaw Health Center.
14. At approximately 7:30 p.m., the UMC EMTs noted that there was a failure to protect Tiara’s airway, and intubated Tiara at 7:35 p.m. At 7:45 p.m., due to observed cyanosis (turning blue), decreased breath sounds, severe shortness of breath, decreased cardiac output, low oxygen and oxygen saturation rates, the UMC EMTs performed a needle thoracostomy on the right chest, which returned approximately 300 ml of air and blood.[8]
15. At 8:09 p.m., the UMC AirCare EMTs departed for UMC in the helicopter with Tiara and Aubrey Anna. Measured at 8:15 p.m. and 8:30 p.m., Tiara’s oxygen saturation level was 42%. By 8:40 p.m., Tiara’s oxygen saturation level had dropped so low that it was incapable of measurement, and was recorded as “0%”.
16. At 8:42 p.m., as the AirCare helicopter was approaching UMC, while over the VA Hospital [The Court will note that the VA Hospital is next door to UMC], Tiara went into cardiac arrest. At 8:44 p.m., Advanced Cardiac Life Support protocols were employed by the EMTs, including administration of atropine and epinephrine. From 8:44 p.m. until 8:54 p.m. cardiopulmonary resuscitation (CPR) was performed. At 8:45 p.m., the UMC EMTs performed a needle thoracostomy to Tiara’s left chest, which returned 20 ml of air and blood. At 8:50 p.m., the UMC EMTs delivered Tiara to the UMC emergency physicians.
17. At 8:50 p.m., the UMC emergency physicians performed a thoracostomy and inserted bilateral chest tubes. The chest tube on the right returned 2400–2500 cc’s of blood.[9] A cardiac ultrasound was performed, which revealed no cardiac activity present in either Tiara or Aubrey Anna.
18. At 8:52 p.m., Aubrey Anna was delivered by emergency Caesarean section, but showed no signs of life. CPR was continued on Tiara Clemons. At 8:54 p.m., another cardiac ultrasound was performed. With no cardiac activity noted, Tiara Clemons and Aubrey Anna Clemons were pronounced dead.
19. At all material times, Dr. Victoria Guevarra, Jill Shaw, FNP, and all other individuals who provided medical care and treatment to Tiara Clemons and Aubrey Anna Clemons were acting in the course and scope of their employment with the Choctaw Health Center, a healthcare facility owned and operated by, and located on property occupied by, the Mississippi Band of Choctaw Indians, in Choctaw, Mississippi.
*4 20. The United States of America, Defendant, is statutorily and at common law responsible for the wrongful and negligent acts, if any,[10] with respect to Tiara Clemons and Aubrey Anna Clemons which occurred at the Choctaw Health Center, located on property occupied by the Mississippi Band of Choctaw Indians, in Choctaw, Mississippi.[11]
21. As the sole wrongful death beneficiaries of Tiara Clemons and Aubrey Anna Clemons, deceased, Elona Clemons and Keontray Clemons, by and through Kathy Clemons and Bill Clemons, Guardians, are entitled to assert and prosecute a claim for damages arising out of the wrongful death of Tiara Clemons and Aubrey Anna Clemons.
22. The care rendered to Tiara and Aubrey Anna Clemons on June 27, 2009 did not comply with, and fell below, the standard of care applicable to the Choctaw Health Center, and Dr. Guevarra.
23. Dr. Guevarra and the Choctaw Health Center breached the applicable standard of care while rendering medical care and treatment to Tiara and Aubrey Anna Clemons. The breach of the standard of care included a failure to timely transfer Tiara and Aubrey Anna to a healthcare facility with additional treatment capabilities, and/or failing to insert a chest tube, i.e., perform a thoracostomy, to protect Tiara Clemons’ airway.
24. Had Tiara and Aubrey Anna Clemons received treatment at the Choctaw Health Center consistent with the applicable standard of care, i.e., timely transfer to a healthcare facility with additional treatment options available and/or insertion of a chest tube, both Tiara and Aubrey Anna Clemons would have survived intact.
25. The breaches of the standard of care of Dr. Guevarra and the Choctaw Health Center while rendering medical care and treatment to Tiara Clemons and Aubrey Anna Clemons were a proximate cause of the deaths of Tiara Clemons and Aubrey Anna Clemons.
26. On June 27, 2009, Tiara Clemons was stabbed by an individual, consistent with the notations in the medical records and autopsy report.[12]
27. The medical expenses associated with Tiara Clemons and Aubrey Anna Clemons treatment at University Medical Center on June 27, 2009 and the funeral expenses of Tiara Clemons and Aubrey Anna Clemons were paid by the Mississippi Band of Choctaw Indians.
28. Subsequent to June 27, 2009, Dr. Guevarra was removed from staffing the emergency room at Choctaw Health Center as an emergency physician.[13]
II. The Cour t’s Findings
This wrongful death suit was brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. [***] *5 Under Mississippi’s wrongful death law, Kathy Clemons is an appropriate representative to file suit on behalf of herself and Tiara Clemons’ children. Miss. Code § 11–7–13; PX–34; PX–35. The statute states that she “shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.” Miss. Code § 11–7–13 (emphasis added). “Compensation in a wrongful death action is not limited to actual damages and lost wages, but extends to the pain and suffering of the deceased, as well as the loss of companionship and society.” [c]
Kathy Clemons may recover for the wrongful deaths of Tiara and Aubrey Anna with no distinction made for Aubrey Anna being a 30–week old fetus in the womb. Mississippi’s wrongful death statute states that recovery may be made for the wrongful death of persons or “any unborn quick child.” Miss.Code § 11–7–13; see [c] (“When a family loses a potential member because of tortious conduct of another, it suffers an injury of the same order as when it loses an existing member.”). It is undisputed that Aubrey Anna was ‘quick in the womb’ and viable outside of the womb. Tr. 183, 200 (testimony of Dr. Owens); [c] (discussing ‘quickening’ and viability). Accordingly, Kathy Clemons may recover for the wrongful deaths of both Tiara and Aubrey Anna.
Before continuing, the Court must emphasize that its determination of the amount of damages properly recoverable in this case is in no way a declaration of the value of Tiara or Aubrey Anna’s lives. It is not possible to assign a dollar value to anyone’s life. As the Mississippi Supreme Court wrote over 80 years ago, “the loss sustained by a wife and children in the death of the husband and father frequently cannot be compensated by any amount of money.” Gulf Ref. Co. v. Miller, 121 So. 482, 483 (Miss.1929); see also Dickey v. Parham, 331 So.2d 917, 919 (Miss.1976) (“how to test the adequacy or inadequacy of verdicts in a wrongful death action is a most perplexing problem. This is true because the value of human life even when considered along with applicable elements of damages is difficult of proof.”); Weems & Weems, Mississippi Law of Torts § 14:10 (2d ed.2008).[14] An award of monetary damages is simply the means by which our system of justice seeks to repair some of the loss and harm inflicted upon the victim and the victim’s family.
The parties’ various disputes concerning damages are resolved as follows:
A. Economic Damages
Mississippi law defines economic damages as:
objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses. *6 Miss.Code § 11–1–60(1)(b).
The plaintiff put forward evidence of \$31,394 in reasonable and necessary medical expenses and \$4,014 in funeral expenses. The United States does not challenge either amount. They will be awarded.
1. Tiara’s Economic Damages
The plaintiff called Dr. G. Richard Thompson to provide expert testimony about Tiara’s economic damages, while the defendant called James A. Koerber for the same purpose. The Court will take up lost earnings first, then turn to the value of household services.
The experts’ estimates of Tiara’s lost earnings differed based upon their assumptions. For example, the plaintiff’s expert’s report had a high-end estimate of \$1.19 million, PX–31 at 8, while the defendant’s expert’s low-end estimate was \$256,497, DX–1 at App’x A. (All of these figures have been reduced to present value.) The Court will wade through several of these assumptions and determine which model is generally more persuasive.[15]
The first dispute concerns the number of years Tiara could be expected to work. The plaintiff’s expert assumed, based on certain sources, that Tiara would work until the normal retirement age of 67. PX–31 at 5. The defendant’s expert assumed, based on other sources, that Tiara would work for approximately 21 and a half years. DX–1 at 6. The defense expert’s assumption was based upon a study of “initially inactive women with less than a high school education.” DX–1 at 10. Tiara did have some work experience, so it is not immediately obvious that she matches the “initially inactive” description. But grouping Tiara with the findings of that study is also not quite apt because the evidence indicated that Tiara was completing her GED, and therefore should be treated as a high school graduate, not a high school dropout. See Rebelwood Apartments RP, LP v. English, 48 So.3d 483, 495–96 (Miss.2010) (discussing caselaw affirming trial judge’s decision to apply college-graduate average wages to decedents who were enrolled in college but had not yet completed college). All in all, the plaintiff’s expert’s assumption is more compelling on this point. [***]
Another disputed assumption is Tiara’s expected tax rate. The plaintiff’s expert testified that with three children and relatively modest earnings, Tiara’s taxes would be negligible. Tr. 230–31, 239; PX–31 at 6. The defendant’s expert assumed a greater rate, especially if Tiara went on to obtain a two-year degree. DX–1 at 6. The Court agrees that the former approach more closely matches our situation.
The contested assumption of most significance is how much education Tiara ultimately would have completed. Lifetime wages for graduates of community colleges are, on average, higher than lifetime wages for GED recipients. PX–31; DX–1; Tr. 235–36. As a result, each expert made two calculations, one for Tiara completing community college and one for her without that credential. Within that latter category, the experts appear to have made a further distinction: the plaintiff’s expert assumed Tiara’s wages as a GED holder, while the defense expert assumed Tiara’s wages in a minimum wage-only job. Compare PX–31 at 6 with DX–1 at 6.
*7 On review, the available evidence was more supportive of Tiara completing her GED and entering the workforce without a two-year degree. Tiara’s mother testified that after completing her GED, which Tiara was only two classes away from finishing, Tiara had said she would work for the tribe and raise her children. Tr. 175. On prompting by counsel, testimony was elicited that Tiara wanted to attend college, but the answer soon returned to working for the tribe and raising children. Id. at 178. Given the testimony and evidence, it is more likely that Tiara would have completed her GED and returned to the workforce directly. (Even though it is possible for a non-high school graduate, non-GED holder to enroll in community college in Mississippi.) See id. at 174–78; DX–4. At the same time, the Court disagrees with the defense expert’s apparent restriction of Tiara to minimum wage-only jobs, and adopts the range of wages applicable to GED holders.[16]
All in all, the Court will adopt the plaintiff’s expert’s general model, credit the defendant’s argument as to Tiara’s reasonably expected education level, and accept the plaintiff’s expert’s reduction at trial (based upon the personal consumption rate), to assess Tiara’s economic damages at \$740,764. Tr. 241, 254–55.
Finally, both parties’ experts agreed that a component of Tiara’s economic damages should be \$133,969 in lost household services. Those damages will be awarded.
Consequently, Tiara’s economic damages are \$874,733.
2. Aubrey Anna’s Economic Damages
Again, the calculation will be broken down into lost earnings and lost household services.
The Court’s general assessment of the competing expert models applies to Aubrey Anna’s lost earnings. The plaintiff’s expert’s overall model will be applied and reduced to take into account Aubrey Anna’s expected personal consumption rate. The most significant question remaining concerns Aubrey Anna’s education level: would she have completed high school before entering the workforce, or gone on to complete a two-year degree?
It is impossible to answer this question with certitude. Aubrey Anna had no education or work history upon which to base a conclusion about her lost earnings. That does not preclude an award of damages, of course. See TXG Intrastate Pipeline Co v. Grossnickle, 716 So.2d 991, 1016–17 (Miss.1997) (“It is well recognized that Mississippi is equally firm in its determination that a party will not be permitted to escape liability because of the lack of a perfect measure of damages his wrong has caused… Where the existence of damages has been established, a plaintiff will not be denied the damages awarded by a fact finder merely because a measure of speculation and conjecture is required in determining the amount of damages.”) (quotation marks, citations, and brackets omitted); see also Choctaw Maid Farms, Inc. v. Hailey, 822 So.2d 911, 918 (Miss.2002) (“there is no exact yardstick for determining [lost income] damages”) (quotation marks, citation, and brackets omitted). But it does mean the Court must weigh carefully the evidence, as well as guidance from other courts.
*8 For these situations, the Mississippi Supreme Court has provided the following guidance:
The conclusion by the Court of Appeals that the income for the children should be based on some sort of average income for persons of the community in which they lived, as far as we can find, has no basis in our law. Additionally, such a method is just as speculative as basing the recovery on the earning history of the parents. It is both unfair and prejudicial to ground the projected future income of a deceased child on either basis. Both methods result in potentially disparate recoveries for children from affluent communities or with affluent parents, as opposed to children from less affluent areas or with less affluent parents.
Who is to say that a child from the most impoverished part of the state or with extremely poor parents has less of a future earnings potential than a child from the wealthiest part of the state or with wealthy parents? Today’s society is much more mobile than in the past. Additionally, there are many more educational and job-training opportunities available for children as a whole today. We must not assume that individuals forever remain shackled by the bounds of community or class. The law loves certainty and economy of effort, but the law also respects individual aptitudes and differences.
Therefore, we hold that in cases brought for the wrongful death of a child where there is no past income upon which to base a calculation of projected future income, there is a rebuttable presumption that the deceased child’s income would have been the equivalent of the national average as set forth by the United States Department of Labor. This presumption will give both parties in civil actions a reasonable benchmark to follow in assessing damages. Either party may rebut the presumption by presenting relevant credible evidence to the finder of fact. Such evidence might include, but is certainly not limited to, testimony regarding the child’s age, life expectancy, precocity, mental and physical health, intellectual development, and relevant family circumstances. This evidence will allow the litigants to tailor their proof to the aptitudes and talents of the individual’s life being measured. Greyhound Lines, Inc. v. Sutton, 765 So.2d 1269, 1276–77 (Miss. 2000).
It follows that this Court cannot base Aubrey Anna’s expected education level upon her mother’s education level. Such a conclusion would be at odds with the greater number of opportunities available to Aubrey Anna and other children in her generation. See id. And there is no “relevant credible evidence” from either party to bolster or rebut the presumption of using national benchmarks. Id. The defendant was given ample opportunity to rebut the presumption but failed to do so.
If the Mississippi Supreme Court is correct that we live in a more upwardly-mobile society, with “many more educational and job-training opportunities available for children” today than in the past, it is reasonable to expect Aubrey Anna to somewhat exceed her mother’s educational achievement. Id. The Court may also take judicial notice of America’s history of increased educational attainment, i.e., the fact that over time the percentage of the population that graduates from high school and college has risen substantially.
*9 For example, between 1940 and 2009 there was “more than a three-fold increase in high school attainment and more than a five-fold increase in college attainment.” U.S. Census Bureau, Educational Attainment in the United States: 2009, at 1, Feb. 2012, available at https://www.census.gov/content/dam/Census/library/publications/2012/demo/p20-566.pdf. The graphical representation of this trend shows that the increase is fairly consistent and continues to present day—or, more accurately, to 2009, the most recent year data were available. Id. at 3; see generally Gage Raley, Yoder Revisited: Why the Landmark Amish School Case Could—And Should—Be Overturned, 97 Va. L. Rev. 681, 696–97 (2011) (collecting figures showing a substantial increase in educational attainment in the United States over the past 35 years, and attributing the dramatic rise to a stronger, more direct “link between secondary education and business,” the fact that “more jobs now demand greater educational skills,” “[i]ncreasing global competition,” and states’ recognition that they are engaged in an “educational arms race”) (quotation marks and citations omitted); Bill Ong Hing, NAFTA, Globalization, and Mexican Migrants, 5 J.L. Econ. & Pol’y 87, 136 (2009) (“Younger and older workers alike are now more educated as the share of adult native-born men without a high school diploma have plunged, from 53.6% in 1960 to 9.0 [%] in 1998. During that same period, the share with college degrees has gone up from 11.4% to 29.8%.”) (citation omitted).
It bears repeating that no one, not even the capable experts who testified in this suit, can predict accurately what Aubrey Anna would have earned had she survived. She was only 30 weeks old. The Court—which has been given only two options, high school completion or two-year degree holder—must make a reasonable guess informed by prior caselaw, national averages, and long-term trends. It concludes that Aubrey Anna would more likely than not move at least one rung up the ladder of economic opportunity. As a result, her grandmother will be awarded \$773,280 for lost earnings.[17]See Tr. 243–44.
The parties dispute whether the plaintiff may recover the value of Aubrey Anna’s lost household services. The plaintiff’s expert recommended that they be awarded on essentially the same terms as Tiara’s lost household services. Tr. 245. The defendant’s expert thought none were warranted because of an assumption that Aubrey Anna would live alone. DX–2 at 15. Testimony supported that Aubrey Anna would probably not live alone. Tr. 158–60. The plaintiff will be awarded \$133,969 for Aubrey Anna’s lost household services.
As a result, Aubrey Anna’s total economic damages are \$907,249.
B. Non –Economic Damages
Mississippi law defines non-economic damages as:
subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. *10 Miss. Code § 11–1–60(1)(a).
1. Tiara’s Pain and Suffering
At trial, the plaintiff called Dr. Michael Stodard to provide expert testimony on Tiara’s condition. Dr. Stodard testified that Tiara’s stab wound caused air and blood to flow into her chest cavity and slowly fill up the space normally occupied by her lung, causing respiratory distress. Tr. 22–24, 31, 43; PX–27 at 4. In addition, as the air and blood collected, they started to press against Tiara’s lung and heart, which pushed the lung toward collapse and impeded the heart’s ability to fill up and pump blood. Tr. 23–24.
Dr. Stodard testified that respiratory distress results in shortness of breath, suffocation, feelings of smothering, anxiety, restlessness, and “a sense of impending doom.” Id. at 24–25. Not only does the patient know that their breathing is impaired, but the body’s failure to oxygenate—how the lungs exchange oxygen into red blood cells, and the heart pumps that blood around the body—makes the patient feel like they are going to die. Id. at 25. Shock and a steadily decreasing blood pressure can result as the distress escalates. Id. Dr. Stodard explained that all of these symptoms could have been stopped with insertion of a chest tube, which provides immediate relief by draining the chest cavity and permitting the lung to expand. Id. at 26, 28.
Tiara was in distress by 5:42 P.M. and reported a 10 out of 10 pain level at that time. Id. at 37; PX–36 at 1. Dr. Guevarra testified in a deposition that Tiara was “screaming from pain and very restless,” and in obvious pain and distress. PX–49 at 133, 170–71. By 6:40 P.M., Tiara had gone into shock and had an abnormally low blood pressure because too much of her blood was in her chest cavity and not circulating through her body. Tr. 44. Dr. Stodard testified that she was experiencing extreme anxiety and distress, accompanied by a feeling of suffocation and impending doom. Id. at 45.
By 7:00 P.M., a chest x-ray … showed that approximately half of Tiara’s blood was in her chest cavity, indicating that she was in hemorrhagic shock.[18]Id. at 48, 56; see id. at 119. That condition is associated with greater physical and emotional suffering, including feelings of smothering. Id. at 49, 119.
Half an hour later, Tiara was gasping for breath and likely felt like she was drowning, Dr. Stodard said. Id. at 52, 80. She could not lay flat because the blood in her chest would have increased the pressure on her heart. Id. at 54. Instead, she was upright and leaning forward slightly in the tripod position, which helps keep blood away from the heart.[19]Id.; see id. at 102 (testimony of EMT), 166 (testimony of UMC EMT). She told the UMC EMT that she was hurting and having a hard time breathing, and later begged, “please help me.” Id. at 117, 123. At one point, her mother testified, Tiara looked to be in fear of dying and said she was scared. Id. at 167–68. Dr. Guevarra admitted that Tiara was crying out for help. PX–49 at 172.
*11 Dr. Stodard testified that Tiara’s death was a slow process, during which she was conscious and aware of what was going on around her, as well as conscious of her own mortality. Tr. 56, 75–76. Later administration of a sedative (morphine) and a paralytic rendered Tiara unconscious and paralyzed until her death. Id. at 82, 147.
At times, the defendant argued that Tiara suffered relatively little because morphine was provided at or around 5:45 P.M., and also because Tiara became unconscious while being evacuated to UMC. Id. at 323, 325; see Stipulation No. 5. But the considerable evidence recited above shows the degree of her pain and suffering between the first administration of morphine and her later, final fall into unconsciousness. At other times, in fact, the defendant did not deny that Tiara’s death was slow and painful, and that she was conscious of it. Tr. 75. It later acknowledged the pain, significant difficulty breathing, and “awful” panic she suffered. Id. at 323, 325.
Taking all of this into account, the evidence shows that Tiara suffered tremendously, both physically and mentally, before dying. The Court will award \$1.5 million for her pain and suffering and \$500,000 for her mental anguish. See Motorola Comm. & Electronics, Inc. v. Wilkerson, 555 So.2d 713, 724 (Miss.1989); see also Hailey, 822 So.2d at 927–28 (Cobb, J., concurring in part and dissenting in part).
This award is lower than those in other, reasonably similar cases. … Tiara’s lower award is not disproportionate or unreasonable.
2. Aubrey Anna’s Pain and Suffering
The plaintiff introduced, via deposition, the expert testimony of Dr. John P. Elliott, a specialist in maternal fetal medicine, which is also known as high-risk obstetrics. PX–52, at 7. Dr. Elliott testified that Aubrey Anna was entirely dependent upon Tiara receiving adequate oxygen. Id. at 25. When Tiara’s oxygen supply was restricted, Aubrey Anna’s health also suffered. Id. at 31.
*12 For example, Aubrey Anna’s heart rate, which was recorded via fetal heart monitor once at 5:45 P.M. and once more at a later (unknown) time, showed increased stress as a result of Tiara’s deteriorating condition. Id. at 30–31. (Dr. Guevarra admitted as much at her deposition. PX–49 at 134.) As Dr. Elliott put it, Aubrey Anna “was responding to stress by increasing [her] heartbeat. Probably the lack of oxygen that was going on with the mother was affecting the baby at that point, and the baby is pumping its blood faster to get more oxygen per minute.” PX–52 at 31.
The lack of oxygen in Tiara’s body caused a placental abruption—which means part of the placenta separated from Tiara’s uterus—and fatally decreased the oxygen being delivered to Aubrey Anna. Id. at 25–26, 52. In short, Aubrey Anna died from a lack of oxygen. Id. at 52. Her time of death was most likely when Tiara went into cardiac arrest in the helicopter, within 15 minutes of her arrival at UMC.[20]Id. The doctors at UMC delivered Aubrey Anna stillborn. Id. at 50–51.
The defendant asserted that Aubrey Anna “just passed out, went to sleep” without pain or suffering. Tr. 76, 325. “In fact, … more than likely what she did was slowly become deprived of oxygen and just lose whatever consciousness she had. There was no—there was no impact, there was no prodding, no needlesticks, nothing. She just lost oxygen and went to sleep.” Id. at 326. The evidence, though, showed that a 30–week old fetus has well-developed reflexes and can respond to stimuli like touch. Id. at 201, 204. Dr. Elliott, meanwhile, testified that Aubrey Anna’s heart rate increased as her body was stressed from a lack of oxygen. PX–52, at 30–31. Aubrey Anna’s body responded to the lack of oxygen that was killing her by working harder and straining itself. As she was dying, her body displayed its instinctive will to live.
The defendant’s argument that Aubrey Anna merely “went to sleep” glosses over the medical reality that, to borrow defense counsel’s own words, “more than likely what [Aubrey Anna] did was slowly become deprived of oxygen.” Tr. 326. Another way to describe a deprivation of oxygen is “suffocation.” Webster’s Third New International Dictionary (Unabridged) 2285 (1993) (defining suffocate as “to stop the respiration of (as by strangling or asphyxiation): deprive of oxygen: make unable to breathe.”). Suffocation is obviously painful.
It is more likely than not that Aubrey Anna experienced physical pain and suffering before her death. The Court will award \$650,000 for that pain and suffering.
3. Loss of Society and Companionship
Tiara’s two surviving children, seven-year old Elona and five-year old Keontray, are entitled to damages for the loss of society and companionship of their mother. The defendant argues that no such damages may be awarded because “Mississippi does not recognize damages for past and future loss of society and companionship for a child upon the loss of a parent.” Docket No. 61, at 8 (citing Thompson v. Love, 661 So.2d 1131 (Miss.1995)) (emphasis omitted).
*13Thompson was a personal injury case where the parent did not die. In wrongful death cases like ours, though, children are permitted to recover loss of society and companionship damages for the death of a parent. Long v. McKinney, 897 So.2d 160, 169 (Miss. 2004) (“The beneficiaries are entitled to recover for their respective claims of loss of society and companionship.”); Thompson, 661 So.2d at 1136 (McRae, J., dissenting) (explaining difference between loss of companionship recovery in personal injury and wrongful death contexts); Jackson & Miller, 4 Encyclopedia of Mississippi Law § 25:18 (2001). Accordingly, Elona and Keontray will each be awarded \$750,000 for the loss of society and companionship of their mother.
The plaintiff also seeks damages for Elona and Keontray’s loss of society and companionship of their sister, Aubrey Anna. Such damages have long been permitted by the Mississippi Supreme Court. E.g., Miller, 121 So. at 484 (observing that the decedent, a young boy, was “the pride of his father, the joy of his mother, the idol of his sisters, and the boon companion of his brothers”); Gulf, M. & O.R. Co. v. White, 68 So.2d 458, 460 (1953) (“where the interested parties suing for the death of another are the brothers and sisters of the deceased, loss of companionship may be considered as an element of damages”).
Here, the defendant’s specific argument is that the claim fails because there was “no proof of any preexisting relationship between Aubrey Anna Clemons prior to her death and her siblings that could be characterized as affectionate or devoted.” Docket No. 61, at 8. But, of course there was no preexisting relationship between Aubrey Anna and her siblings—she had not been born yet. The defendant deprived the siblings of the opportunity to form a relationship and do all the things that sisters and brothers do with each other, as well as experience the simple joys of life that siblings share.
The defendant’s argument has not taken into account the Mississippi Legislature’s decision in 2004 to amend the wrongful death statute to permit recovery for “the death of any person or of any unborn quick child.” Miss. Code § 11–7–13 (emphasis added); see 2004 Miss. Laws Ch. 515 (H.B.352). The amendment suggests that the legislature intended beneficiaries of unborn children who die a few weeks shy of birth to be treated akin to beneficiaries of children who die a few weeks after birth. A contrary interpretation would render meaningless the legislature’s repeated addition of the phrase “unborn quick child” to the wrongful death statute. Aubrey Anna’s siblings will each be awarded \$400,000 for the loss of society and companionship of their sister.
Kathy Clemons has also lost the society and companionship of her daughter and granddaughter. She testified that when she arrived at UMC and was told that Tiara and Aubrey Anna had died, it all went “blank.” Tr. 169–71. “It’s always cold and hard,” she said. Id. at 171. “I wouldn’t have ever thought I would lose my child like this.” Id. Dr. Owens, who met with Kathy Clemons and her family at UMC to explain what had happened, reported that they were distraught and that not much registered. Id. at 198. “They were very clearly just emotionally devastated.” Id.
*14 On this basis, Kathy Clemons will be awarded \$500,000 for the loss of society and companionship of her daughter Tiara and granddaughter Aubrey Anna. See Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1030 (Miss.2000).
4. Summary of Non–Economic Damages
The total award for non-economic damages is \$5.45 million. Although this amount exceeds the economic damages award of \$1,817,390, the ratio of economic damages to non-economic damages is well within acceptable boundaries.
The Mississippi Supreme Court has upheld damages with far greater disparities than the award in this case. Estate of Jones v. Phillips, 992 So.2d 1131, 1150 (¶ 52) (Miss. 2008) (upholding a \$5,000,000 verdict and finding although economic damages only totaled \$440,511.46, the amount of the verdict was not so excessive as to shock the conscience); Gatewood v. Sampson, 812 So.2d 212, 223 (¶¶ 25–27) (Miss. 2002) (upholding jury verdict of \$308,000 in compensatory damages although proof of lost wages and medical expenses only totaled \$8,002.50); Dorrough v. Wilkes, 817 So.2d 567, 575 (¶ 30) (Miss. 2002) (upholding jury verdict of \$1,500,000 although medical fees and loss of services only totaled \$339,000). Kelly, 88 So.3d at 780.
The 2.99x multiple in our case is lower than the 10.3x, 37.5x, and 3.4x ratios affirmed above.
5. Mississippi’s Cap on Non–Economic Damages [omitted]
6. The FTCA’s Administrative Limitation on Damages
Recall that before filing suit, plaintiff’s counsel mailed the United States a thorough Notice of Claim and two completed SF–95s—one for Tiara and one for Aubrey Anna. PX–4. Each SF–95 sought \$2.5 million in damages, for a total demand of \$5 million. Id. The plaintiff’s recovery in this case may not exceed that sum. 28 U.S.C. § 2675(b); Corte–Real v. United States, 949 F.2d 484, 487 (1st Cir. 1991) (collecting cases).
If Mississippi’s cap on non-economic damages is upheld and applied, the plaintiff will recover less than \$5 million, rendering the FTCA’s limit moot. On the other hand, if Mississippi’s cap is deemed unconstitutional, the FTCA’s limit will be applied to cap the plaintiff’s total recovery at \$5 million.
C. Punitive Damages
Punitive damages are not permitted under the FTCA. 28 U.S.C. § 2674. The plaintiff did not seek to recover them and the Court cannot award them. It will, though, observe that in addition to the evidence already described above, there is even more evidence that could have supported a finding of recklessness and an award of punitive damages. In other words, but for the fact that the government is the defendant, punitive damages would have been assessed.
One revealing piece of evidence is an April 17, 2009, letter from the Clinical Director of the Choctaw Health Center, Dr. C.V. Joshi, to the CEO of the Choctaw Health Center, in which Dr. Joshi warned the CEO about the Center’s condition and urged improvements in the Center’s care. PX–50 at 57–66 (deposition of Dr. Joshi); PX–17 (Dr. Joshi’s letter). The letter’s most salient points are reproduced here:
WITH [BUDGETARY] CUTS IT IS NECESSARY TO TAKE [A] SECOND LOOK AT [THE] LEVEL OF CARE WE CAN OFFER….
In last 10–15 years Emergency medicine in itself has become a separate medical speciality [sic]. These doctors are rigorously trained during their residency program in larger medical centers. These doctors are better equipped to handle critically ill patients with heart attack, CVA; gun shot wounds and seriously hurt MVA patients. In order to stabilize critically ill ER patient some time availability of general surgeon, anesthesiologist, respiratory therapist, and internist with critical care experience and some time help of pediatrician is extremely necessary….
Emergency physicians at CHC are not full time ER physicians. Many of clinic physicians work part time in the emergency room. Even though these doctors take courses such as ACLS and PALS these courses and mock codes by no means substitute for day to day real life experience….
Our staff … mainly consists of family physicians…. We do not have surgeon, anesthetist, and internist with ICU/CCU experience or pediatrician on staff. There fore there is no immediate back up for the ER physician….
*16 IN THE PAST I WAS ABLE TO EASE NEW PHYSICIAN AFTER SEVERAL MONTHS OF EXPOSURE TO UNDERSTAND OUR UNIQUE CULTURE, HEALTH PROBLEMS AND LIMITATIONS OF OUR FACILITY AND HOW TO PRACTICE SAFE MEDICINE IN HIGH RISK AREA SUCH AS EMERGENCY ROOM.
IT IS TIME TO REEVALUATE OUR HEALTH DELIVERY SYSTEM AND MAKE GOVERNING BOARD AWARE ABOUT CHRONIC PROBLEMS
AFTER NEXT FEW WEEKS I THINK GIVING ADEQUATE QUALITY COVERAGE IS ALMOST DIFFICULT. PX–17, at 1–3.
No immediate action was taken. PX–50, at 60. Just a few weeks later, of course, Tiara Clemons was treated at Choctaw Health Center by a family physician who refused to perform a basic procedure. In short, Tiara Clemons was treated by a family physician who had no right to be in an emergency room, but even worse, was in charge of the emergency room, and her superiors knew it. As a result, Tiara and her baby suffered the unalterable consequence.
Additional evidence not discussed may also have supported an award of punitive damages, from Dr. Guevarra not knowing where the chest tube was physically located, to the fact that medical equipment Tiara needed had been broken (for an indefinite period) when she needed it. PX–49, at 59, 66, 69–70.
The bottom line is that serious deficiencies with the care offered at the Choctaw Health Center were known and discussed months before Tiara and Aubrey Anna’s disastrous visit (e.g., Dr. Joshi’s letter), or should have been addressed and resolved beforehand (e.g., the lack of functioning ER equipment). Had prompt action been taken, their deaths may never have occurred. Every justification for awarding punitive damages is present in this case.
[***] As a result of the defendant’s breaches causing the deaths of Tiara and Aubrey Anna Clemons, the plaintiff is entitled to judgment against the defendant in the amount of \$1,817,390 in economic damages, in addition to non-economic damages to be determined after supplemental briefing, but in any event no less than \$500,000.
IV. For the foregoing reasons, the Court finds in favor of plaintiff Kathy Clemons in the amount of \$1,817,390 in economic damages and at least \$500,000 in non-economic damages. …
Note 1. Why do you think the opinion goes out of its way to point out the following: “[B]ut for the fact that the government is the defendant, punitive damages would have been assessed”? Do you agree with the court’s assessment that “[e]very justification for awarding punitive damages is present in this case”?
Note 2. This judicial opinion at times reads like an episode of the tv program, ER (or any other medical drama), albeit one with an unhappy ending. Why do you think it goes into so much factual detail when liability has been conceded ab initio (from the start)?
Note 3. Not all courts are disposed to award significant damages for the loss of a fetus on the grounds of loss of companionship by existing siblings. What do you think is the right balance for tort law to strike?
Note 4. Given what you know about the apportionment of fault and damages, do you think it is reasonable that Tiara’s sister, an intentional tortfeasor who stabbed her, thus causing the initial injury, is excluded from the assessment of liability? Why or why not? What doctrines, or what rationales, support your conclusion? You might think back to Smelser v. Paul from Module 4 (a case involving allocation of damages related to a toddler’s injuries in light of parental immunity).
Note 5. A further critique of damages awards, on grounds of racial and social justice, is that they take a given status or fact at one point in time, and use that to predict future earnings and productivity without adjusting to account for progressive social changes such as increased access to institutions of higher education and correspondingly higher-paying employment. Accordingly, the standard approach fails to account for advances in social justice and increases in socioeconomic equity and thus entrenches inequities. What, if anything, can and should tort law do about this problem? How did this court approach the issue, and what did you think, descriptively and normatively, of its approach?
More generally, how proactive should tort law be in defining who can recover from the losses or deaths suffered by others? We have seen in the context of a wrongful death statute that a beneficiary interest may be created by statute for particular kinds of successors. Should the particular identity of the surviving members of the family unit be closely scrutinized? This is the question raised in the next case.
Langan v. St. Vincent’s was decided before Obergefell v. Hodges , 576 U.S. 644 (2015) struck down any state bans on same-sex marriage and bans on recognizing such marriages duly performed in other jurisdictions, holding them unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution. But Langan v. St. Vincent offers lessons in how courts tread uncertain waters as they articulate the evolving interests of the state and the parties to a suit. In addition, the case offers practice balancing tort law’s interests and purposes with those of competing (or transcending) areas of law in the context of a dispute over statutory construction.
(25 A.D.3d 90)
*91 The underlying facts of this case are not in dispute. After many years of living together in an exclusive intimate relationship, Neil Conrad Spicehandler (hereinafter Conrad) and John Langan endeavored to formalize their relationship by traveling to Vermont in November 2000 and entering into a civil union. They returned to New York and continued their close, loving, committed, monogamous relationship as a family unit in a manner indistinguishable from any traditional marital relationship.
In February 2002 Conrad was hit by a car and suffered a severe fracture requiring hospitalization at the defendant St. Vincent’s Hospital of New York. After two surgeries Conrad died. *92 The plaintiff commenced the instant action which asserted, inter alia, a claim pursuant to EPTL 5–4.1 to recover damages for the decedent’s wrongful death. The defendant moved, inter alia, to dismiss that cause of action on the ground that the plaintiff and the decedent, being of the same sex, were incapable of being married and, therefore, the plaintiff had no standing as a surviving spouse to institute the present action. The Supreme Court, inter alia, denied that motion and the instant appeal ensued. For the reasons stated below, the Supreme Court’s order must be reversed insofar as appealed from.
An action alleging wrongful death, unknown at common law, is a creature of statute requiring strict adherence to the four corners of the legislation [cc] The relevant portion of EPTL 5–4.1 provides as follows:
“The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death” (emphasis added).
The class of distributees is set forth in EPTL 4–1.1. Included in that class is a surviving spouse. At the time of the drafting of these statutes, the thought that the surviving spouse would be of the same sex as the decedent was simply inconceivable and certainly there was no discriminatory intent to deny the benefits of the statute to a directed class. On the contrary, the clear and unmistakable purpose of the statute was to afford distributees a right to seek compensation for loss sustained by the wrongful death of the decedent [c].
Like all laws enacted by the people through their elected representatives, EPTL 5–4.1 is entitled to a strong presumption that it is constitutional [cc] (The plaintiff claims that application of the statute in such a manner as to preclude same-sex spouses as potential distributees is a violation of the Equal Protection Clauses of the Constitutions of the United States and the State of New York. However, any equal protection analysis must recognize that virtually all legislation entails classifications for one purpose or another which results in the advantage or disadvantage to the affected groups (see Romer v. Evans, 517 U.S. 620)). In order to survive constitutional scrutiny a law needs only to have a rational relationship to a legitimate state interest even if the *93 law appears unwise or works to the detriment of one group or the other (see Romer v. Evans, supra). Thus, the plaintiff must demonstrate that the denial of the benefits of EPTL 5–4.1 to same-sex couples is not merely unwise or unfair but serves no legitimate governmental purpose. The plaintiff has failed to meet that burden.
In the absence of any prior precedent, the court would have to analyze whether the statute imposes a broad and undifferentiated disadvantage to a particular group and if such result is motivated by an animus to that group (see Romer v. Evans, supra). However, in this instance, it has already been established that confining marriage and all laws pertaining either directly or indirectly to the marital relationship to different sex couples is not offensive to the equal protection clause of either the Federal or State constitutions. In Baker v. Nelson, 291 Minn. 310, the Supreme Court of Minnesota held that the denial of marital status to same-sex couples did not violate the Fourteenth Amendment of the United States Constitution. The United States Supreme Court refused to review that result (see Baker v. Nelson, 409 U.S. 810). The plaintiff herein cannot meet his burden of proving the statute unconstitutional and does not refer this court to any binding or even persuasive authority that diminishes the import of the Baker precedent.
On the contrary, issues concerning the rights of same-sex couples have been before the United States Supreme Court on numerous occasions since Baker and, to date, no justice of that court has ever indicated that the holding in Baker is suspect. Although in Lawrence v. Texas, 539 U.S. 558, the Supreme Court ruled that laws criminalizing activity engaged in by same-sex couples and potentially adversely affecting their liberty interests could not withstand constitutional scrutiny, every justice of that court expressed an indication that exclusion of marital rights to same-sex couples did promote a legitimate state interest. Justices Scalia, Thomas, and Rehnquist concluded that disapprobation of homosexual conduct is a sufficient basis for virtually any law based on classification of such conduct. The majority opinion of Justices Kennedy, Stevens, Ginsberg, Souter, and Breyer declined to apply an equal protection analysis and nonetheless expressly noted that the holding (based on the penumbra of privacy derived from Griswold v. Connecticut, 381 U.S. 479) did not involve or require the government to give formal recognition to any relationship that homosexuals *94 wish to enter (see Lawrence v. Texas, supra at 578). Justice O’Connor, in her concurring opinion based on an equal protection analysis, specifically excluded marriage from the import of her conclusions, stating simply “… other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group” (Lawrence v. Texas, supra at 585).
Similarly, this court, in ruling on the very same issue in Matter of Cooper, 187 A.D.2d 128, appeal dismissed, 82 N.Y.2d 801, not only held that the term “surviving spouse” did not include same-sex life partners, but expressly stated as follows:
“Based on these authorities [including Baker, supra.], we agree with Acting Surrogate Pizzuto’s conclusion that ‘purported [homosexual] marriages do not give rise to any rights * * * pursuant to * * * EPTL 5–1.1 [and that] [n]o constitutional rights have been abrogated or violated in so holding’” (emphasis added)[c].
Although issues involving same-sex spouses have been presented in various contexts since the perfection of this appeal, no court decision has been issued which undermines our obligation to follow our own precedents. Recently, in the somewhat analogous case of Valentine v. American Airlines, 17 A.D.3d 38, the Appellate Division, Third Department, in denying spousal status to same-sex couples for purposes of Workers Compensations claims, cited both Baker and Cooper with approval. Thus, no cogent reason to depart from the established judicial precedent of both the courts of the United States and the courts of the State of New York has been demonstrated by the plaintiff or our dissenting colleagues.
The fact that since the perfection of this appeal the State of Massachusetts has judicially created such right for its citizens is of no moment here since the plaintiff and the decedent were not married in that jurisdiction. They opted for the most intimate sanctification of their relationship then permitted, to wit, a civil union pursuant to the laws of the State of Vermont. Although the dissenters equate civil union relationships with traditional heterosexual marriage, we note that neither the State of Vermont nor the parties to the subject relationship have made that jump in logic. In following the ruling of its Supreme Court in the case of Baker v. State of Vermont, 170 Vt. 194, the Vermont Legislature went to great pains to expressly decline to place civil unions and marriage on an identical basis. While affording same-sex couples the same rights as those afforded married couples, the Vermont Legislature refused to alter *95 traditional concepts of marriage (i.e., limiting the ability to marry to couples of two distinct sexes) (see Vt. Stat. Ann., tit. 15, § 8; Vt. Stat. Ann., tit. 15, § 1201 [4]). The import of that action is of no small moment. The decedent herein, upon entering the defendant hospital, failed to indicate that he was married. Moreover, in filing the various probate papers in this action, the plaintiff likewise declined to state that he was married. In essence, this court is being asked to create a relationship never intended by the State of Vermont in creating civil unions or by the decedent or the plaintiff in entering into their civil union. For the same reason, the theories of Full Faith and Credit and comity have no application to the present fact pattern.
The circumstances of the present case highlight the reality that there is a substantial segment of the population of this State that is desirous of achieving state recognition and regulation of their relationships on an equal footing with married couples. There is also a substantial segment of the population of this State that wishes to preserve traditional concepts of marriage as a unique institution confined solely to one man and one woman. Whether these two positions are not so hopelessly at variance (to all but the extremists in each camp) to prevent some type of redress is an issue not for the courts but for the Legislature. Unlike the court, which can only rule on the issues before it, the Legislature is empowered to act on all facets of the issue including, but not limited to, the issues of the solemnization and creation of such relationships, the dissolution of such relationships and the consequences attendant thereto, and all other rights and liabilities that flow from such a relationship. Any contrary decision, no matter how circumscribed, will be taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature. Accordingly, the order must be reversed insofar as appealed from.
H. MILLER, J.P., and SCHMIDT, J., concur.
FISHER, J. dissents and votes to affirm the order with the following memorandum, in which CRANE, J., concurs:
The majority’s forceful defense of the Legislature’s prerogative to define what constitutes a marriage in New York seems to me to miss the point. This case is not about marriage. The plaintiff does not claim to have been married to the decedent, and clearly he was not, either under the laws of New York or in the eyes of Vermont.
What this case is about is the operation of a single statute—New York’s wrongful death statute—that controls access to the courts for those seeking compensation for the loss of a pecuniary *96 expectancy created and guaranteed by law. The statute provides such access to a decedent’s surviving spouse because the wrongful death of one spouse deprives the other of an expectation of continued support which the decedent would have been obligated by law to provide (see e.g. Family Ct. Act § 412; Social Services Law § 101[1] ).[21] But, as applied here, the statute does not permit the surviving member of a Vermont civil union to sue for wrongful death, even though, like spouses, each member of the civil union is obligated by law to support the other (see Vt. Stat. Ann., tit. 15, § 1204[c]). The principal question presented, therefore, is whether, as it currently operates to permit spouses but not partners in a Vermont civil union to sue for wrongful death, the law draws a distinction between similarly-situated persons on the basis of sexual orientation and, if so, whether the distinction bears some rational relationship to any conceivable governmental objective promoted by the statute. Because I conclude that the statute as applied here does classify similarly-situated persons on the basis of sexual orientation without a rational relationship to any conceivable governmental purpose furthered by the statute, I respectfully dissent.
The facts are largely undisputed.
The plaintiff, John Langan, and the decedent, Neil Conrad Spicehandler, met in 1986 and soon began an intimate relationship that proved to be both stable and long lasting. Thirteen years later, they were living together in New York when the Supreme Court of Vermont issued its decision in Baker v. State, 170 Vt. 194. The Court held that the Common Benefits Clause of the Vermont Constitution (see Vt. Const., ch. I, art. 7) required that same-sex couples be granted the same statutory benefits and protections enjoyed by persons of the opposite sex who choose to marry, and it ordered the State to fashion a remedy to achieve that result [c].
As the majority correctly points out, Vermont’s Legislature responded by reaffirming the State’s traditional view that “‘[m]arriage’ means the legally recognized union of one man and one woman” (Vt. Stat. Ann., tit. 15, § 1201 [4]). It then established a new, parallel legal status, called a civil union, for same-sex couples not eligible to marry under Vermont law (*97 Vt. Stat. Ann., tit. 15, § 1202). The new legislation prescribed how a civil union could be established (see id.), and how it could be dissolved (see Vt. Stat. Ann., tit. 15, § 1206). And it provided that those who establish a civil union would have the same benefits, protections, and responsibilities as married couples had in Vermont (see Vt. Stat. Ann., tit. 15, § 1204[e]), including, importantly, the responsibility “for the support of one another to the same degree and in the same manner as prescribed under law for married persons” (Vt. Stat. Ann., tit. 15, § 1204[c]).[22]
In November 2000, approximately four months after Vermont’s civil union law went into effect, the plaintiff and the decedent traveled to Vermont with some 40 family members and friends and solemnized a civil union in a ceremony performed by a Justice of the Peace in accordance with Vermont law. After the ceremony, the plaintiff and the decedent returned to their home, and to their lives, in New York.
On February 12, 2002, the decedent was injured in midtown Manhattan by a hit-and-run driver. He was admitted to St. Vincent’s Hospital of New York (hereinafter St. Vincent’s) where he underwent two surgeries to address open fractures to his left tibia and fibula. At first, the plaintiff was told by hospital staff that the surgeries had been successful and that the decedent would be discharged. On the morning of February 15, 2002, however, the plaintiff received a telephone call from a physician at St. Vincent’s informing him that the decedent had died.
The plaintiff subsequently commenced this action against St. Vincent’s, both on his own behalf and as executor of the decedent’s estate. As executor, he sought damages, inter alia, for medical malpractice and lack of informed consent. On his own behalf, he sought damages for wrongful death.
The defendant St. Vincent’s moved, inter alia, to dismiss the wrongful death claim on the ground that the plaintiff was not the decedent’s distributee and therefore could not recover damages for his wrongful death. The plaintiff cross-moved for summary judgment on the issue of his standing to assert the wrongful death claim. He argued that his status under Vermont’s civil union law entitled him to sue as the decedent’s surviving spouse.
In a detailed opinion, the Supreme Court denied St. Vincent’s motion and granted the plaintiff’s cross motion. The court found *98 that, because the plaintiff qualified as a surviving spouse under the laws of Vermont, he was included within the meaning of “spouse” as that term is used in New York’s Estates, Powers and Trusts Law and therefore had standing to recover for the wrongful death of the decedent (see Langan v. St. Vincent’s Hosp. of New York, 196 Misc.2d 440, 765 N.Y.S.2d 411). This appeal followed.[23]
New York’s Estates, Powers and Trusts Law (hereinafter EPTL) allows an action for the wrongful death of any individual who is survived by one or more distributees, with the recovery to provide compensation for economic injuries suffered as a result of the death (see EPTL 5–4.1[1] and 5–4.4[a]). A distributee is any person who may be entitled under law to take or share in the decedent’s property not disposed of by will (see EPTL 1–2.5 and 4–1.1). Distributees include certain of the decedent’s blood relatives, his or her adopted children, and, unless disqualified, his or her “spouse” (see EPTL 4–1.1 and 5–1.2).
The majority writes that it would have been inconceivable to the drafters of the wrongful death statute that the surviving spouse would be of the same sex as the decedent. I agree.
Although the term “spouse” is not defined in the EPTL, its use in several provisions in that chapter leaves no doubt that it was intended to include only those persons joined together in marriage (see Raum v. Restaurant Assoc., 252 A.D.2d 369, 370). For example, both sections 5–1.1(b)(1) and 5–1.1–A(b)(1) of the EPTL explicitly refer to “the date of the marriage” in determining whether a transaction benefitting the “spouse” constitutes a testamentary substitute. Similarly, both EPTL 5–1.1(f)(3)(A) and 5–1.1–A(e)(3)(A) provide, inter alia, that the waiver or release of the right of election is effective, whether executed “before or after the marriage of the spouses.” And, perhaps most significantly, EPTL 5–1.2(a), (a)(1), and (a)(2) provide that, within the meaning and for the purposes of the wrongful death statute, “[a] husband or wife is a surviving spouse” unless, inter alia, “[a] final decree or judgment of divorce, of annulment or declaring the nullity of a marriage … was in effect when the deceased spouse died,” or “[t]he marriage was void as incestuous …, bigamous …, or a prohibited remarriage …”
*99 Significantly, although the EPTL has a number of different statutory sources, these particular sections—1–2.5, 4–1.1, 5–1.1, 5–1.2, and 5–4.1—all share a common predecessor in the Decedent Estate Law (see EPTL 14–2.1), and therefore call for a consistent reading of the word “spouse.” Clearly, then, the drafters of these EPTL sections contemplated that the word “spouse” would apply only to a person who had been married to the decedent at the time of death, and since the notion of same-sex marriage was largely unknown at the time, the majority is correct in saying that it would have been inconceivable to the drafters that the decedent and the surviving spouse would be of the same sex.
Indeed, even in more recent years, although New York’s Legislature has provided same-sex couples with certain rights and benefits, it has not seen fit to include them in the class of persons entitled to assert a wrongful death claim. For example, in the wake of the attacks of September 11, 2001, and more than two years after Vermont established civil unions, the Legislature declared, inter alia:
“that domestic partners of victims of the terrorist attacks are eligible for distributions from the federal victim compensation fund, and the requirements for awards under the New York State World Trade Center Relief Fund and other existing state laws, regulations, and executive orders should guide the federal special master in determining awards and ensuring that the distribution plan compensates such domestic partners for the losses they sustained” (L. 2002, ch. 73, § 1).
Subsequently, the Legislature enacted Workers’ Compensation Law § 4 for the specific purpose of providing death benefits to domestic partners of those killed on September 11, 2001 (see L. 2002, ch. 467, § 1). Indeed, the wrongful death statute itself was amended to lengthen the limitations period for the commencement of actions on behalf of decedents whose deaths were caused by the September 11th terrorist attacks (see EPTL 5–4.1, as amended by L. 2003, ch. 114, § 1). Yet the Legislature did not see fit to grant unmarried domestic partners the right to maintain an action to recover damages for wrongful death.
Because the wrongful death statute is in derogation of the common law, it must be strictly construed (see Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 667). Thus, I agree with the majority that the term “spouse” as used in *100 EPTL 4–1.1 is limited to those persons who were married to a decedent at the time of death and cannot, through statutory construction, be interpreted expansively to include persons like the plaintiff and the decedent here who were partners in a Vermont civil union but were not joined in marriage (see Matter of Cooper, 187 A.D.2d 128).
As an alternative, the plaintiff attempts to invoke principles of equity to secure the right to bring this action. Relying on Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, the plaintiff argues that, even if he does not expressly fall within the meaning of “spouse” as used in the EPTL, New York is nevertheless bound by considerations of equity to recognize his right to recover for the decedent’s wrongful death. In Braschi, the Court of Appeals was called upon to interpret a rent-control regulation providing that, upon the death of a tenant, the landlord may not dispossess “either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant” (id. at 206 [quoting 9 NYCRR 2204.6(d)] ). Noting that rent-control laws must be interpreted broadly to effectuate their purposes (Braschi v. Stahl Assoc. Co., supra at 208), the Court held that the gay life partner of the deceased tenant could, under appropriate circumstances, fall within the meaning of the word “family” (id. at 211).
Unlike the non-eviction right at issue in Braschi, however, the right to assert a wrongful death claim is a vested property right [c] (that does not exist at common law or in equity. As a creature of statute, it must be founded on statutory authority (see Liff v. Schildkrout, 49 N.Y.2d 622, 632). Hence, if the plaintiff does not qualify as a “distributee” under the EPTL, he cannot otherwise assert a wrongful death claim under general principles of equity.
The majority appears to conclude that, simply because the plaintiff and the decedent were not married, “the theories of Full Faith and Credit and comity have no application.” It is certainly true that the constitutional requirement of Full Faith and Credit need not be considered here, if for no other reason than that the plaintiff has specifically disavowed reliance on it.[24] But the plaintiff and amici do strongly argue that New York is *101 bound to afford the plaintiff the right to sue for wrongful death because the doctrine of comity requires recognition of the “spousal rights” he derives from the laws of Vermont. I cannot agree.
A State is never obliged by considerations of comity to surrender its legitimate interests in deference to another State’s policy choices. [***] The plaintiff acknowledges, as he must, that he and the decedent never entered a marriage. Nevertheless, he and amici maintain that the same considerations of comity must lead New York to recognize his Vermont civil union inasmuch as there is nothing to suggest that a civil union of same-sex individuals is abhorrent to the public policy of New York (cf. Workers *102 Comp. Law § 4; Executive Law § 291[1] and [2]; Civil Rights Law § 40–c; 18 NYCRR 421.16 [h][2]; Matter of Jacob, 86 N.Y.2d 651, 662; Braschi v. Stahl Assoc., supra; People v. Onofre, 51 N.Y.2d 476, cert. denied 451 U.S. 987). But recognition of a civil status validly created outside of New York does not necessarily imply that this State will give effect to all of the legal incidents of that status conferred by the foreign jurisdiction that created it. Where those incidents conflict with New York law, our courts will generally decide whether to give them effect by looking to traditional choice-of-law principles. [***]
*103 The right to maintain an action for wrongful death is a legal incident of the status conferred by Vermont’s civil union law (see Vt. Stat. Ann., tit. 15, § 1204[e][2]). On the question of whether to give that incident effect here, I find it significant that there is no evidence that the plaintiff and the decedent had any contacts with Vermont beyond the fact that their civil union was solemnized there. [***] Vermont, therefore, has no legitimate interest in determining whether the plaintiff, a resident of New York, has the right to maintain a wrongful death action against a New York defendant in connection with the death of another resident of New York occurring in this State. Indeed, during virtually all of their lives together, the plaintiff and the decedent resided in New York, and it was in this State that the conduct complained of occurred and the decedent died. Under these circumstances, New York certainly has the most significant contacts with the case and, therefore, the stronger interest in applying the provisions of its own wrongful death law [cc] ([***] Accordingly, like the majority, I reject the contention that the doctrine of comity demands that the plaintiff be permitted to sue in New York for wrongful death.
I turn, then, to the area of my disagreement with the majority’s resolution of the appeal.
When a statute affords different treatment to similarly-situated persons on the basis of a constitutionally cognizable characteristic, the disparity of treatment must, at the least, *104 bear some rational relationship to a legitimate governmental objective promoted by the statute. As the United States Supreme Court long ago explained:
“It is unnecessary to say that the ‘equal protection of the laws’ required by the Fourteenth Amendment does not prevent the states from resorting to classification for the purposes of legislation … But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike” [c].
Stated otherwise, “[t]he Equal Protection Clause … [denies] to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute” (Reed v. Reed, 404 U.S. 71, 75–76). The question to be addressed, therefore, is whether, considering the purpose and objective of the wrongful death statute, there is some ground of difference that rationally explains the different treatment the statute accords to spouses and partners in a Vermont civil union [c].
The purpose of the wrongful death statute is well-defined and firmly established. It is not intended to recompense the survivor for the loss of companionship or consortium, or for the pain and anguish that accompanies the wrongful and unexpected loss of a loved one. It is instead designed solely to make a culpable tortfeasor liable for fair and just compensation to those who, by reason of their relationship to the decedent, suffer economic injury as a result of the decedent’s death (see EPTL 5–4.3[a]). A person suffers economic injury in this context when the death deprives him or her of a reasonable expectation of future financial assistance or support from the decedent [cc].
The plaintiff argues that, with respect to that objective, the wrongful death statute classifies similarly-situated persons on the basis of their sexual orientation. Sexual orientation is a constitutionally cognizable characteristic, and therefore when legislation is challenged on the ground that it classifies and treats persons differently on the basis of sexual orientation, courts will “insist on knowing the relation between the classification *105 adopted and the object to be attained” (Romer v. Evans, 517 U.S. 620, 632). This was so even before the Supreme Court repudiated Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, which upheld statutes criminalizing homosexual sodomy—the very conduct some saw as defining the class (see e.g. Padula v. Webster, 822 F.2d 97, 103). It certainly is true after the Supreme Court expressly overruled Bowers, recognizing that it “demean[ed] the lives of homosexual persons … was not correct when it was decided”, and … “is not correct today” (Lawrence v. Texas, 539 U.S. 558, 575, 560).
As to whether the wrongful death statute classifies on the basis of sexual orientation, I recognize that, in 1998, the Appellate Division, First Department, concluded that it did not, rejecting an equal protection challenge to the statute brought by the surviving member of an informal same-sex relationship not sanctioned by any State [c]. The Court wrote:
“[T]he wrongful-death statute (EPTL 5–4.1), which, by its terms (EPTL 1–2.5, 4–1.1, 5–1.2), does not give individuals not married to the decedent (other than certain blood relatives) a right to bring a wrongful-death action, operates without regard to sexual orientation, in that unmarried couples living together, whether heterosexual or homosexual, similarly lack the right to bring a wrongful-death action, and, as such, the statute does not discriminate against same-sex partners in spousal-type relationships” (id. at 370, 675 N.Y.S.2d 343; [c]).
Leaving aside the fact that opposite-sex couples who remain unmarried do so out of choice while same-sex couples have little choice but to remain unmarried, the classification here is not between unmarried opposite-sex couples who choose to live together in an informal arrangement, and unmarried same-sex couples who do the same. The classification at issue here is between couples who enter into a committed, formalized, and state-sanctioned relationship that requires state action to dissolve and, perhaps most important, makes each partner legally responsible for the financial support of the other. For opposite-sex couples, of course, the relationship is marriage, sanctioned and recognized by the State (see e.g. Domestic Relations Law § 14–a), requiring a divorce or annulment to dissolve (see e.g. Domestic Relations Law §§ 140 and 170), and obligating each spouse *106 to provide for the support of the other (see e.g. Family Court Act § 412; Social Services Law § 101[1]). And, as relevant here, the relationship for same-sex couples is the Vermont civil union, sanctioned and recognized by the State (see Vt. Stat. Ann., Tit. 15, § 1201), requiring a court proceeding to dissolve (see Vt. Stat. Ann., Tit. 15 § 1206), and obligating each party to provide for the support of the other (see Vt. Stat. Ann., Tit. 15 § 1204 [c]).[fn]
With respect to the objectives of the wrongful death statute, spouses and parties to a Vermont civil union stand in precisely the same position. Marriage creates a legal and enforceable obligation of mutual support (see e.g. Family Court Act § 412; Social Services Law § 101[1]), and therefore the death of one spouse causes economic injury to the other because it results in the loss of an expectancy of future support created and guaranteed by law. And, in exactly the same way, because the state-sanctioned Vermont civil union gives rise to a legal and enforceable obligation of mutual support (see Vt. Stat. Ann., tit. 15, § 1204[c]), the death of one party to the union causes economic injury to the survivor because it results in the loss of an expectancy of future *107 support also created and guaranteed by law. Because no statute or authoritative holding in New York now permits or recognizes a marriage except between opposite-sex couples, and because Vermont civil unions are open only to same-sex couples (see Vt. Stat. Ann., tit. 15, § 1202[2]), the operation here of New York’s wrongful death statute to authorize a party to a marriage to recover damages for the wrongful death of his or her spouse, but not to permit a party to a Vermont civil union to recover damages for the wrongful death of his or her partner, in effect, affords different treatment to similarly-situated persons on the basis of sexual orientation.
The question, then, is whether there is a rational relationship between that disparity of treatment and some legitimate governmental interest or purpose (see Romer v. Evans, supra at 631–32, 116 S.Ct. 1620; [cc]; Matter of Cooper, supra at 134, 592 N.Y.S.2d 797).[25] Ordinarily, when constitutional challenges are raised against laws prohibiting same-sex marriage, or laws favoring legal marriages over committed relationships between persons of the same sex, those who defend the challenged provisions do so on the basis of the traditional, religious, cultural, and legal understanding that marriage is the union of one man and one woman, and is the preferred environment for procreation and child-rearing [cc]. Indeed, our own Court has declared that “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a *108 family, is as old as the book of Genesis” (Matter of Cooper, supra at 133, 592 N.Y.S.2d 797, quoting Baker v. Nelson, supra at 312, 191 N.W.2d 185, appeal dismissed 409 U.S. 810; cf. Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535, 541). The issue, therefore, is whether New York’s interest in fostering traditional marriage, and in preferring it to any other relationship between unrelated adults, is in any conceivable way advanced or promoted by a law that authorizes a surviving spouse, but not a surviving member of a Vermont civil union, to sue for wrongful death. Two cases decided by the United States Supreme Court are instructive on this question, and both involve the right to sue for wrongful death.
In Levy v. Louisiana, 391 U.S. 68, the Supreme Court struck down a statute which, because it was construed to authorize only legitimate children to maintain an action for the wrongful death of a parent, precluded five illegitimate children from suing for the wrongful death of their mother. The Supreme Court wrote:
“Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would” (id. at 72, 88 S. Ct. 1509).
And, in the companion case of Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73, the Supreme Court struck down the same statute insofar as it was construed to bar a mother from maintaining an action for the wrongful death of her illegitimate child killed in an automobile accident. Here the court pointedly observed:
“[W]e see no possible rational basis for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death. A law which creates an open season on illegitimates in the area of automobile accidents gives a windfall to tortfeasors. But it hardly has a causal connection with the ‘sin,’ which *109 is, we are told, the historic reason for the creation of the disability” (id. at 75, 88 S. Ct. 1515 [citation omitted]).[26]
I recognize that “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices … [and that, i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification” [cc]. But just as the Supreme Court could find no conceivable rational relationship between any governmental purpose promoted by a wrongful death law and a classification of wrongful death plaintiffs or victims according to their legitimacy, neither can I identify any reasonably conceivable rational basis for classifying similarly-situated wrongful death plaintiffs on the basis of their sexual orientation.
Stated otherwise, I simply cannot reasonably conceive of any way in which New York’s interest in fostering and promoting traditional marriage is furthered by a law that determines, based on a person’s sexual orientation, whether he or she may have access to our courts to seek compensation for the loss of a pecuniary expectancy created and guaranteed by law [c]. *110 And, tellingly, the majority’s rejection of the equal protection claim does not include any hint or suggestion of how preventing the plaintiff from asserting a wrongful death claim promotes the State’s interest in fostering the institution of marriage, “thus leaving [its] constitutional analysis incomplete” [c]. Indeed, the only real effect of the majority’s position is to provide a windfall to a potential tortfeasor.
Accordingly, I respectfully dissent and would hold that the application of New York’s wrongful death statute to deny the right of a surviving member of a Vermont civil union to maintain an action to recover damages for the wrongful death of his or her partner is inconsistent with the right to equal protection of the laws. I would further hold that the proper remedy is to extend the benefit of EPTL 5–4.1 to include the plaintiff as a surviving member of a Vermont civil union (see People v. Liberta, 64 N.Y.2d 152, 170, cert. denied 471 U.S. 1020; see also Califano v. Westcott, 443 U.S. 76, 89–90). In my judgment, therefore, the order appealed from should be affirmed insofar as appealed from.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the motion which was to dismiss the cause of action to recover damages for wrongful death is granted, the cross motion is denied, and the cause of action to recover damages for wrongful death is dismissed.
Note 1. The court cites an institutional competence rationale partially to explain its ruling (“Unlike the court, which can only rule on the issues before it, the Legislature is empowered to act on all facets of the issue including but not limited to, the issues of the solemnization and creation of such relationships, the dissolution of such relationships and the consequences attendant thereto, and all other rights and liabilities that flow from such a relationship” (at p. *95)). How does the dissent come out on this issue? What is the dissent urging?
Note 2. The dissent’s efforts to frame the issue did not convince the remaining members of the court, but they are worth our attention: “What this case is about is the operation of a single statute—New York’s wrongful death statute—that controls access to the courts for those seeking compensation for the loss of a pecuniary expectancy created and guaranteed by law.” Insisting on one technical definition of “spouse” in this context follows a formalistic understanding of law; broadening it to align with the plaintiff’s real-life circumstances would serve a more functionalist vision of law. Setting aside the very important equal protection issues—since Obergefell v. Hodges, 576 U.S. 644 (2015) appears to have resolved those for subsequent cases on this issue—which understanding of “spouse” is more persuasive to you and why?
Recently, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ___ (2022). Because the right to abortion had been understood as originating in a fundamental right to privacy on which a line of other cases likewise relied, commentators have wondered whether Obergefell and other protections for same-sex couples could be endangered. Several justices have stated that Dobbs does not imperil existing protections relevant for the LGBTQ community, notwithstanding its concurrence by Justice Thomas, in which he calls for reconsidering all precedents based on the Court’s substantive due process jurisprudence, including Obergefell (Slip Op. at 3). Judicial, executive and legislative changes on the horizon seem likely. Consider which entity you believe most appropriate to shape policy on these significant issues, and why. Does your answer depend on the issue’s political salience or do you hold the same beliefs about institutional competence with respect to other areas you have studied in tort law?
1. The deaths generated two lawsuits, which have been consolidated. The first suit was filed by Kathy Clemons, as guardian of the minor children, Elona and Keontray Clemons, and on behalf of the wrongful death beneficiaries of Tiara Clemons (the mother of Elona and Keontray). The second suit was filed by Kathy Clemons, as guardian of the minor children, Elona and Keontray Clemons, and on behalf of the wrongful death beneficiaries of Aubrey Anna Clemons (the sister of Elona and Keontray).
2. This was approximately one hour and twenty minutes after Tiara arrived in the emergency room, and it was thirty minutes after internal bleeding was confirmed.
3. This blood pressure reading was obviously lower than that recorded when she arrived.
4. No explanation for Dr. Guevarra’s failure was provided at trial.
5. Evidence shows that UMC AirCare was called and dispatched at 6:47 p.m. PX–37, at 3. The UMC EMTs arrived on the scene at 7:23 p.m. Id.; see Tr. 114.
6. Testimony indicated that Tiara was “breathing twice as fast as she normally should be.” Tr. 53.
7. One UMC EMT testified that Dr. Guevarra “said she did not feel comfortable doing [the chest tube insertion], that she was a family doctor and that she was not going to do it.” Tr. 120. This exchange followed: Q [by counsel for plaintiff]. So is it fair to say at 7:30 p.m. you warned Dr. Guevarra ... if she didn’t put that chest tube in both Tiara and the baby were going to die? A [by UMC EMT]. Yes. Q. In response to that warning did she take any other action? A. No. Q. What did she do, if anything? A. Honestly she left the room. Q. Did she come back? A. I did not see her after that. Q. So after the warning she basically left you and Mr. King to treat Tiara and Aubrey Anna? A. Yes. Q. And no other physician came? A. I did not see any. Id. at 121. The UMC EMTs even offered to show Dr. Guevarra how to insert a chest tube “and basically coach her through the process,” since they had seen the simple procedure done many times, but were rebuffed. Id. at 127, 136–37, 148–49. (The EMTs were not authorized to perform the procedure themselves. Id. at 69–70, 138.) In her deposition, Dr. Guevarra confirmed that she declined to insert a chest tube. PX–49 at 142–44. Plaintiff’s expert Dr. Stodard testified that physicians at a Level IV trauma center should “absolutely” have been able to insert a chest tube, as that was an “essential” procedure. Id. at 35. “[I]f you can’t do that you should not have trauma patients coming to your door.” Id.; see also id. at 198–99 (testimony of Dr. Owens that “[m]ost upper level providers have had some degree of experience [inserting chest tubes].... The people who are in critical care situations are very well versed in them.”).
8. 300 ml is slightly more than 10 ounces. The UMC EMT testified that this procedure produced “the most [blood] I’ve ever seen out of a needle [thoracostomy],” and concluded that Tiara’s “hemothorax was very very significant.” Tr. 126. And yet it would not have been necessary if the physician had inserted a chest tube. Id. at 26. A needle thoracostomy is “a quick fix” only, performed “just to buy you some time,” because it does not drain as much blood as a chest tube, and because the blood continues to flow into the lung. Id. at 26, 58–59, 127–28.
9. This is approximately 2.5 liters of blood—a shocking amount.
10. While this stipulation hedges on the existence of any wrongful or negligent acts by using the term “if any,” the United States conceded liability shortly before trial. Stipulation Nos. 22–25 confirm that employees of the United States breached the standard of care, causing Tiara and Aubrey Anna’s deaths.
11. The government has explained the situation as follows: The CHC is a Section 638 contract facility (Public Law 93–638), operated pursuant to the Indian Self–Determination and Education Assistance Act, 25 U.S.C. § 450f(a) (1994). The Act provides that tribes may enter into self-determinative contracts with the Secretary of the Interior and the Secretary of Health and Human Services (HHS) to administer programs or services that otherwise would be administrated by the federal government. For the purposes of 42 U.S.C. § 233, such tribal facilities are deemed part of the Public Health Service, and their employees are deemed Public Health Service Employees while acting within the scope of their employment in carrying out the contract. The FTCA provides the exclusive remedy for any related claims. However, neither the Department of the Interior or HHS has any authority or input to the employment of any person providing care at such facilities. Their employment is exclusively a matter of tribal control. While HHS could arguably decertify a facility such as CHC, such action would involve political decisions at the highest level of the federal government and would be characterized as actions between nations, i.e. the United States and the Choctaw Tribe. Any amounts paid as damages in the present case will come from the judgment fund of the United States and not from the Choctaw Tribe. Docket No. 61, at 4 n. 2.
12. The individual is Tiara’s sister, Marena Clemons, who for her act was charged with a crime under tribal law and served time in the tribe’s custody. Tr. 176–77. For several factual and legal reasons, however, Marena is not liable for Tiara and Aubrey Anna’s deaths. The facts show that the stab wound was relatively minor and not the proximate cause of the deaths. The paramedic dispatched to the Clemons’ home testified that Tiara’s stab wound “was just a slit in the skin” that did not look bad and was not bleeding. Id. at 92–93. At that point Tiara was breathing well, had normal vital signs, and did not want to go to the hospital. Id. at 93, 95. Her mother testified that Tiara was calm and not experiencing any physical difficulties then. Id. at 164–65. The injury should have been easy to repair and resolve. Further, as will be discussed later, the parties agree that under Mississippi law, “no fault or responsibility for the death of Tiara or Aubrey Anna Clemons can be apportioned or assigned to Marena Clemons or any other intentional tortfeasor for purposes of reducing or mitigating liability attributable to the United States for the deaths, or damages owed by the United States to the wrongful death beneficiaries.” See Part III, infra; Docket No. 61, at 9.
13. Dr. Guevarra continued to staff the emergency room at Choctaw Health Center for several months after Tiara and Aubrey Anna’s deaths. PX–49 at 174.
14. This case magnifies the enormous difficulties inherent in wrongful death damages awards. Somehow dollar amounts must be assigned to the grief the decedents’ loved ones endured because of the medical providers’ negligence. As noted by one commentator: “Grief is a readily foreseeable and very real consequence of wrongful death. It can kill a human spirit as effectively as a motor vehicle crash can still a beating heart. Survivors of persons lost to sudden violent death suffer not only the lifetime loss of their loved one, but trauma induced by the loss and the manner in which it occurred.” Andrew J. McClurg, Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U. L. Rev. 1, 9–10 (2005). In addition, Tiara and Aubrey Anna actually endured pain and suffering prior to their deaths. In fact, Tiara saw death, but she could not turn her head or do anything to slow or stop it, which must have increased her anxiety. She was not here to testify about the emotion and feeling which engulfed her during this tragedy. The difficulty of placing a dollar figure on these and other intangibles does not escape the Court.
15. The Court is necessarily constrained by its inability to conduct its own analysis. It cannot decide that one expert’s take on two variables is better reasoned, import them into another expert’s overall more compelling approach, and re-run the model. Instead, the Court can choose between variables only where the experts have provided differential analyses; and then, from what remains, select the more persuasive overall analysis.
16. Another reason Tiara should not be limited to minimum wage jobs is that one of her prior employers paid her more than the minimum wage. Tr. 329.
17. The Court makes this finding notwithstanding the parties’ unnecessarily myopic perspective on Aubrey Anna’s expected educational attainment. The problem was illuminated most clearly when counsel for the plaintiff cross-examined the defendant’s expert economist. The expert failed to reconcile how in another case he had assumed that a deceased five-year old could have attended a four-year college, but here would not assume that Aubrey Anna, a 30–week old fetus, could have attended a four-year college. See Tr. 295–96, 304; see PX–55, at 5. Further, when questioned by the Court, the expert admitted that “most economists” would include a scenario where the child would finish college. Tr. 304. Yet here no such scenario was presented by either side’s expert economist. Both parties should have considered whether Aubrey Anna could have attended a four-year college.
18. The evidence shows that Tiara needed additional blood in order to keep blood circulating through her body. PX–52 at 39–43. The Choctaw Health Center, though, had no blood on hand and no place to keep blood. PX–49 at 158; see also PX–6 at 3 (Defendant’s Responses to Plaintiff’s First Request for Admissions). Nor did it have a machine that could take Tiara’s recovered blood and re-circulate it through her body. PX–52 at 42.
19. There was some discussion at trial about the tripod position being a natural or instinctive stance the body adopts to facilitate breathing. Tr. 136.
20. These 15 minutes could easily have been made up for earlier. Recall that Tiara had waited approximately 90 minutes in the Choctaw Health Center before Dr. Guevarra attempted to arrange a transfer to a better-equipped hospital.
21. The statute does not limit wrongful death plaintiffs to spouses. Indeed, in some circumstances, because of their possible financial expectancy, the statute authorizes wrongful death suits by a decedent’s relatives as far distant as first cousin, once removed (see EPTL 4–1.1[a] [7].
22. Effective October 1, 2005, Connecticut became the second State to allow same-sex couples to enter into civil unions conferring “all the same benefits, protections and responsibilities under law ... as are granted to spouses in a marriage” (Conn. Public Act No. 05–10, § 14).
23. New York’s Attorney General has submitted a brief amicus curiae urging affirmance, and the Court has received a second amicus brief, also urging affirmance, submitted by the Association of the Bar of the City of New York, and joined in by the New York County Lawyers’ Association, the Women’s Bar Association of the State of New York, and the New York Chapter of the American Academy of Matrimonial Lawyers.
24. I note that, in any event, “the Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate” (Franchise Tax Bd. of California v. Hyatt, 538 U.S. 488, 494, [citation and internal quotation marks omitted] ) so long as the State has “a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair” (Allstate Ins. Co. v. Hague, 449 U.S. 302, 312).
25. The right to equal protection as guaranteed by the New York State Constitution is co-extensive with its federal counterpart [c].
26. In contrast, the Court did find a rational relationship between the classification and the statutory purpose when it considered a challenge to the constitutionality of Louisiana’s intestate succession statutes which barred even publicly-acknowledged illegitimate children from sharing equally with legitimate children in the estate of their father when he died without a will. The Court upheld the statutes, noting, inter alia, that they clearly had a rational basis “in view of Louisiana’s interest in promoting family life and of directing the disposition of property left within the State” (Labine v. Vincent, 401 U.S. 532, 536 n. 6; emphasis supplied; but see Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 [striking down, on equal protection grounds, a provision of Illinois’ Probate Act which allowed illegitimate children to inherit by intestate succession only from their mother]). | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/06%3A_Damages/6.04%3A_Implications_for_Social_Justice.txt |
Defamation is a distinctly different sort of legal claim from those covered in the course so far. It is in some key respects a hybrid tort. It usually requires some intent, making it at least partly an intentional tort insofar as the elements include (1) adefamatory statement (2) about the plaintiff (3) intentionally made (or “published”) to a third party, (4) without privilege or authorization to do so, that (5) caused “special damages” (which are pecuniary losses) or falls into a category of enumerated kinds of communications whose for which such damages may be presumed.
Yet contemporary defamation has become something of a hybrid tort. In some instances, such as when speaking about a private figure on a private matter, intent may not be needed and mere negligence may be deemed sufficient to allow recovery. Contemporary defamation’s culpability standard reflects the possible range from a minimum of fault amounting to at least negligence on the part of the publisher to a special standard you will learn about, known as “actual malice.” However, at common law, defamation was a strict liability tort, so the plaintiff was not required to prove fault merely to make out a claim.
It is important to learn the elements of defamation at common law because they shape pleading requirements and various defenses. However, it is equally important to understand at the outset that you will be learning about significant changes that have produced our contemporary defamation laws. For instance, until 1964, states were free to allow plaintiffs to bring defamation claims in strict liability; after that time, they were forbidden from doing so. In an unprecedented move, the Supreme Court handed down a landmark decision that year and thus launched an era of several decades of “constitutionalizing” state defamation law.
One reason for the complexity associated with studying defamation law is that it varies a great deal by state and the common law rules are arcane and technical. Yet another is the need to understand the law before and after its constitutionalization. Defamation cases are compelling, however, both legally and culturally, and they make efforts to learn the relevant law well worth it.
Defamation’s Elements at Common Law, A Deeper Dive
(1) A defamatory statement. The first element at common law is a defamatory statement. Historically, there was some variety regarding whether the burden was initially on the plaintiff to prove falsity (which is the modern trend) or whether it was up to the defendant to prove the truth of the communications as an affirmative defense. However at common law most jurisdictions, permitted the plaintiff to presume falsity (at least until 1964). This meant that the initial burden of proving truth or falsity was placed on the defendant rather than the plaintiff. That burden allocation reflected great solicitude for the reputational interests protected by the tort of defamation and a correspondingly lower protection for speech.
The standards and process for how to determine a statement’s defamatory potential meaning and impact were largely the same at common law as they are today even if the terminology has been modernized in some jurisdictions to some extent. Whether a statement was potentially defamatory is a question of law for the court. Whether it was indeed defamatory in its reception by others is a question for the jury, however. A statement is defamatory if it can be understood as an untrue communication that subjects the plaintiff to scorn or ridicule in the eyes of others. In evaluating any allegedly defamatory statement, the test is the effect it is “fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.” Corabi v. Curtis Publishing Company, 441 Pa. 432, 447 (1971). Opinions, even when negative, are usually protected from defamation claims. In order for an opinion to be actionable, the “allegedly libeled party must demonstrate that the communicated opinion may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.” Beckman v. Dunn, 276 Pa. Super. at 535, 419 A.2d at 587, citing Restatement (Second) Torts, Section 566 (1976). Mere statements of opinion that do not imply facts are not actionable. Defamation is a tort that protects against the reputational harm caused by allegations of false facts not simply unflattering opinions.
• Statements defamatory on their face: Some statements are very obviously defamatory and clearly identify the plaintiff. In such cases, at common law the plaintiff needed only to prove that the defamation was published to a third party without privilege and that this publication had either caused them pecuniary loss (“special damages”) or fell into a category that permitted the plaintiff to presume damages.
• Statements not defamatory on their face: However, if a statement’s meaning was unclear or not clearly about the plaintiff, the plaintiff faced additional pleading requirements. In a special part of the pleading known as the inducement, the plaintiff was required to offer extrinsic evidence and support for their theory of why the statement was defamatory and referring to them. The innuendo was the plaintiff’s explanation of how the statement was to be understood as defamatory.
(2) About the plaintiff. The statement must be “of and concerning” the plaintiff. This is still sometimes referred to as the colloquium requirement. In many cases, the defamatory statement clearly identifies the plaintiff, but if there is doubt on this question, or if the statement could plausibly be made to refer to many different possible people, the plaintiff must prove that it referred to them.
(3) Made to a third party, or “publication.” The tort of defamation is not designed to protect against hurt feelings but rather to guard against the loss of standing in the minds of people other than the plaintiff. Consequently, defamation requires that at least one third party have heard or seen the allegedly defamatory content. This is known as the “publication” requirement. A defamatory statement need not be “published” in the lay sense that describes a book or magazine’s publication, or even a website’s being posted or updated. For instance, an oral communication may be a publication. What matters is that it be an intentional communication to a third party.
(4) Publication must have been made without a justification or privilege. A privilege may be conditional or absolute, rather like the forms of immunity described in Module 4. An absolute privilege extends, for instance, to judicial proceedings and there can be no defamation claim pertaining to statements made about the parties in connection with a lawsuit, so long as the matters discussed are pertinent to the lawsuit. In suing a physician for medical malpractice, for instance, it would not be relevant to make allegations that they were an adulterer, unfriendly neighbor, or irreligious person, for instance (unless something about those characteristics caused the malpractice). Going off topic exceeds the scope of the privilege. A conditional (or “qualified”) privilege arises in particular contexts based on the idea that some interests could be harmed or limited if people did not speak due to fear of defamation liability. For instance, qualified privileges shield from liability hiring conversations between a potential and former employer. Similarly, such privileges protect admissions processes through which entities may provide references or letters of recommendation for a prospect. These parties can discuss the prospective employee’s or student’s record and performance without fear of a defamation suit’s succeeding, even if they share negative impressions of the applicant. Generally, such conversations are protected based on a theory that they are based on a mutual interest in the need for accurate informational exchange. (You will learn more about defenses and privileges below, but it is important to understand that a successful defamation claim requires that the publication of the statement not be privileged. You can think of this as somewhat analogous to the way that defeating “consent” can play a role in the plaintiff’s making out a prima facie case when pleading battery.)
(5) Caused“special damages”orqualifies for presumed damages. In a significant number of defamation scenarios at common law, harm could be presumed. This possibility has become much more limited with the constitutionalization of defamation law. However, at common law, there were two major categories of communications in which harm could be presumed: libel or slander per se. If a plaintiff could make out a claim for libel or slander per se, the plaintiff benefited from being able to presume harm rather than proving it up. By contrast, when claiming only slander (a broader category than slander per se), the plaintiff needed to prove special damages (that is, economic losses caused by the alleged defamation). This was (and is) a notoriously difficult burden to meet, which is why the presumption was traditionally allowed. Permission to presume such harm has been sharply limited in our era due to rulings by the Supreme Court’s holding that constitutional obligations to protect free speech take precedence over reputational interests in a number of scenarios.
Another way of putting this is that there is a special category of statements treated as so presumptively harmful that they are considered defamation per se, and they permit a party to presume damages under certain conditions. Conceptually, this may remind you of some of the intentional torts, such as battery, trespass and conversion. Recall that with those three torts, merely proving the elements permits the plaintiff not to have to prove they have suffered harm. Showing that a protected interest has been invaded effectively allows the plaintiff to presume the harm. Damages awarded in connection with those earlier intentional torts may be low or nominal in such cases, depending on the facts at hand. But the cases won’t fail for lack of ability to prove harm. Defamation features a similar potential benefit, at least in perse cases, when other conditions are met.
Exam Tip: Remember, Defamation Vindicates Reputational Loss, Not Hurt Feelings.
Defamation is the tort that protects individuals’ reputations. The measure of injury isn’t whether the plaintiff thinks their reputation could suffer but whether the reputation actually has suffered, or could have suffered, in the minds of others. It is not intended to vindicate mere hurt feelings (though it often accompanies hurt feelings, emotional distress, and claims for IIED and/or invasion of privacy). For this reason, allegedly defamatory communications must have been made to a party other than the plaintiff, which is known as the “publication” requirement, and they must convey meanings about the plaintiff that are not merely negative but also false.
(72 So.3d 5)
[***] On September 14, 2001, Federal Credit and Fuller entered into a “Deferred Presentment Service Agreement” (“the contract”), under which Fuller borrowed \$1,000 from Federal Credit. Pursuant to the contract, Fuller provided Federal Credit with two checks in the amount of *7 \$500 each, plus one check in the amount of \$300 for a “service fee”; under the terms of the contract, Federal Credit agreed to hold Fuller’s checks until the “presentment date,” i.e., the date payment was due under the contract, October 5, 2001. Fuller, however, failed to pay the amount due under the contract on or before the presentment date. Shortly thereafter, Federal Credit presented Fuller’s checks to the bank on which the checks were drawn; the bank returned each of Fuller’s checks to Federal Credit stamped “account closed” and “payment stopped.”
On October 8, 2001, Federal Credit mailed Fuller a document styled as a “10 Day Legal Notice” (“the notice”); Federal Credit addressed the envelope containing the notice to Fuller’s employer, Charter Communications (“Charter”), with “Mr. Fuller” handwritten in significantly smaller letters immediately below “Charter Communications.”[1] When the notice arrived at Charter, three or four other employees of Charter, including Fuller’s boss, Tom Salters, viewed the notice before Fuller was called into Salters’s office and presented with the notice.[2] The notice stated:
“This statutory notice is provided pursuant to Section 13A–9–13[.]2 of the Code of Alabama. [fn] You are hereby notified that a check, apparently issued by you, has been dishonored. Pursuant to Alabama Law, you have ten (10) days from receipt of this notice to render payment of the full amount of such check or instrument plus service charges, the total amount due being \$1573.00. Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that you delivered the instrument with intent of [sic] defraud and may turn over the dishonored check and all other available *8 information relating to this incident to the proper authorities for criminal and/or civil prosecution. A photocopy of your bad check which will be part of the evidence presented against you should this matter be transferred to the proper authorities, is attached for your review. This company utilizes the services of the District Attorney Worthless Check Unit and District Court System.”
(Boldface type and emphasis in original.) Copies of Fuller’s two checks for \$500 and one check for \$300 appeared at the bottom of the notice. Federal Credit had “stamped” the notice numerous times, including as follows: “DISTRICT COURT FILE EVIDENCE DATA BASE FILE # 8802 ds” next to each check; and “APPROVED OCT 8 2001 FOR PICKUP TO ALABAMA DISTRICT COURT AUTHORIZATION CODE: 8805–d.s.” (Capitalization in original.)
On October 10, 2001, Federal Credit filed a statement of claim in the small-claims division of the Marshall District Court, seeking a judgment in the amount of \$1,573, plus court costs. On December 17, 2001, the district court entered the following notation on the case-action-summary sheet: “[Fuller] enters consent judgment for \$1500.00 plus cost[s] for the purpose of appeal to circuit court to file counter-claim in excess of jurisdictional amount of small claims court.” On the same day, Fuller appealed to the Marshall Circuit Court.
In August 2002, Fuller filed in the circuit court a counterclaim against Federal Credit, seeking compensatory damages in the amount of \$50,000 and punitive damages in the amount of \$5,000,000 on claims alleging defamation and “violation of the [Alabama] Small Loan[ ] Act and usury.” The case was tried before a jury beginning on April 12, 2006. At the close of Fuller’s case-in-chief, Federal Credit orally moved the circuit court for a “directed verdict,” [fn] arguing, in sum, that Fuller had failed to prove the elements of either defamation or usury; the circuit court partially granted Federal Credit’s motion, dismissing Fuller’s usury claim.
On April 13, 2006, the jury returned a verdict in favor of Fuller on Fuller’s defamation claim, awarding Fuller compensatory damages in the amount of \$25,000 and punitive damages in the amount of \$35,000.[3] On May 12, 2006, Federal Credit filed a motion for a new trial; a motion for remittitur; and a “renewal motion for a judgment as a matter of law.” In the last of those motions, Federal Credit argued that it was entitled to a judgment as a matter of law because, it said:
“Greg Fuller alleges that a letter being sent to him via his employer seeking repayment of a debt defamed him. Although indebtedness may be defamatory, the fact that he owed Federal Credit … was absolutely true. Truth is an absolute defense to defamation. [c]
“All statements in the communication were true. The letter states that Federal Credit … utilized the services of the District Court System to collect on unpaid accounts. This statement is true and is not defamatory. In fact, Federal Credit … did just that by initiating this *9 cause of action. The letter states that Federal Credit … utilizes the services of the District Attorney Worthless Check Unit. This also is true. This statement recites company policy and does not defame Greg Fuller. Pursuant to Alabama law, a District Attorney can be utilized to collect on deferred presentments wherein the account has been closed or no account is in existence. [***] These statements do not defame Greg Fuller.” [***]
“To establish a prima facie case of defamation, a plaintiff must show:
“ ‘[1] that the defendant was at least negligent [2] in publishing [3] a false and defamatory statement to another [4] concerning the plaintiff, [5] which is either actionable without having to prove special harm (actionable per se) *10 or actionable upon allegations and proof of special harm (actionable per quod).’ ” [cc]
Truth is a “complete and absolute defense” to defamation. [cc] Truthful statements cannot, as a matter of law, have a defamatory meaning. [***]
In his counterclaim, Fuller contended that the following statements set forth in the notice were false: (1) “[T]hat [Fuller] delivered the instrument with intent of [sic] defraud.” (emphasis in original); (2) that “[t]his company [Federal Credit] utilizes the services of the District Attorney Worthless Check Unit and District Court System.” (Boldface type and emphasis in original.)
There was a paucity of evidence presented at trial regarding Federal Credit’s allegedly defamatory statements. Regarding Fuller’s allegation that Federal Credit defamed him by stating in the notice that Fuller had “delivered the instrument with intent of [sic] defraud,” the only evidence Fuller presented at trial was his testimony that he did not “write those checks with the intent to defraud anyone.”
The notice does not specifically state that Fuller delivered the checks to Federal Credit with the intent to defraud Federal Credit; rather, the notice states, in relevant part: “Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that [Fuller] delivered the instrument with intent of [sic] defraud and may *11 turn over the dishonored check … to the proper authorities for criminal and/or civil prosecution.” (Original emphasis omitted.) Considering the above-quoted statement in its entirety (rather than, as Fuller has done, considering only a selective part of the statement), it is clear that the statement was not an allegation that Fuller intended to defraud Federal Credit when he wrote the checks, but was instead simply a notification to Fuller of the potential consequences if he failed to pay the amount due under the contract. Although Fuller and the other employees of Charter who saw the notice might have mistakenly construed the statement as accusing Fuller of intentionally defrauding Federal Credit, the statement was not false and, therefore, is not actionable.[4][***]
In view of the evidence in the record, we conclude that Fuller failed to meet his burden of making a prima facie showing that false information was reported in the notice seen by other employees of Charter; thus, Federal Credit was entitled to a judgment as a matter of law on Fuller’s defamation claim. See Liberty Loan Corp. of Gadsden v. Mizell, 410 So.2d 45, 49 (Ala.1982) (reversing the trial court’s judgment in favor of the plaintiff and directing the entry of a judgment for the defendant, concluding, in part, that a truthful statement indicating that the plaintiff owed a debt to the defendant and had refused to *12 pay the debt was not defamatory). Accordingly, the circuit court’s judgment in favor of Fuller is due to be reversed and a judgment rendered for Federal Credit on Fuller’s claim against it. [***] For the reasons discussed above, we reverse the circuit court’s judgment and render a judgment for Federal Credit.
Note 1. What was Fuller claiming were the defamatory communications about him? Why did the court reject his theory?
Note 2. What had Fuller done, regarding the payments towards the debt he owed?
Note 3. Does the court find that the “publication” requirement had been met?
Check Your Understanding (7-1)
Question 1. True or False: Defamation at common law always required that the plaintiff prove special damages.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. In Fuller, the most important factor in the plaintiff’s failure to recover for defamation was likely:
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Heightened Pleading Requirements at Common Law. Defamation possessed that same “checklist” quality of the early intentional torts reflecting their common origin in the writ system. In fact, defamation was historically subject to extremely strict pleading requirements, perhaps even to a greater extent than the other intentional torts you learned about in Module 2. It was a benefit to the plaintiff to forgo having to plead any fault (because recall that defamation was historically a strict liability tort). Yet if the plaintiff erred or omitted any of the arcane and technical requirements in their pleading, the claim would fail. Truth was a defense at common law although in many jurisdictions, even a minor, trivial mistake could defeat the defense of truth. Indeed, the default rule regarding defamation suits tended to protect reputational interests over those of speakers and publishers. Put another way, the burdens were heavier for defendants than for plaintiffs, and this was so by design.
Lower Substantive Requirements for Plaintiffs at Common Law. Whether the communications were true was, at common law before 1964, less important in the first instance than the fact that they had been uttered: if the plaintiff could prove this, and the defamatory meaning was clear, then the plaintiff won unless the defendant could prove the statements were true. In the contemporary era, plaintiffs usually bear the burden of proving falsity, in addition to making clear the defamatory aspects of the communication. The plaintiff usually loses if they cannot prove falsity. This shift in the burden from defendant (proving truth) to plaintiff (proving falsity) reflected profound changes in the view of the tort of defamation. Can you see why it mattered?
In addition, although at common law defamation was a strict liability tort, contemporary defamation law now requires proof of culpability in nearly all instances. This is either because of constitutional constraints that the Supreme Court articulated and expanded on or because state courts and legislatures have opted to include a minimum fault level, “at least negligence,” which can vary according to multiple factors you will learn about over the course of this Module.
Defamation’s variable culpability standard is likely the most difficult aspect to understand for those learning contemporary defamation law. The culpability the plaintiff will need to prove is largely determined by the identity of the plaintiff, but it may also be affected to some extent by the general topic of the communication as well as the identity of the speaker (since in at least a few jurisdictions, media defendants are held to slightly different rules, and may avail themselves of slightly different defenses). Understanding the variety that constitutes the culpability requirement necessitates familiarity with case law you have yet to learn, but it is impossible to summarize contemporary defamation law responsibly without addressing the variable culpability standard. This variability is due to the sweeping changes made to state tort law by the Supreme Court as you read about supra under the Introduction to Defamation’s Elements at Common Law.
Be patient as you learn the common law rules and be ready to layer on further complexity when learning about the constitutional limits of state defamation law. The interplay between state and constitutional rules provides a valuable introduction to dynamics you will explore in depth when you take a class in constitutional law. It will also represent a significant departure from the kind of cases and the reasoning with which you have become familiar in tort law thus far. The main takeaways at this point are that common law imposed arcane, technical and rigid pleading requirements on plaintiffs and those have relaxed to some extent. However, it afforded plaintiffs significant leeway in not requiring that they prove falsity or fault and in permitting them to presume rather than prove damages in a much broader category of cases than now available.
In sum, historically the law protected reputational interests more liberally and safeguarded speech intents correspondingly less. That balance has changed in the modern era.
Categories of Defamation: Diverse Forms of Libel and Slander
Libel Per Se versus Liber Per Quod. In Fuller, the court refers to a statement’s being “actionable per quod.” If an action is not “per se defamatory,” it may be treated as “per quod defamatory,” meaning that the communications do not clearly indicate how or why they are defamatory. The general rule is that per quod defamatory communications require proof, perhaps via extrinsic evidence, of the defamatory nature of the communications; per se defamatory communications are thought to speak for themselves.
Libel versus Slander (and Slander Per Se). There are two main types of defamation: libel and slander. Historically, libel referred to defamation that occurred in print and slander referred to oral communications (of which slander per se represents a special subset). In everyday conversation, many people use the terms “libel law” and “defamation law” interchangeably but lawyers do need to know that libel, technically, is just one kind of defamation.
Libel was historically a stronger tort and allowed plaintiffs to presume damages. The rationales for this distinction were somewhat haphazard yet the distinction has proven persistent nonetheless. (“As a result of historical accident, which, though not sensibly defensible today, is so well settled as to be beyond our ability to uproot it [c], there is a schism between the law governing slander and the law governing libel (see Restatement, Torts 2d, § 568, comment b).” Matherson v. Marchello, 100 A.D.2d 233, 235 (1984)). One oft-cited rationale for distinguishing libel from slander is that defamatory statements made in print may be more robust in their duration and reach, and thus likelier than oral communications to cause enduring harm. Some commenters have categorized libel as defamation that is “visual” (whether communications are made in printed text or images). However, libel has been broadened beyond the merely visual to include dissemination by audio broadcasting and now includes also audiovisual broadcasts. It is a matter of state law whether statements and images disseminated over the internet (or via Twitter and other such platforms) constitutes libel or slander, but the majority trend is to treat such communications as libel.
Slander, by contrast, required proof of special damages (pecuniary loss), in addition to proving that someone had said something defamatory about the plaintiff, which could be difficult given that oral communications are often not recorded and may not have been made in front of the plaintiff. Various states have adopted different formulations of the elements though there is considerable overlap. In New York, which provides a representative example, the elements of slander are:
(1) a defamatory statement of fact
(2) that is false
(3) published to a third party
(4) of and concerning the plaintiff
(5) made with the applicable level of fault on the speaker’s part
(6) either causing special damages or constituting slander per se
(7) and not privileged.
Germain v. M & T Bank Corp., 111 F. Supp.3d 506, 534 (S.D.N.Y.2015). These elements are sometimes collapsed into four inquiries: a “false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.” Salvatore v. Kumar, 45 A.D.3d 560, 563 (2007)
Either way, both recitations of elements make clear that the culpability level can vary, as does the need to prove special harm. This is because a subset of slanderous communications, however, were categorized as “per se”—following the reasoning provided supra regarding “per se” versus “per quod” communications discussed above.
Slander Per Se. Many jurisdictions follow the common law rule of treating “slander per se” as though it were libel, meaning that damages may be presumed rather than needing to be proven. However, in the modern era, the availability of presumed damages has been restricted, as you will learn later in this module. Slander per se communications fall into one of four categories at common law.
Restatement Second of Torts § 570 (1977) Liability Without Proof of Special Harm—Slander
One who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other
(a) a criminal offense, as stated in § 571, or
(b) a loathsome disease, as stated in § 572, or
(c) matter incompatible with his business, trade, profession, or office, as stated in § 573, or
(d) serious sexual misconduct, as stated in § 574.
To qualify as slander per se, communications falsely suggesting someone was involved with or had committed a “criminal offense” required the imputation of a serious or “major” crime. Hinting at minor criminality did not suffice to convert an allegedly defamatory oral statement into slander per se. Similarly, a loathsome disease had to be bad enough that it was likely to cause social exclusion or to make pecuniary loss foreseeable. Modern examples include herpes and AIDS (and one might imagine Monkeypox could be added to the list). The imputation of professional misconduct is often glossed as incompetence, negligence or misdealing. “Serious sexual misconduct” was very much a product of its times. In the earliest cases, it was used to permit recovery without proof of special harm in cases in which a woman was called unchaste, or for false allegations of adultery or homosexuality.
These default categorizations presume that a person might find it so intolerable to be falsely characterized as something other than straight that it is legally actionable without any proof of financial losses caused by the alleged defamation. Let’s be clear: for purposes of defamation law, courts treated being gay as functionally equivalent to being infectious, criminal or incompetent. This equivalence provides an example of how tort law can signal its values by protecting one set of interests at the expense of another set; tort law’s slander per se categories effectively endorse a form of deep homophobia in their solicitude for reputational interests. Some earlier courts had recognized the harmful message conveyed by judicial approbation of a doctrine that categorized homosexuality as functionally equivalent to offensive disease, major criminality and professional wrongdoing or incompetence. Yet unfortunately sometimes changes in the common law proceed slowly and may produce a jarring misalignment with cultural practice or values. Thus the slander (and defamation) per se rules in many jurisdictions still treat homosexuality under the older, homophobic approach. As the next case reveals, it was only in 2020 that socially progressive New York state formally stopped categorizing misstatements regarding sexual orientation as slander per se.
(192 A.D.3d 44)
*46 In this action, inter alia, to recover damages for defamation per se, the plaintiff alleges that he was defamed by the pastor of the defendant church when the pastor told members of the congregation that the plaintiff was a homosexual who viewed gay pornography on the church’s computer. [***] [At issue is] whether the false imputation that a person is a homosexual constitutes defamation per se. For the reasons that follow, we answer both of these questions in the negative.
The plaintiff is a former elder in the Gethsemane SDA Church (hereinafter the church). The defendant Pastor Jean Renald Maurice is the pastor in charge of the church, which allegedly is operated by the defendant The Greater New York Corporation of Seventh Day Adventist. In September 2017, the plaintiff commenced this action against the defendants, inter alia, to recover damages for defamation per se. As set forth in the complaint, Pastor Maurice stated before approximately 300 members of the church that “the [p]laintiff was a homosexual,” and that “the [p]laintiff disrespected the church by viewing gay pornography on the church’s computer.” The complaint alleged that these statements constituted defamation per se, inasmuch as they falsely portrayed the plaintiff “as a homosexual man with no self-control who uses the church’s computer to view gay porn.” The complaint further alleged that Pastor Maurice used these statements to influence the church to vote to relieve the plaintiff of his responsibilities at the church and to terminate his membership.
*47 The [***] defendants argued that the complaint failed to state a cause of action to recover damages for defamation per se, since falsely ascribing homosexuality to a person no longer constituted defamation per se, and the plaintiff had failed to allege that he sustained any special damages. [***] [T]he court determined that the plaintiff had sufficiently stated a claim to recover damages for defamation per se. The defendants appeal.
[T]he Supreme Court erred in determining that the complaint sufficiently stated a cause of action to recover damages for defamation per se. [***] Here, the plaintiff, citing Matherson v. Marchello, 100 A.D.2d 233, and Klepetko v. Reisman, 41 A.D.3d 551, contends that the Second Department has previously recognized that the false imputation of homosexuality constitutes defamation per se.
In 1984, this Court decided Matherson v. Marchello, 100 A.D.2d 233. In Matherson, the plaintiffs, husband and wife, commenced an action to recover damages for defamation based upon certain statements made during a radio interview by the defendants, members of a singing group. The plaintiffs alleged, in pertinent part, that the statement directed at the plaintiff husband—“I think it was when somebody started messing around with his boyfriend that he really freaked out”— constituted an imputation of homosexuality which should be recognized as defamatory (id. at 241). This Court noted that “[i]t cannot be said that social opprobrium of homosexuality does not remain with us today,” and that “[r]ightly or wrongly, many individuals still view homosexuality as immoral” (id.). Additionally, we observed that “[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service [had] recently been reaffirmed” (id. [citations omitted]). Thus, we concluded that “the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored,” and “that the imputation of homosexuality is reasonably susceptible of a defamatory connotation … and is actionable without proof of special damages” (id. at 242 [internal quotation marks and citation omitted]).
In Klepetko v. Reisman, 41 A.D.3d 551, which was decided in 2007, the plaintiff commenced an action to recover damages for allegedly defamatory statements made in a column in a daily newspaper. The plaintiff challenged, among other remarks, the statement that he “lived with another middle-aged man,” which the plaintiff alleged was “an insinuation that he is a homosexual” (id. at 551). This Court, quoting Matherson, stated that “[t]he false imputation of homosexuality is ‘reasonably susceptible of a defamatory connotation’ ” (id. at 552, quoting Matherson v. Marchello, 100 A.D.2d at 242). Ultimately, however, this Court held that “the statement that *52 the plaintiff lived together with another middle-aged man [did] not readily connote a sexual relationship, particularly when viewed in the context of a column concerning irresponsible dog owners” (Klepetko v. Reisman, 41 A.D.3d at 552).
As noted by the Third Department, the Appellate Division in all four Departments had recognized statements falsely imputing homosexuality as a category of defamation per se (seeYonaty v. Mincolla, 97 A.D.3d 141, 144, citing Klepetko v. Reisman, 41 A.D.3d at 552, [c], [c], Matherson v. Marchello, 100 A.D.2d at 241–242, and [c].
In Yonaty, which was decided in 2012, the Third Department held that these Appellate Division decisions were “inconsistent with current public policy and should no longer be followed” (Yonaty v. Mincolla, 97 A.D.3d at 144). The court determined that “the prior cases categorizing statements that falsely impute homosexuality as defamatory per se [were] based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual,” and that “such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a ‘serious crime’—one of the four established per se categories.” The Third Department rejected this Court’s holding in Matherson. The court reasoned that “[i]n light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease” (id. at 146, 945 N.Y.S.2d 774).
We agree with our colleagues in the Third Department that the earlier cases, including this Court’s decision in Matherson, which held that the false imputation of homosexuality constitutes a category of defamation per se, are inconsistent with current public policy. This profound and notable transformation of cultural attitudes and governmental protective laws impacts our own consideration of stare decisis. Indeed, as *53 recognized by the United States District Court for the Southern District of New York in 2009, the decades since Matherson “have seen a veritable sea change in social attitudes about homosexuality,” including the decision of the United States Supreme Court in 2003, in which the Court invalidated laws criminalizing intimate homosexual conduct as violative of the Fourteenth Amendment’s Due Process Clause (Stern v. Cosby, 645 F. Supp. 2d 258, 273–274 [S.D. N.Y.], citing Lawrence v. Texas, 539 U.S. 558, 578). More recently, in 2015, the United States Supreme Court recognized the fundamental right of same-sex couples to marry in all states (seeObergefell v. Hodges, 576 U.S. 644, 675).
Notably, in New York, “the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing” (Yonaty v. Mincolla, 97 A.D.3d at 145, citing Executive Law § 296). Moreover, marriage between persons of the same sex was permitted in New York years before the United States Supreme Court’s decision in Obergefell (see Matter of Kelly S. v. Farah M., 139 A.D.3d 90, 97; Yonaty v. Mincolla, 97 A.D.3d at 145). The New York Legislature enacted the Marriage Equality Act in June 2011 (L 2011, ch 95 [eff July 24, 2011]).
Based on the foregoing, we conclude that the false imputation of homosexuality does not constitute defamation per se. Matherson’s holding to the contrary should no longer be followed. Furthermore, the additional allegation that the plaintiff viewed gay pornography on the church’s computer likewise does not fit within any of the categories of defamation per se. Therefore, the plaintiff was required to allege special damages. He failed to do so, and, consequently, his cause of action alleging defamation per se must be dismissed (seeYonaty v. Mincolla, 97 A.D.3d at 146).
Note 1. The category of “slander per se” constituted a clear mechanism to assist plaintiffs’ recovery by allowing them to forgo proving that the defamatory statement had harmed them financially. It also reflected the legal system’s judgment about the sorts of values, attributes, identity markers and lifestyle choices that were intolerable as comments about an individual. The court refers to Yonaty v. Mincolla, a 2011 New York case in which the court upheld the use of homosexuality as one of the defamation per se categories. Yonaty was decided only a few days before the state adopted legislation protecting same-sex marriage, suggesting the misalignment of the judicial and legislative branches of New York at the time. In 2012, Yonaty was overturned on appeal but the underlying categorization of homosexuality as per se defamatory remained good law in the state until the ruling in Laguerre. Does it surprise you that despite the legislative legalization of same-sex marriage in 2011, New York state had not yet abandoned this outdated categorization almost a full decade later? What are the competing interests that courts were likely balancing?
In California, the law was not much further ahead of New York in doing away with outdated defamation rules that conveyed these homophobic implications. In 2017, one court did expressly rule that being incorrectly described as transgender was not grounds for defamation per se. Richard Simmons, a former fitness star, had sued a tabloid and other defendants for claiming that his retreat from the media had been due to his plan to undergo transition. The court stated that “being misidentified as transgender is not libelous per se because such an identification does not expose ‘any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.’ While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them.” Simmons v. American Media, Inc., No. BC660633, 2017 WL 5325381, at *7 (Cal.Super. Sep. 01, 2017). The ruling was heralded as a victory for transgender law; even though the court acknowledged existing biases, it refused to validate them by integrating them into the law of defamation.
Note 2.Judge versus Jury. Whether a communication is susceptible to defamatory interpretation is a question of law to be determined by the judge. See e.g.Bongino v. Daily Beast Co., LLC, 477 F. Supp. 3d 1310, 1317 (S.D. Fla. 2020); Smith v. Maldonado, 72 Cal. App. 4th 637, 647, 85 Cal. Rptr. 2d 397, 403 (1999), as modified (June 23, 1999). However, the jury is tasked with determining whether the potentially defamatory communication was indeed understood in the way the plaintiff alleges. The defamatory nature of the communication often involves questions of fact such as involve context-sensitive assessment of where and when the communications were perceived and by whom. In addition, the allegedly defamatory communication should not be read in isolation but must be considered holistically, as it was conveyed along with other communications, acts or gestures. Do you think judges or juries are better suited for the work of determining whether a communication is defamatory? Who would you want to determine the claim if you were a plaintiff? Would it differ if you were the defendant?
Note 3.Practical Impact of Per Se Categorizations. In some jurisdictions, the various forms of “per se” actions that permit a presumption of damages are dealt with as “defamation per se.” For example, in Sleem v. Yale University, the plaintiff, Dimitri Sleem, was a Yale alumnus who sued the university for defamation (and NIED) over a publication made in relation to his upcoming fifteenth-year reunion. The Alumni Office had sent most alumni a questionnaire about their collegiate experiences but they sent Sleem’s questionnaire to the address he had had on file during college (which was in Kingston, Jamaica). The Alumni Office possessed his updated address, which was in North Carolina, as well as his phone number, so it’s unclear why they sent the questionnaire to the wrong address. In any event, he never received his invitation and someone else unidentified filled it out pretending to be Sleem. The entry was never corrected or edited, and included the following lines: “I have come to terms with my homosexuality and the reality of AIDS in my life. I am at peace.” Yale had the questionnaire for five months before copies of the questionnaires were made into books and sent to other members of the Class of 1975. No attempt was made to verify the statements made about Plaintiff in the personal statement bearing his name even though there were people and resources that could have helped confirm the statements. In addition, two staff members spent a total of 146 hours proofreading the “Yale 1975—Fifteen Years Out” reunion book. They confirmed by deposition that they were aware that AIDS is an infectious disease and that no other entry in the “Yale 1975—Fifteen Years Out” book alleged that the individual has a sexually transmitted disease. Sleem v. Yale Univ., 843 F. Supp. 57, 59, 59-60 (M.D.N.C. 1993) Sleem had no way of proving special damages, so his case would have failed had the statements not qualified as some form of defamation per se. (A quirk of North Carolina libel law permitted the case to survive a motion for summary judgment without deciding the issue of defamation per se, and the parties appear to have settled. The court’s criticism of Yale’s conduct with respect to the defamatory publication telegraphed likely success on at least some issues on the merits of Sleem’s case.)
Do you think it is likely that an alumni publication will cause pecuniary losses? If it seems unlikely to do so, should there be another way of recognizing the harms someone like Sleem would suffer as a result of Yale’s conduct? Is pecuniary loss the right threshold for defamation claims, in other words? Do you think the context of the publication ought to make special damages unnecessary irrespective of the nature of the defamatory content? Does permitting a presumption of damages with some form of defamation per se get the balance right between protecting reputational interests and also not overly burdening speech?
Note 4. To what extent does liability for defamation require that a claim be reasonably credible? If a student posted on social media that their law professor was not just incompetent but the worst professor in the world, the statement would be inactionable because it can be discounted as pure opinion. (You’ll learn more about the status of opinions when covering defenses, infra.) Consider the following examples.
Student One posts on social media that their law professor was incompetent. Without more, this is merely an opinion and lacks any verifiable (whether true or false) statements of fact.
Student Two posts the same but also provides details explaining their assessment of the professor’s incompetence and wondering whether this incompetence could cause law students to fail their future bar exams. This communication remains primarily opinion even if it also contains a professionally negative implication that the alleged incompetence could translate into concrete and negative outcomes (students failing the bar).
Student Three posts that her law professor was incompetent and that her entire section felt they never learned the topic well enough to pass the bar. Moreover, she shares a graph of recent bar exam results showing a sharp decrease in bar passage, along with the caption, “See what I mean??” Now there is a statement of fact: fewer students passed the bar (fact) and a communication (“See what I mean??””) which intentionally attributes the decreased passage to the professor’s alleged incompetence. While the incompetence is still the student’s opinion and not actionable by itself, attaching it to verifiable facts that prove to be false will make the communication actionable. Of course if the statements are verifiably true, the defamation action will fail. But the point is the extent to which a statement is a credible statement of fact versus purely an expression of opinion or even a fictitious or fantastic invention, as in the final example.
Student Four posted that their law professor was an evil villain in charge of a giant weather machine which was responsible for causing bad weather during every exam week. Here the claim is not defamatory because there is no reasonable way to believe it as a potential statement of fact that happens to be false. Mere fantasy is not usually enough to cause a claim to be cognizably defamatory. Often tabloids benefit from this presumption, falling back on the notion that nobody believes the stories they report. Consider as you read the next case where the line falls between fact and opinion as well as fact and fiction, and tort law’s role in assessing that.
(786 F. Supp. 791)
The plaintiff, Peoples Bank and Trust Company of Mountain Home, conservator of the estate of Nellie Mitchell, an aged person, by amended complaint filed September 24, 1991, brought defamation [***] and intentional infliction of emotional distress claims against the defendant, Globe International, Inc. d/b/a “Sun”. Mrs. Mitchell is a 96–year–old resident of Mountain Home, Arkansas. She has operated a newsstand on the town square since 1963. Prior to that she delivered newspapers on a paper route, and according to the evidence, still makes deliveries to certain “downtown” business establishments and select customers.
It appears that Nellie, as she is known to almost everyone in this small Ozark Mountain town, is a town “landmark” or “treasure”. She has cared for herself and raised a family as a single parent for all of these years on what must have been the meager earnings of a “paper girl.” According to the evidence, the newspaper stand which she operates was once a short, dead end alley between two commercial buildings on the town square. She apparently gained permission to put a roof over the alley and this became her newsstand and sole source of livelihood, apparently providing life’s necessities for her and her family to this day. When one of the lawyers asked Nellie during the course of her testimony *793 whether she lived with her adult daughter, Betty, she quickly replied, “No, Betty lives with me.”
The basis of the plaintiff’s claims is an article and picture that appeared in the October 2, 1990, edition of the Sun. The October 2 edition published a photograph of the plaintiff in conjunction with a story entitled:
SPECIAL DELIVERY
World’s oldest newspaper carrier, 101, quits because she’s pregnant!
I guess walking all those miles kept me young
The “story” purports to be about a “papergal Audrey Wiles” in Stirling, Australia, who had been delivering papers for 94 years. Readers are told that Ms. Wiles became pregnant by “Will” a “reclusive millionaire” she met on her newspaper route. “I used to put Will’s paper in the door when it rained, and one thing just kind of led to another.”
In words that could certainly have described Nellie Mitchell, the article, which was in the form and style of a factual newspaper account, said:
[S]he’s become like a city landmark because nearly everyone at one time or another has seen her trudging down the road with a large stack of papers under her arm.
A photograph of Nellie, apparently “trudging down the road with a large stack of papers under her arm” is used in conjunction with the story. The picture used in the October 2 edition of the Sun had been used by the defendant in a reasonably factual and accurate article about Mrs. Mitchell published in another of the defendant’s publications, the Examiner, in 1980. [***]
Testimony at trial indicated that most of the defendant’s articles are created “TOH” or “top of the head”, in the words of John Vadar, editor of the Sun. That is, the authors, none of whom use their real name, are given a headline and a picture and then “make up” the accompanying stories. In fact, according to the evidence, the editor and perhaps others “make up” a series of headlines for stories to appear in each issue, and they are placed on a table. The “reporters” or perhaps, according to defendant’s contentions at the trial, their “authors of fiction” select from this list the stories they wish to write.[5]
*795 John Vadar, indicated that, when the picture of Mrs. Mitchell was selected, it was assumed she was dead. The Sun’s stated policy was to illustrate its articles with pictures of individuals from other countries who would not be damaged by the publication being circulated in the United States. The use of Mrs. Mitchell’s picture was merely a “mistake.”
Although defendant’s contention during the trial was that Nellie Mitchell could not have been defamed because the publication contained only fiction readily recognized as such by reasonable readers, some of its “authors” testified that some of the articles were factual or at least based on fact, and it became obvious that even they could not tell the difference. Some of defendant’s own witnesses could not agree which articles were purely fantasy and which were true or at least had some factual basis. For example, at trial Mr. Silver testified that an article about a farmer becoming a millionaire by making whips for wife beaters was a true story while Mr. Levy, also a witness for the defendant, stated the story was false. [***]
The jury heard the evidence and studied the exhibits which included the very issue of the Sun in which Nellie’s heretofore unsullied photograph, and thus her very “being”, were literally buried in what reasonable jurors might find is muck, mire and slime spewed forth by defendant, some of which is described as follows:
A front page containing Nellie’s picture surrounded by headlines promising stories about:
HUSBAND & WIFE LIVE TOGETHER WITHOUT SPEAKING FOR 56 YEARS
WOMAN CLAIMS: I’M MOM OF JIM BAKKER’S LOVE CHILD
BROTHER & SISTER MARRIAGE SHOCKER—
After 30 yrs of forbidden love, they would rather go to jail than divorce
PARALYZED WOMAN WALKS AFTER BEING HIT BY LIGHTNING
WORLD’S MOST HONEST COP ARRESTS OWN MOTHER—We later learn it is for picking flowers in the park.
*796 And inside pages again with Nellie’s photograph buried in what appear to be news stories about:
HIGHWAY TO HELL—Wicked witch casts her deadly curse on intersection mangling 21—accompanied by graphic photographs of mangled automobiles sitting at an intersection where the “witch” had caused a serious accident.
DRUG DEALERS’ DEVIL DOGS REPLACE PIT BULLS
BOY, 12, GETS OWN LAWYER TO DIVORCE DAD IN CUSTODY FIGHT
Revealed for first time:CHURCHILL’S CLOSE ENCOUNTERS WITH UFO ALIENS—the articles discloses that, although Winston Churchill implored them to do so, they declined to help the world defeat Hitler.
Mothers describe night of terror during20–MILE RIDE WITH A HEADLESS GHOST
‘DEAD MAN’ REVIVES AS DOCS TAKE ORGANS
ROAD KILL CANNIBAL—He eats accident victims—a news story, accompanied by a photograph of a black man whom, the story says, had applied to the government of the “African country of Swaziland” to be allowed to pick up from along roadsides and eat bodies of persons killed on the roadway. He describes the taste of human flesh, saying that he prefers adult meat because it is “firm, succulent and salty and doesn’t require seasonings”, while, on the other hand, “children’s meat is revolting because it tastes sweet and sticks to the teeth.”
FARMER BECOMES A MILLIONAIRE MAKING WHIPS FOR WIFE BEATERS—the story which at least one of defendant’s “authors” thought to be true.
HELL SCHOOLWhere students are chained to learn and whipped if they don’t read properly
STUDENTS KILL TEACHER WITH VOODOO DOLL
FARMER KILLS SELF BY BREATHING COW GAS— He dies with his beloved animals
It may be, as defendant in essence argues, that Mrs. Mitchell does not show a great deal of obvious injury, but a reasonable juror might conclude, after hearing the evidence and viewing the Sun issue in question, that Nellie Mitchell’s experience could be likened to that of a person who had been dragged slowly through a pile of untreated sewage. After that person had showered and a few weeks have passed, there would be little remaining visible evidence of the ordeal which the person had endured and the resulting damages incurred, but few would doubt that substantial damage had been inflicted by the one doing the dragging. This court is certainly in no better position to determine what that is “worth” than 8 [fn] jurors picked from the citizenry of the Harrison Division of the Western District of Arkansas to hear and decide this case. The court concludes that reasonable jurors could find that it is “worth” a great deal to suddenly find your likeness buried in the slime of which this publication was made, directly in front of an article describing the relative tastiness of adult human flesh compared to that of children.
Defendant undoubtedly has the Constitutional right[6] to publish “newspaper stories,” “literature,” “fiction,” or whatever the articles described above and others in this issue are, but when it does and damages others by doing so, our system literally demands that the injured person be adequately compensated in an attempt to make them whole, or as whole as money can *797 make them. A properly picked jury made that determination after hearing ample evidence to create a jury question, and our system does not permit this judge to substitute his judgment for that of the jury.
[***] Plaintiff argues that the defendant’s method of publishing—not distinguishing between truth or fiction, off the top of their head, out of whole cloth—demonstrates at the very least reckless disregard. In fact, the defendant’s method of publishing was one of the major considerations resulting in the earlier denial of defendant’s summary judgment motion. See Mitchell v. Globe International Publishing, Inc., 773 F. Supp. 1235, 1240 (W.D.Ark.1991). In that opinion we stated:
The court cannot say as a matter of law that the article is incapable of being interpreted as portraying actual events or facts regarding the plaintiff. The “facts” conveyed are not so inherently impossible or fantastic that they could not be understood to convey actual facts. Nor can we say that no person could take them seriously. Moreover, even if the headline and certain facts contained in the article could not be reasonably believed other facts e.g., the implication of sexual promiscuity, could reasonably be believed.
In making this determination we ‘consider the surrounding circumstances in which the statements were made, the medium by which they were published and the audience for which they were intended.’ Dworkin [v. Hustler Magazine, Inc.], 668 F. Supp. [1408] at 1416. The articles are written in a purportedly *799 factual manner. No distinction is made between those articles that are wholly fictional and the articles that are intended to be factual. Fictional articles are not denoted as such. The Sun apparently intends for the readers to determine which articles are fact and which are fiction or what percentage of a given article is fact or fiction.
The layout, captions, and style of writing contained in the article is similar in format to news articles. There are no cautionary statements appearing in this article or to the court’s knowledge in the entire edition of the Sun. Id.
After hearing the testimony in this case, the court believes the jury could have, and apparently did, find that the defendant intended their readers to construe the article in question as conveying actual facts or events concerning Mrs. Mitchell or at the very least that the defendant recklessly failed to anticipate that the article would be so construed. [***] The defendant could very easily indicate to its readers in some fashion that the material conveyed in the Sun is fiction if it really intended that its readers recognize that the articles are false and made up fantasy. The court believes that it could be inferred from the manner of publication that the defendant intends its readers to believe its articles are conveying actual facts or at the very least leave the reader in doubt as to what portions are factual and what portions are pure fantasy.[7][***]
Defendant argues there is no evidence to support the [jury’s] award of \$650,000 in compensatory damages. We are informed that this is the highest award in Boone county history and it is also the highest jury award for compensatory damages in a defamation, invasion of privacy, or outrage case in the history of the State of Arkansas. Defendant provides the court with a comparison of awards made in other cases. (Defendant’s brief at 4). Without intending to be flippant, the court’s response is, “so what?” As far as those same records show, there has never before been a case like this in Boone County or the State of Arkansas. [***]
In general awards for mental anguish or pain and suffering are left to the discretion of the jury since these are highly subjective elements of damage and are extremely hard to quantify. *802 [***] The jury in this case was required to quantify damages for mental distress. We believe there is no basis on which to determine what portion, if any, of the damages awarded should be remitted. To do so would merely be a substitution of this judge’s judgment for that of the jury. [***] [M]ental anguish is an element of damage that is not easily susceptible to measurement in economic terms. [***]
Defendant also argues that the award of \$850,000 punitive damages reflects passion and prejudice. At trial after the jury returned its verdict on the liability and compensatory damage aspects of the case, it was given a separate instruction listing various considerations that could be utilized in determining the amount of punitive damages to be awarded. [***] In this case the jury found that the defendant committed intentional torts, one of them requiring a finding of actual malice. Additionally, the ratio of punitive to compensatory damages does not suggest excessiveness.
Even if this court would, if it had been the trier of fact, have awarded less damages, that is not sufficient for the court to substitute its judgment for that of the jury. The court would only be speculating as to what is “right” if it were to reduce the verdicts. The court cannot say that the verdicts “shock the conscience of the court.” [***]
The court believes and finds that there was ample evidence to support the jury’s verdict in this case. Certainly, reasonable minds may differ, and the verdict was not against the “clear weight”, “overwhelming weight”, or “great weight” of the evidence.
Note 1. If authors of various communications are unclear on the truth or fiction of their writing, should that fact be used against them to create a presumption of falsity? Why or why not? What facts struck you as most important to the legal determination in this fact pattern, and why?
Note 2. Could Nellie have proven special damages in this case? Were you convinced by the court’s analysis of her damages? Why or why not?
Note 3. How significant do you think it was that the victim of the defamation in this case was a vulnerable elderly woman, a beloved community figure now subject to a legal conservatorship? Would this have come out the same way had it been a case about an unpopular or little-known community recluse? How about if the plaintiff had been a muscular young man?
Note 4. What was the impact of the jury’s role in this case, do you think?
Note 5.Viewpoints and Values. In its insistence on the plaintiff’s right to their reputation—even among a small or countercultural group—defamation seeks to avoid playing favorites. In that sense, it reflects some reasoning found in First Amendment jurisprudence, which requires viewpoint neutrality. Yet defamation law is hardly neutral. All throughout a defamation action, if a plaintiff claims that a communication has injured their reputation, a court must determine whether that communication is capable of carrying defamatory meaning and whether it was in fact understood in the way the plaintiff alleges. Hence questions of meaning and intention frequently present themselves, and value judgments about whom the law protects and against what are omnipresent. In what ways do you imagine this might affect the kinds of claims that succeed and the kinds of parties willing to (or able to) bring defamation actions?
Note 6.Audience for the Defamation.
Recall that the tort of defamation protects a person’s reputation. The Restatement (Second) of Torts § 559 defines a communication as defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Key to this definition is that the interest the tort protects would be meaningless if it protected only reputational interests with a community that did not matter to the plaintiff.
It is well-settled that defamation does not protect only the kind of reputation that everyone must agree is socially valuable; put another way, defamation does not only protect reputational interests as those are conceived of in the minds of “right-thinking people.” Grant v. Reader’s Digest Ass’n, 151 F.2d 733, 734-735 (2d Cir. 1945). Judge Learned Hand’s opinion in Grant states: “A man may value his reputation even among those who do not embrace the prevailing moral standards; and it would seem that the jury should be allowed to appraise how far he should be indemnified for the disesteem of such persons … We do not believe, therefore, that we need say whether ‘right-thinking’ people would harbor similar feelings… It is enough if there be some… who would feel so, even though they would be ‘wrong-thinking’ people if they did.”
There is an outer limit to this flexibility, however. One court describes the problem aptly, framing it in terms of the cultural diversity in its jurisdiction:
Whether an utterance is defamatory depends on the values of the listener. Even in an ethnically homogeneous culture these values will not be uniform, and it is not always easy to predict what will be taken as defamatory. [fn] The confusion is compounded in Alaska, because among the several ethnic groups which reside here there may be divergent views on what is, and what is not, disreputable. Gottschalk v. State, 575 P.2d 289, 293 (Alaska 1978)
In a footnote, the court expands on the challenges of determining defamatory meaning:
Establishing a standard against which potentially defamatory statements may be measured generates considerable difficulty in a democratic society which prides itself on pluralism. [***] American courts generally recognize that a person may suffer real damage by statements which tend to tarnish his reputation within a particular group or class even though the measuring group may be a small minority. Examples collected by Prosser include publication of a person’s picture in connection with a whiskey advertisement, a statement that a person is about to be divorced, and the insinuation that a white man is a black man, that a businessman is a price cutter, or a Kosher meat dealer sells bacon. See, W. Prosser, Handbook on the Law of Torts s 111, at 743-44 (4th Ed. 1971). Taken to an extreme, this policy finds its limit in cases where the minority group is either insignificantly small or its values clearly anti-social. An example would be a thief attempting to recover damages against a person who charged him with being an informer.
A parallel problem is that what is defamatory changes over time. One commentator illustrates this as follows: An interesting example . . . is the line of British cases in which the alleged defamation consisted in calling a man a “Papist.” Such a charge was held not actionable when James I was on the throne, but a contrary result was reached during the rule of Charles II, and it was also libelous during the period between the abdication of James II and the accession of William and Mary, when to call a man a Papist would subject him to danger. (citations omitted) 1 Harper & James, The Law of Torts s 5.1, at 353 (1956).
A more contemporary example might be labeling someone a “communist” or a “marxist”, which within the past 50 years has been considered first defamatory, then non-defamatory, and next defamatory again, depending largely on United States foreign policy changes. W. Prosser, supra at 744 nn. 3, 4. Id.
How should tort law manage the historical fluctuation regarding various allegedly defamatory terms? What is the relationship between proving defamatory meaning and being able to prove damages given the dynamic nature of language and identity?
The next case provides historical perspective on the way that social values infuse the law of defamation.
(15 Ohio 319)
*319 This is a writ of error, directed to the court of common pleas of Jefferson county.
The action below was case for slander. The words charged in the declaration were, that Olive Stewart, the wife of said James Stewart, had said of the plaintiff below that she was a hermaphrodite. To the declaration the defendants interposed *320 a general demurrer, and the court of common pleas sustained the demurrer, and gave judgment for the defendants. [***]
It is contended that the words charged in the declaration are not actionable. The court of common pleas took this view, and sustained the demurrer. It is said that the charge imports neither crime, guilt, nor moral turpitude. It is a well-established principle of law, that words which impute a charge necessarily tending to injure a man, or his trade, or occupation, or profession, or to exclude him from society, are actionable in themselves.
A more gross or indelicate slander could not well have been uttered against a female-especially a young girl-or one more calculated to wound her feelings and do her mischief. It unsexes her; makes her a thing to be stared at; converts her into a monster, whose very existence is shocking to nature; and would be certain, among the young or thoughtless, to bring her into ridicule and contempt; and excludes her from social intercourse and all hopes of marriage. It is infinitely worse than a charge of incontinence, as to its injurious results, to the feelings and prospects of the female.
To hold that there was no remedy for a case of this sort, would be an utter disgrace to the law and ourselves. It is said that, if the plaintiff would inquire around, and if she could ascertain that she had been especially injured to a certain amount, in dollars and cents, the law would assist her to recover it; in other words, that it is a case where the action must be sustained upon the ground of special damage. It is said the common law has not gone further; that the English courts have not gone further. It is sufficient to reply, that this court will not permit so gross a wrong to pass without a remedy. We shall apply the spirit of the law to embrace every case property falling within it.
It is precisely that sort of charge calculated to do infinite mischief, and of that vague and indefinite kind which can neither be met nor answered.
The case falls clearly within the oldest and soundest principles of the law, when properly understood and rightly applied. It is admitted that, if words are spoken to injure a man, to the value of a few dollars and cents, in his trade, it is actionable; but contended that, to speak words of a young girl, which necessarily inflict the deepest wound upon her feelings; break up her hopes, and exclude her from society, is not actionable. Such a conclusion cannot be tolerated. This court, in protecting reputation—a remedy for an injury to which is guaranteed by the constitution—will be careful that the judicial decisions of the land shall reflect that same delicate and profound respect for female character and feeling, which constitutes the proudest and dearest characteristic of our people. We hold it a sound principle of law, that words spoken of a female, which have a tendency to wound her feelings, bring her into contempt, and prevent her from occupying such position in society as is her right, as a woman, are actionable in themselves.
Judgment reversed, and remanded for further proceedings.
Note 1. When the court refers to words “actionable in themselves,” it is referring to slander per se. What is the rule here, in your own words? How far does it appear to go (descriptively)? You can certainly query how far it should go normatively but the descriptive question offers a valuable opportunity to formulate a rule and test what might allow recovery or fail to do so under the given rule. You can also formulate a pair of rules or a rule and sub-rule; the important thing is to practice stating the reasoning in terms of a principle that a subsequent court could apply.
Note 2. The court appears to ground its holding in the notion that the injury to a man’s trade ought not to be more actionable than the injury to a woman’s feelings: “if words are spoken to injure a man, to the value of a few dollars and cents, in his trade, it is actionable; but contended that, to speak words of a young girl, which necessarily inflict the deepest wound upon her feelings; break up her hopes, and exclude her from society, is not actionable. Such a conclusion cannot be tolerated.” Given what you know about the reluctance of courts to recognize claims for emotional distress, especially in the late 19th century when this case was decided, how might you explain what is different about this case? Do note that the wounded feelings themselves are not the cognizable injury; the alleged loss of reputation is the injury but it causes the emotional suffering. Always recall that the primary injury to seek and measure is reputational, not emotional. The damages may take that suffering into account, but they are not proof that the defamation occurred.
Note 3. The court’s rhetoric and substance both display a commitment to a particular, stable version of gender (and sexual identity) that the allegedly defamatory communications threatens. If the plaintiff is bothered by the communication, and the court permits recovery, should it be problematic if this is the way the court reasons its way to this outcome? Does your answer depend on whether the special damage requirement is usually ignored or treated as a genuine hurdle?
Scholars have noted that the rigid construction of gender and sexual identity in judicial opinions can create harm apart from the merits of the case, as well as in the substantive issues before the court. One writes:
[I]n tort litigation, courts do not take a neutral approach toward considering and weighing the credibility of competing narratives [about gender and sexual identity]. Instead, courts privilege narratives which treat sexual identity as if it were naturally binary, even as the cases in front of them suggest the opposite. In this respect, courts treat sexual identity quite differently than gender identity. While gender identity is understood as a cultural phenomenon, which may have elements of artificial construction, … when it comes to sexual identity,” courts fall back on binary notions and cast those as the only “natural” possibilities. … [P]rivileging …one narrative of sexual identity above others in tort litigation has political implications that go well beyond the denial of the benefits of tort litigation to particular classes of people. The most important of these political effects is the impact of the litigation on our political consciousness and our perceptions of what is possible. When legal narratives, such as those produced in tort litigation, echo those that are expressed outside the courtroom, the law provides political and cultural legitimacy for dominant sexual identity narratives and delegitimizes others. Anne Bloom, To Be Real: Sexual Identity Politics in Tort Litigation, 88 N.C. L. Rev. 357, 366 (2010)
What role should tort law play, if any, in creating or challenging the cultural legitimacy of narratives about sexual identity? What alternatives exist? In the next case, Judge Learned Hand (originator of the “Negligence Calculus” case among other well-regarded opinions) reflects the many biases of his era. The case illustrates that recovery for defamation was available in order to “protect” the plaintiff’s reputation against the suggestions of racial impurity, sexual difference or impurity, and many kinds of disability or disease. It also exemplifies the way that judicial reasoning encoded particular values about social identity without being deliberate or transparent about the constructed nature of its value system.
(82 F.2d 154)
This appeal arises upon a judgment dismissing a complaint for libel upon the pleadings. The complaint alleged that the defendant had published an advertisement — annexed and incorporated by reference — made up of text and photographs; that one of the photographs was “susceptible of being regarded as representing plaintiff as guilty of indecent exposure and as being a person physically deformed and mentally perverted”; that some of the text, read with the offending photograph, was “susceptible of being regarded as falsely representing plaintiff as an utterer of salacious and obscene language”; and finally that “by reason of the premises plaintiff has been subjected to frequent and conspicuous ridicule, scandal, reproach, scorn, and indignity.”
The advertisement was of “Camel” cigarettes; the plaintiff was a widely known gentleman steeple-chaser, and the text quoted him as declaring that “Camel” cigarettes “restored” him after “a crowded business day.” Two photographs were inserted; the larger, a picture of the plaintiff in riding shirt and breeches, seated apparently outside a paddock with a cigarette in one hand and a cap and whip in the other. This contained the legend, “Get a lift with a Camel”; neither it, nor the photograph, is charged as part of the libel, except as the legend may be read upon the other and offending photograph. That represented him coming from a race to be weighed in; he is carrying his saddle in front of him with his right hand under the pommel and his left under the cantle; the line of the seat is about twelve inches below his waist. Over the pommel hangs a stirrup; over the seat at his middle a white girth falls loosely in such a way that it seems to be attached to the plaintiff and not to the saddle. So regarded, the photograph becomes grotesque, monstrous, and obscene; and the legends, which without undue violence can be made to match, reinforce the ribald interpretation. That is the libel.
The answer alleged that the plaintiff had posed for the photographs and been paid for their use as an advertisement; a reply, that they had never been shown to the plaintiff after they were taken. On this showing the judge held that the advertisement did not hold the plaintiff up to the hatred, ridicule, or contempt of fair-minded people, *155 and that in any event he consented to its use and might not complain.
We dismiss at once so much of the complaint as alleged that the advertisement might be read to say that the plaintiff was deformed, or that he had indecently exposed himself, or was making obscene jokes by means of the legends. Nobody could be fatuous enough to believe any of these things; everybody would at once see that it was the camera, and the camera alone, that had made the unfortunate mistake. If the advertisement is a libel, it is such in spite of the fact that it asserts nothing whatever about the plaintiff, even by the remotest implications. It does not profess to depict him as he is; it does not exaggerate any part of his person so as to suggest that he is deformed; it is patently an optical illusion, and carries its correction on its face as much as though it were a verbal utterance which expressly declared that it was false.
It would be hard for words so guarded to carry any sting, but the same is not true of caricatures, and this is an example; for, notwithstanding all we have just said, it exposed the plaintiff to overwhelming ridicule. The contrast between the drawn and serious face and the accompanying fantastic and lewd deformity was so extravagant that, though utterly unfair, it in fact made of the plaintiff a preposterously ridiculous spectacle; and the obvious mistake only added to the amusement. Had such a picture been deliberately produced, surely every right-minded person would agree that he would have had a genuine grievance; and the effect is the same whether it is deliberate or not. Such a caricature affects a man’s reputation, if by that is meant his position in the minds of others; the association so established may be beyond repair; he may become known indefinitely as the absurd victim of this unhappy mischance. Literally, therefore, the injury falls within the accepted rubric; it exposes the sufferer to “ridicule” and “contempt.” Nevertheless, we have not been able to find very much in the books that is in point [sic], for although it has long been recognized that pictures may be libels, and in some cases they have been caricatures, in nearly all they have impugned the plaintiff at least by implication, directly or indirectly uttering some falsehood about him. [***]
The defendant answers that every libel must affect the plaintiff’s character; but if by “character” is meant those moral qualities which the word ordinarily includes, the statement is certainly untrue, for there are many libels which do not affect the reputation of the victim in any such way. Thus, it is a libel to say that a man is insane [cc] or that he has negro blood if he professes to be white (Stultz v. Cousins [C.C.A.6] 242 F. 794); or is too educated to earn his living (Martin v. Press Pub. Co., 93 App.Div. 531); or is desperately poor (Moffatt v. Cauldwell, 3 Hun [N.Y.] 26); or that he is a eunuch (Eckert v. Van Pelt, 69 Kan. 357); or that he has an infectious disease, even though not venereal (Villers v. Monsley, 2 Wils. 403; Simpson v. Press Pub. Co., 33 Misc. 228); or that he is illegitimate (Shelby v. Sun P. & P. Ass’n, 38 Hun [N.Y.] 474, affirmed on opinion below, 109 N.Y. 611); or that his near relatives have committed a crime (Van Wiginton v. Pulitzer Pub. Co., 218 F. 795 [C.C.A.8]; Merrill v. Post Pub. Co., 197 Mass. 185); or that he was mistaken for Jack Ketch (Cook v. Ward, 6 Bing. 409); or that a woman was served with process in her bathtub (Snyder v. New York Press Co., 137 App.Div. 291). It is indeed not true that all ridicule (Lamberti v. Sun P. & P. Ass’n), or all disagreeable comment (Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99; Cohen v. New York Times Co., 153 App.Div. 242), is actionable; a man must not be too thinskinned or a self-important prig; but this advertisement was more than what only a morbid person would not laugh off; the mortification, however ill-deserved, was a very substantial grievance.
*156 A more plausible challenge is that a libel must be something that can be true or false, since truth is always a defense. It would follow that if, as we agree, the picture was a mistake on its face and declared nothing about the plaintiff, it was not a libel. We have been able to find very little on the point. In Dunlop v. Dunlop Rubber Co. (1920) 1 Irish Ch.&Ld.Com. 280, 290-292, the picture represented the plaintiff in foppish clothes, and the opinion seems to rely merely upon the contempt which that alone might have aroused, but those who saw it might have taken it to imply that the plaintiff was in fact a fop. [***] The gravamen of the wrong in defamation is not so much the injury to reputation, measured by the opinions of others, as the feelings, that is, the repulsion or the light esteem, which those opinions engender. We are sensitive to the charge of murder only because our fellows deprecate it in most forms; but a head-hunter, or an aboriginal American Indian, or a gangster, would regard such an accusation as a distinction, and during the Great War an “ace,” a man who had killed five others, was held in high regard.
Usually it is difficult to arouse feelings without expressing an opinion, or asserting a fact; and the common law has so much regard for truth that it excuses the utterance of anything that is true. But it is a non sequitur to argue that whenever truth is not a defense, there can be no libel; that would invert the proper approach to the whole subject. In all wrongs we must first ascertain whether the interest invaded is one which the law will protect at all; that is indeed especially important in defamation, for the common law did not recognize all injuries to reputation, especially when the utterance was oral. But the interest here is by hypothesis one which the law does protect; the plaintiff has been substantially enough ridiculed to be in a position to complain. The defendant must therefore find some excuse, and truth would be an excuse if it could be pleaded. The only reason why the law makes truth a defense is not because a libel must be false, but because the utterance of truth is in all circumstances an interest paramount to reputation; it is like a privileged communication, which is privileged only because the law prefers it conditionally to reputation. When there is no such countervailing interest, there is no excuse; and that is the situation here. In conclusion therefore we hold that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable; that the fact that it did not assume to state a fact or an opinion is irrelevant; and that in consequence the publication is actionable.
Finally, the plaintiff’s consent to the use of the photographs for which he posed as an advertisement was not a consent to the use of the offending photograph; he had no reason to anticipate that the lens would so distort his appearance. If the defendant wished to fix him with responsibility for whatever the camera might turn out, the result should have been shown him before publication. Possibly anyone who chooses to stir such a controversy in a court cannot have been very sensitive originally, but that is a consideration for the jury, which, if ever justified, is justified in actions for defamation.
Judgment reversed; cause remanded for trial.
Note 1. What is the defamatory statement or communication here?
Note 2. Proving Defamatory Meaning: Innuendo, Colloquium, and Inducement.
As mentioned above, defamation featured heightened pleading requirements at common law and it retains many archaic terms, at least in some jurisdictions. The Restatement describes a few of these.
Under common law pleading, in framing a declaration for defamation, when the defamatory meaning of the communication or its applicability to the plaintiff depended upon extrinsic circumstances, the pleader averred their existence in a prefatory statement called the “inducement.” In what was ordinarily called the “colloquium,” he alleged that the publication was made of and concerning the plaintiff and of and concerning the extrinsic circumstances. The communication he set forth verbatim and in the “innuendo” explained the meaning of the words. The function of the innuendo was explanation; it could not change or enlarge the sense or meaning of the words. It could only explain or apply them in the light of the other averments in the declaration…. Restatement (Second) of Torts § 563 (1977), Comment f.
If the communication is not obviously defamatory about the plaintiff, the plaintiff must prove the way in which the communication may be understood as defamatory. This is known as the innuendo. The plaintiff will also need to make clear that it refers to them. As noted above, this is also known as the colloquium or “of and concerning” requirement. In addition, the plaintiff may need to provide extrinsic evidence that offers context or proof of their claims about the innuendo and colloquium. This third element is known as the inducement. Be careful to keep the term as defined here narrowly tied to defamation since the word “inducement” has distinct and very different meanings in other legal contexts (such as criminal law and in intellectual property, for instance).
Note 3. Recall that whether a statement can be read as defamatory is a question for the judge. But whether it was actually understood in that way is a question for the jury. How would you explain this allocation of authority and do you think it makes sense, normatively, to divide and allocate the questions of defamatory meaning in this way?
Note 4. Why does Judge Learned Hand talk at length about the “defense” of truth?
Note 5. What do you observe about the constructed nature of what is or isn’t defamatory? Whom and what does the tort protect?
Note 6.Revisiting the Legacy (and Biases) of Renowned Jurists Like Learned Hand. Judge Learned Hand is held in extraordinarily high esteem as measured by his influence in tort law’s scholarship and case law. This case is rarely cited in full partly—I suspect—due to the offensive language and racist analogies. Yet this opinion, authored by one of the greatest American jurists, makes clear that at one time being a person of color was considered so negative a fact in terms of legal status that it was defamatory to falsely state that someone was a person of color if they were not (Stultz v. Cousins, cited above). Even more pointedly, Judge Learned Hand’s own analogizing leads him casually to equate Native Americans with gangsters and to assume without evidence that accusing them of murder would not be defamatory but rather celebratory. Ironically and unfortunately, an opinion vindicating the interests protected by the tort of defamation is, itself, false and defamatory towards Native Americans as a group.
How should the legacy of influential jurists be evaluated, and reevaluated, as our ideas about race, gender and other socially constructed categories evolve? Tort law’s fact-sensitivity and “reasonableness” standards are valuable in part because they can be tailored to the time and place of adjudication. The flip side of this jurisprudential benefit, however, is that tort law necessarily will be shaped by the various constructs and biases of its time. How should legal principles from earlier eras be considered and amended when applied in our (aspirationally) more progressive era? If we seek to overcome biases and make the law more just, how should we deal with the markers of racism, structural discrimination, and other implicit biases that infect the cases and scholarship of those the profession still holds in high esteem?
As you likely recall from Module 3 or your prior study of negligence, Judge Hand’s negligence calculus was formative in capturing how tort law might seek to balance deterrence and efficiency, and his many other opinions have remained crucial touchstones in many areas of the common law. It may be tempting to try to remove harmful speech or to minimize the work of people whose ideas are now plainly visible as biased and harmful. However, in a precedent-based system like ours, it could be significantly destabilizing to remove or ignore the work of a particular jurist, especially one with so powerful an imprint on the common law. Should the legal system try, in any event? How should the legacy of influential jurists be evaluated, and reevaluated, as our ideas about race, gender and other socially constructed categories evolve? Casebook editors often make the decision to edit ugly language so as to sanitize earlier opinions. That choice is a harder one to defend in the context of defamation in which constructions of identity and value are central to allegations of defamatory meaning.
To what extent did Judge Learned Hand’s peers do better on these points? Is the entire era tainted or just the work of a few? Does any potential solution require determining the scope of the problem? And if we retain the opinions and work of jurists like Learned Hand, should we remove offensive segments in cases like this one because they can be viscerally upsetting (or for other reasons), or should they remain a part of the record so that students and professors alike can highlight and learn from them, studying the forms of structural discrimination that were not even at issue or discussed in the case in chief? What are the risks, as well as the benefits, of adopting either the removal or highlighting approach? What other approaches can you imagine or would you recommend?
Should the legacy of racism and other discrimination be made more visible even when the subject matter doesn’t seem to require it? In a system that bases progress on precedent, what duties does tort law have to revisit its historical foundations and revisit the voices and presumptions that shaped it?
1. In the contract, Fuller provided Federal Credit with both his home address and the name and telephone number of his employer, Charter. Atha Ellis, an employee of Federal Credit, testified that Federal Credit attempted to send the notice to Fuller at his home address by certified mail; however, Ellis testified, the certified letter was either “refused” or “not claimed” by Fuller.
2. We note that, with regard to Federal Credit’s mailing of the notice to Fuller at his place of employment, the contract provided: “You [Fuller] agree to the release, disclosure and use of any information contained herein and in the ... information form including but not limited to account/contract status ... to whomever deemed necessary by us.” (Emphasis added.)
3. The record on appeal reveals that Fuller consented to the entry of a judgment against him in the circuit court in the amount of \$1,500. (“The nominal defendant [Fuller] has consented to judgment in the amount of \$1,500.”).
4. Furthermore, we note that Fuller admitted at trial that he did not pay the amount due under the contract in a timely manner.
5. In this respect, Paul Greenberg, Pulitzer-prize winning journalist testified in a deposition used as evidence in this case, while being questioned by defendant’s attorney:
• Q. If the author testifies that he made up a story, isn’t that fiction?
• A. Sir, it’s false. All things that are false are not necessarily fiction.
• Q. Tell me the difference between “false” and “fiction.”
• A. I can give you an illustration. William Faulkner wrote fiction. Pravda published falsehoods.
6. This court once said, in another context, that: “While few of us would want to change our system which protects such a large array of “rights,” it may be that we have more than most of us need, and more than is good for a majority of us.” Norwood v. Soldier of Fortune Magazine, Inc., 651 F. Supp. 1397 (W.D.Ark.1987).
7. Although the court would certainly not allow a newspaper poll to affect in any way its judgment in this matter, it is interesting to note the responses to a poll contained in the December 10, 1991, issue of the Arkansas Democrat–Gazette. Readers were asked: “Do you believe the stories in the supermarket tabloids are real?” The response: Yes—53.1%, No—46.9%. While the article reporting the poll contained the disclaimer that it did not purport to be a “scientific survey and reflects only the opinion of those who choose to participate”, it at least indicates that over one-half of those who bothered to respond either believed articles in supermarket tabloids to be true or lied about it. It, of course, might be that only people who read and believe supermarket tabloids respond to call in telephone polls. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/07%3A_Defamation/7.01%3A_Introduction_to_Defamations_Elements_at_Common_Law_%28Until_1964%29.txt |
Contemporary defamation law has evolved to include substantial constitutional limits on the interests protected through the tort. At a pivotal moment in the Civil Rights Movement in 1964, the Supreme Court handed down a landmark decision, New York Times v. Sullivan, in which it ruled that Alabama’s libel law unconstitutionally infringed on the First Amendment’s protections for freedom of speech. New York Times v. Sullivan fundamentally altered the legal landscape. Sullivan’s importance is hard to overstate. If you’ve worked in journalism or studied mass media or communications, you likely have lived with or studied its impact. It marks a critical moment when advocates succeeded in using the judicial system to expand journalists’ capacity to report on civil rights violations, and it fundamentally changed the law of all U.S. jurisdictions with respect to defamation. By defining parameters within which the First Amendment trumped the rights of states to protect individuals’ reputational interests, it “constitutionalized” state law essentially overnight.
“Heed Their Rising Voices,” the advertisement at issue in Sullivan is reproduced below the opinion. The advertisement originally took up two full pages of the newspaper and was included as an appendix to the legal opinion.
Of further note: without intending anything derogatory or offensive, the opinion repeatedly uses the word “Negro.” This was deemed a respectful term at the time but is no longer so. Please use appropriate contemporary language unless quoting verbatim from the text. (Alternatively, please follow any class agreements or ground rules your instructor has set on the topic).
(84 S. Ct. 710)
Mr. Justice BRENNAN delivered the opinion of the Court.
We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.
Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was ‘Commissioner of Public Affairs and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales’ He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded him damages of \$500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So.2d 25.
Respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. Entitled ‘Heed Their Rising Voices,’ the advertisement began by stating that ‘As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.’ It went on to charge that ‘in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. * * *’ Succeeding paragraphs purported to illustrate the ‘wave of terror’ by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, ‘the struggle for the right-to-vote.’ and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery.
The text appeared over the names of 64 persons, many widely known for their *714 activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading ‘We in the south who are struggling daily for dignity and freedom warmly endorse this appeal,’ appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the ‘Committee to Defend Martin Luther King and the Struggle for Freedom in the South,’ and the officers of the Committee were listed.
Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent’s claim of libel. They read as follows:
Third paragraph: ‘In Montgomery, Alabama, after students sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.’
Sixth paragraph: ‘Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for ‘speeding,’ ‘loitering’ and similar ‘offenses.’ And now they have charged him with ‘perjury’—a felony under which they could imprison him for ten years. * * *’
Although neither of these statements mentions respondent by name, he contended that the word ‘police’ in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of ‘ringing’ the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission.[1] As to the sixth paragraph, he contended that since arrests are ordinarily made by the police, the statement ‘They have arrested (Dr. King) seven times’ would be read as referring to him; he further contended that the ‘They’ who did the arresting would be equated with the ‘They’ who committed the other described acts and with the ‘Southern violators.’ Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King’s protests with ‘intimidation and violence,’ bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.
It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capital steps, they sang the National Anthem and not ‘My Country, ‘Tis of Thee.’ Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on *715 a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time ‘ring’ the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four; and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.
On the premise that the charges in the sixth paragraph could be read as referring to him, respondent was allowed to prove that he had not participated in the events described. Although Dr. King’s home had in fact been bombed twice when his wife and child were there, both of these occasions antedated respondent’s tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who were. Three of Dr. King’s four arrests took place before respondent became Commissioner. Although Dr. King had in fact been indicted (he was subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had nothing to do with procuring the indictment.
Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel.[2] One of his witnesses, a former employer, testified that if he had believed the statements, he doubted whether he ‘would want to be associated with anybody who would be a party to such things that are stated in that ad,’ and that he would not re-employ respondent if he believed ‘that he allowed the Police Department to do the things that the paper say he did.’ But neither this witness nor any of the others testified that he had actually believed the statements in their supposed reference to respondent. [***]
The trial judge submitted the case to the jury under instructions that the statements in the advertisement were ‘libelous per se’ and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made ‘of and concerning’ respondent.
The jury was instructed that, because the statements were libelous per se, ‘the law * * * implies legal injury from the bare fact of publication itself,’ ‘falsity and malice are presumed,’ ‘general damages need not be alleged or proved but are presumed,’ and ‘punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown.’ An award of punitive damages—as distinguished from ‘general’ damages, which are compensatory in nature—apparently requires proof of actual malice under Alabama law, and the judge charged that ‘mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages.’ He refused to charge, however, that the jury must be ‘convinced’ of malice, in the sense of ‘actual intent’ to harm or ‘gross negligence and recklessness, to make such an award, and he also refused to require that a verdict for respondent differentiate between compensatory and punitive damages. The judge rejected petitioners’ contention that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments.
*717 In affirming the judgment, the Supreme Court of Alabama sustained the trial judge’s rulings and instructions in all respects. [c] It held that ‘(w)here the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tends to bring the individual into public contempt,’ they are ‘libelous per se’; that ‘the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff’; and that it was actionable without ‘proof of pecuniary injury * * *, such injury being implied.’ [c] It approved the trial court’s ruling that the jury could find the statements to have been made ‘of and concerning’ respondent, stating: ‘We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body.’ [c]
In sustaining the trial court’s determination that the verdict was not excessive, the court said that malice could be inferred from the Times’ ‘irresponsibility’ in printing the advertisement while ‘the Times in its own files had articles already published which would have demonstrated the falsity of the allegations in the advertisement’; from the Times’ failure to retract for respondent while retracting for the Governor, whereas the falsity of some of the allegations was then known to the Times and ‘the matter contained in the advertisement was equally false as to both parties’; and from the testimony of the Times’ Secretary that, apart from the statement that the dining hall was padlocked, he thought the two paragraphs were ‘substantially correct.’ [c] The court reaffirmed a statement in an earlier opinion that ‘There is no legal measure of damages in cases of this character.’ [c] It rejected petitioners’ constitutional contentions with the brief statements that ‘The First Amendment of the U.S. Constitution does not protect libelous publications’ and ‘The Fourteenth Amendment is directed against State action and not private action.’ [c]
Because of the importance of the constitutional issues involved, we granted the separate petitions for certiorari of the individual petitioners and of the Times. [c] We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. [fn] *718 We further hold that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for respondent. [***]
Under Alabama law as applied in this case, a publication is ‘libelous per se’ if the words ‘tend to injure a person * * * in his reputation’ or to ‘bring (him) into public contempt’; the trial court stated that the standard was met if the words are such as to ‘injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust * * *.’ The jury must find that the words were published ‘of and concerning’ the plaintiff, but where the plaintiff is a public official his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once ‘libel per se’ has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. [cc] His privilege of ‘fair comment’ for expressions of opinion depends on the truth of the facts upon which the comment is based. [c] Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. [c]
The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments. [Editor’s note: much of the discussion of the Fourteenth Amendment is omitted throughout the opinion.]
Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that the Constitution does not protect libelous publications. [fn] Those statements do not foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials. [***] In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the Court was equally divided and the question was not decided. [c] In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet ‘libel’ than we have to other ‘mere labels’ of state law. [c] Like insurrection, [fn] contempt, [fn] advocacy of unlawful acts [fn], breach of the peace [fn], obscenity [fn ], solicitation of legal business [fn], and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.
The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ [c] ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’ [c] ‘(I)t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions,’ [c] and this opportunity is to be afforded for ‘vigorous advocacy’ no less than ‘abstract discussion.’ [c]
The First Amendment, said Judge Learned Hand, ‘presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.’ United States v. Associated Press, 52 F. Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375—376, gave the principle its classic formulation:
‘Those who won our independence believed * * * that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, *721 hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.’
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. [cc] The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.
Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker. [c] The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’ [c] As Madison said, ‘Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press.’ [c] [***]
That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need * * * to survive,’ [c] was also recognized by the Court of Appeals for the District of Columbia Circuit [c]. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman’s libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:
‘Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. * * * The interest of the public here outweighs the interest of appellant *722 or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable. * * * Whatever is added to the field of libel is taken from the field of free debate.’[3]
Injury to official reputation error affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and *273 reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. [c] This is true even though the utterance contains ‘half-truths’ and ‘misinformation.’ [c] Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. [cc] If judges are to be treated as ‘men of fortitude, able to thrive in a hardy climate,’ [c] surely the same must be true of other government officials, such as elected city commissioners.[4] Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment.
[The Court discusses the Sedition Act of 1798, which made it a crime, punishable by a \$5,000 fine and five years in prison, ‘if any person shall write, print, utter or publish * * * any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress * * *, or the President * * *, with intent to defame * * * or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.’ The Act expired in 1801, but the Court concludes here that it was unconstitutional.]
What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. [fn] The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. [c] Alabama, for example, has a criminal libel law which subjects to prosecution ‘any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude,’ and which allows as punishment upon conviction a fine not exceeding \$500 and a prison sentence of six months. Alabama Code, Tit. 14, s 350. Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action.
The judgment awarded in this case—without the need for any proof of actual pecuniary loss—was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil *725 lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication.[5] Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is ‘a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.’ [c]
The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, 361 U.S. 147, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale. We said:
‘For if the bookseller is criminally liable without knowledge of the contents, * * * he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. * * * And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. * * * (H)is timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitutionally * suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.’ [c]
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.[6] Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. [cc] Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’ [c] The rule thus dampens the vigor and limits the variety of public debate. It is *726 inconsistent with the First and Fourteenth Amendments.
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. An oft-cited statement of a like rule, which has been adopted by a number of state courts, [fn] is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711 (1908). The State Attorney General, a candidate for re-election and a member of the commission charged with the management and control of the state school fund, sued a newspaper publisher for alleged libel in an article purporting to state facts relating to his official conduct in connection with a school-fund transaction. The defendant pleaded privilege and the trial judge, over the plaintiff’s objection, instructed the jury that
‘where an article is published and circulated among voters for the sole purpose of giving what the defendant * believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case the burden is on the plaintiff to show actual malice in the publication of the article.’
In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a general verdict was returned for the defendant. On appeal the Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P., at 286):
‘(I)t is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The *727 public benefit from publicity is so great and the chance of injury to private character so small that such discussion must be privileged.’
The court thus sustained the trial court’s instruction as a correct statement of the law, saying:
‘In such a case the occasion gives rise to a privilege qualified to this extent. Anyone claiming to be defamed by the communication must show actual malice, or go remediless. This privilege extends to a great variety of subjects and includes matters of * public concern, public men, and candidates for office.’ [c]
Such a privilege for criticism of official conduct[7] is appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen. In Barr v. Matteo, 360 U.S. 564, 575, this Court held the utterance of a federal official to be absolutely privileged if made ‘within the outer perimeter’ of his duties. The States accord the same immunity to statements of their highest officers, although some differentiate their lesser officials and qualify the privilege they enjoy. [fn] But all hold that all officials are protected unless actual malice can be proved. The reason for the official privilege is said to be that the threat of damage suits would otherwise ‘inhibit the fearless, vigorous, and effective administration of policies of government’ and ‘dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.’ [c]
Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer. [c] As Madison said, see supra, p. 723, ‘the censorial power is in the people over the Government, and not in the Government over the people.’ It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.
We conclude that such a privilege is required by the First and Fourteenth Amendments.
We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action,[8] the rule requiring proof of actual malice is applicable. While *728 Alabama law apparently requires proof of actual malice for an award of punitive damages,[9] where general damages are concerned malice is ‘presumed.’ Such a presumption is inconsistent with the federal rule. ‘The power to create presumptions is not a means of escape from constitutional restrictions,’ [c]; ‘(t)he showing of malice required for the forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff * * *.’ [c] Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed and the case remanded. [cc]
Since respondent may seek a new trial, we deem that considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment for respondent. This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across ‘the line between speech unconditionally guaranteed and speech which may legitimately be regulated.’ [c] [***]
Applying these standards, we consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law. The case of the individual petitioners requires little discussion. Even assuming that they could constitutionally be found to have authorized the use of their names on the advertisement, there was no evidence whatever that they were aware of any erroneous statements or were in any way reckless in that regard. The judgment against them is thus without constitutional support.
As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times’ Secretary that, apart from the padlocking allegation, he thought the advertisement was ‘substantially correct,’ affords no constitutional warrant for the Alabama Supreme Court’s conclusion that it was a ‘cavalier ignoring of the falsity of the advertisement (from which), the jury could not have but been impressed with the bad faith of The Times, and its maliciousness inferable therefrom.’ The statement does not indicate malice at the time of the publication; even if the advertisement was not ‘substantially correct’—although respondent’s own proofs tend to show that it was—that opinion was at least a reasonable one, and there was no evidence to impeach the witness’ good faith in holding it. The Times’ failure to retract upon respondent’s demand, although it later retracted upon the demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes. Whether or not a failure to retract may ever constitute such evidence, there are two reasons why it does not here.
First, the letter written by the Times reflected a reasonable doubt on its part as to whether the advertisement could reasonably be taken to refer to respondent at all. Second, it was not a final refusal, since it asked for an explanation on this point—a request that respondent chose to ignore. Nor does the retraction upon the demand of the Governor supply the necessary proof. It may be doubted that a failure to retract which is not itself evidence of malice can retroactively become such by virtue of a retraction subsequently made to another party. But in any event that did not happen here, since the *730 explanation given by the Times’ Secretary for the distinction drawn between respondent and the Governor was a reasonable one, the good faith of which was not impeached.
Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times ‘knew’ the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times’ policy of rejecting advertisements containing ‘attacks of a personal character’;[10] their failure to reject it on this ground was not unreasonable. We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice. [cc]
We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury’s finding that the allegedly libelous statements were made ‘of and concerning’ respondent. Respondent relies on the words of the advertisement and the testimony of six witnesses to establish a connection between it and himself. Thus, in his brief to this Court, he states:
‘The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the testimony of a newspaper editor * * *; a real estate and insurance man * * *; the sales manager of a men’s clothing store * * *; a food equipment man * * *; a service station operator * * *; and the operator of a truck line for whom respondent had formerly worked * * *. Each of these witnesses stated that he associated the statements with respondent * * *.’ (Citations to record omitted.)
There was no reference to respondent in the advertisement, either by name or official position. A number of the allegedly libelous statements—the charges that the dining hall was padlocked and that Dr. King’s home was bombed, his person assaulted, and a perjury prosecution instituted against him—did not even concern the police; despite the ingenuity of the arguments which would attach this significance to the word ‘They,’ it is plain that these statements could not reasonably be read as accusing respondent of personal involvement in the acts in question. The statements upon which respondent *731 principally relies as referring to him are the two allegations that did concern the police or police functions: that ‘truckloads of police * * * ringed the Alabama State College Campus’ after the demonstration on the State Capitol steps, and that Dr. King had been arrested * * * seven times.’ These statements were false only in that the police had been ‘deployed near’ the campus but had not actually ‘ringed’ it and had not gone there in connection with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The ruling that these discrepancies between what was true and what was asserted were sufficient to injure respondent’s reputation may itself raise constitutional problems, but we need not consider them here.
Although the statements may be taken as referring to the police, they did not on their face make even an oblique reference to respondent as an individual. Support for the asserted reference must, therefore, be sought in the testimony of respondent’s witnesses. But none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the Police Department and thus bore official responsibility for police conduct; to the extent that some of the witnesses thought respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion not on any statements in the advertisement, and not on any evidence that he had in fact been so involved, but solely on the unsupported assumption that, because of his official position, he must have been.[11] This reliance on the bare fact of respondent’s *732 official position [fn] was made explicit by the Supreme Court of Alabama. That court, in holding that the trial court ‘did not err in overruling the demurrer (of the Times) in the aspect that the libelous matter was not of and concerning the (plaintiff,)’ based its ruling on the proposition that:
‘We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body.’ 273 Ala., at 674—675.
This proposition has disquieting implications for criticism of governmental conduct. For good reason, ‘no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.’ City of Chicago v. Tribune Co., 307 Ill. 595, 601 (1923).
The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, ‘reflects not only on me but on the other Commissioners and the community.’ Raising as it does the possibility that a good-faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.[12]
We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations. Since it was relied on exclusively here, and there was no other evidence to connect the statements with respondent, the evidence was constitutionally insufficient to support a finding that the statements referred to respondent.
*733 The judgment of the Supreme Court of Alabama is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Concurrence of Justice Black, joined by Justice Douglas
I concur in reversing this half-million-dollar judgment against the New York Times Company and the four individual defendants. In reversing the Court holds that ‘the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.’ Ante, p. 727. I base my vote to reverse on the belief that the First and Fourteenth Amendments do not merely ‘delimit’ a State’s power to award damages to ‘public officials against critics of their official conduct’ but completely prohibit a State from exercising such a power. The Court goes on to hold that a State can subject such critics to damages if ‘actual malice’ can be proved against them.
‘Malice,’ even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials. I do not base my vote to reverse on any failure to prove that these individual defendants signed the advertisement or that their criticism of the Police Department was aimed at the plaintiff Sullivan, who was then the Montgomery City Commissioner having supervision of the City’s police; for present purposes I assume these things were proved. Nor is my reason for reversal the size of the half-million-dollar judgment, large as it is. If Alabama has constitutional power to use its civil libel law to impose damages on the press for criticizing the way public officials perform or fail to perform their duties, I know of no provision in the Federal Constitution which either expressly or impliedly bars the State from fixing the amount of damages.
The half-million-dollar verdict does give dramatic proof, however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat. One of the acute and highly emotional issues in this country arises out of efforts of many people, even including some public officials, to continue state-commanded segregation of races in the public schools and other public places, despite our several holdings that such a state practice is forbidden by the Fourteenth Amendment.
Montgomery is one of the localities in which widespread hostility to desegregation has been manifested. This hostility has sometimes extended itself to persons who favor desegregation, particularly to so-called ‘outside agitators,’ a term which can be made to fit papers like the Times, which is published in New York. The scarcity of testimony to show that Commissioner Sullivan suffered any actual damages at all suggests that these feelings of hostility had at least as much to do with rendition of this half-million-dollar verdict as did an appraisal of damages. Viewed realistically, this record lends support to an inference that instead of being damaged Commissioner Sullivan’s political, social, and financial prestige has likely been enhanced by the Times’ publication. Moreover, a second half-million-dollar libel verdict against the Times based on the same advertisement has already been *734 awarded to another Commissioner.
There a jury again gave the full amount claimed. There is no reason to believe that there are not more such huge verdicts lurking just around the corner for the Times or any other newspaper or broadcaster which might dare to criticize public officials. In fact, briefs before us show that in Alabama there are now pending eleven libel suits by local and state officials against the Times seeking \$5,600,000, and five such suits against the Columbia Broadcasting System seeking \$1,700,000. Moreover, this technique for harassing and punishing a free press—now that it has been shown to be possible—is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers.
In my opinion the Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction—by granting the press an absolute immunity for criticism of the way public officials do their public duty. [c] Stopgap measures like those the Court adopts are in my judgment not enough. This record certainly does not indicate that any different verdict would have been rendered here whatever the Court had charged the jury about ‘malice,’ ‘truth,’ ‘good motives,’ ‘justifiable ends,’ or any other legal formulas which in theory would protect the press. Nor does the record indicate that any of these legalistic words would have caused the courts below to set aside or to reduce the half-million-dollar verdict in any amount. [***]
We would, I think, more faithfully interpret the First Amendment by holding that at the very least it leaves the people and the press free to criticize officials and discuss public affairs with impunity. This Nation of our elects many of its important officials; so do the States, the municipalities, the counties, and even many precincts. These officials are responsible to the people for the way they perform their duties. While our Court has held that some kinds of speech and writings, such as ‘obscenity,’ *735 Roth v. United States, 354 U.S. 476, and ‘fighting words,’ Chaplinsky v. New Hampshire, 315 U.S. 568, are not expression within the protection of the First Amendment [c], freedom to discuss public affairs and public officials is unquestionably, as the Court today holds, the kind of speech the First Amendment was primarily designed to keep within the area of free discussion. To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed.
This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. ‘For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.’[13] An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment. [fn] I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction.
Concurrence by Justice Goldberg, joined by Justice Douglas
The Court today announces a constitutional standard which prohibits ‘a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘ACTUAL MALICE’—THAT IS, WITH KNOWLEDGE that it was false or with reckless disregard of whether it was false or not.’ Ante, at p. 726. The Court thus rules that the Constitution gives citizens and newspapers a ‘conditional privilege’ immunizing nonmalicious misstatements of fact regarding the official conduct of a government officer. The impressive array of history[14] and precedent marshaled by the Court, however, confirms my belief that the Constitution affords greater protection than that provided by the Court’s standard to citizen and press in exercising the right of public criticism.
In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. The prized American right ‘to speak one’s *736 mind,’ [c] about public officials and affairs needs ‘breathing space to survive,’ [c]. The right should not depend upon a probing by the jury of the motivation[15] of the citizen or press. The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel.
It has been recognized that ‘prosecutions for libel on government have (no) place in the American system of jurisprudence.’ City of Chicago v. Tribune Co., 307 Ill. 595, 601. I fully agree. Government, however, is not an abstraction; it is made up of individuals—of governors responsible to the governed. In a democratic society where men are free by ballots to remove those in power, any statement critical of governmental action is necessarily ‘of and concerning’ the governors and any statement critical of the governors’ official conduct is necessarily ‘of and concerning’ the government. If the rule that libel on government has no place in our Constitution is to have real meaning, then libel on the official conduct of the governors likewise can have no place in our Constitution.
We must recognize that we are writing upon a clean slate.[16] As the Court notes, although there have been ‘statements of this Court to the effect that the Constitution does not protect libelous publications * * * (n)one of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials.’ Ante, at p. 719. *737 [***]
[The real issue here] is whether that freedom of speech which all agree is constitutionally protected can be effectively safeguarded by a rule allowing the imposition of liability upon a jury’s evaluation of the speaker’s state of mind. If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. And if newspapers, publishing advertisements dealing with public issues, thereby risk liability, there can also be little doubt that the ability of minority groups to secure publication of their views on public affairs and to seek support for their causes will be greatly diminished. [c] The opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms in the area of race relations. [***]To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect ‘the obsolete doctrine that the governed must not criticize their governors.’ [c]
Our national experience teaches that repressions breed hate and ‘that hate menaces stable government.’ [c]. We should be ever mindful of the wise counsel of Chief Justice Hughes:
‘(I)mperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.’ [c]
This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. Freedom of press and of speech ensures that government will respond to the will of the people and that changes may be obtained by peaceful means. [c] [***] The imposition of liability for private defamation does not abridge the freedom of public speech or any other freedom protected by the First Amendment.[17] This, of course, cannot be said ‘where *738 public officials are concerned or where public matters are involved. * * * (O)ne main function of the First Amendment is to ensure ample opportunity for the people to determine and resolve public issues. Where public matters are involved, the doubts should be resolved in favor of freedom of expression rather than against it.’ Douglas, The Right of the People (1958), p. 41.
In many jurisdictions, legislators, judges and executive officers are clothed with absolute immunity against liability for defamatory words uttered in the discharge of their public duties. [c]
Judge Learned Hand ably summarized the policies underlying the rule:
‘It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. * * * [***] [c]
If the government official should be immune from libel actions so that his ardor to serve the public will not be dampened and ‘fearless, vigorous, and effective administration of policies of government’ not be inhibited, [c], then the citizen and the press should likewise be immune from libel actions for their criticism of official conduct. Their ardor as citizens will thus not be dampened and they will *739 be free ‘to applaud or to criticize the way public employees do their jobs, from the least to the most important.’ If liability can attach to political criticism because it damages the reputation of a public official as a public official, then no critical citizen can safely utter anything but faint praise about the government or its officials. The vigorous criticism by press and citizen of the conduct of the government of the day by the officials of the day will soon yield to silence if officials in control of government agencies, instead of answering criticisms, can resort to friendly juries to forestall criticism of their official conduct.
The conclusion that the Constitution affords the citizen and the press an absolute privilege for criticism of official conduct does not leave the public official without defenses against unsubstantiated opinions or deliberate misstatements. ‘Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment * * * of free speech * * *.’ [c] The public official certainly has equal if not greater access than most private citizens to media of communication. In any event, despite the possibility that some excesses and abuses may go unremedied, we must recognize that ‘the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, (certain) liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.’ [c] As Mr. Justice Brandeis correctly observed, ‘sunlight is the most powerful of all disinfectants.’
For these reasons, I strongly believe that the Constitution accords citizens and press an unconditional freedom to criticize official conduct. It necessarily follows that in a case such as this, where all agree that the allegedly defamatory statements related to official conduct, the judgments for libel cannot constitutionally be sustained.
Note 1. “Heed Their Rising Voices” is viewable via Wikipedia.
Note 2.Political or Ideological Arguments. Shifting from state courts and even circuit courts to the Supreme Court’s jurisprudence often entails diving into longer opinions and complex analyses that may involve theory and history. This is especially true with respect to the First Amendment in the Sullivan era, in which new case law and standards were being developed and would continue to unfold for about two decades. The area is highly political (which remains true today). Defamation’s constitutional jurisprudence delivers sketches of judicial philosophy to a greater extent than introductory torts materials typically do, thus permitting law students to begin to identify particular kinds of arguments and align them with judicial and political philosophies of law. Can you identify two to three arguments that are expressly political or ideological? What sorts of evidence and rationales do you observe in the justices’ legal reasoning?
Note 3. How strong was “truth” as a defense in Alabama? What do you make of that?
Note 4. How robust does Alabama’s “of and concerning” requirement appear to be?
Note 5. How relevant do you think it was that the dispute occurred in the context of the Civil Rights Movement and Alabama’s role in resisting those efforts (with persistently segregationist policies, for instance)? Do your normative views of the clash between defamation and the First Amendment change depending on the context. If so, how so?
Note 6. Burdens of Proof.Sullivan kicked off an era of constitutionalization of defamation law that resulted in several lasting changes. One of these is that the court heightened the level of proof to be applied when determining various issues from a preponderance of the evidence to a “clear and convincing” standard. This higher standard applies to the issues of falsity, actual malice (knowledge of falsity or reckless disregard for the truth) and the “of and concerning” requirement, in cases involving public officials. New York Times, 376 U.S. at 284-85, 288-289. Subsequent cases extended this change to plaintiffs who are public figures (or limited-purpose public figures), and the higher standard often also applies when the person is a private figure involved in a matter of public or general concern.
Note 7. Justice Black’s concurrence faults the majority for not going far enough. What does he believe the First Amendment permits? What is he concerned about with respect to actual malice?
Note 8. What is Justice Black concerned about with respect to damages? Why does it seem especially pressing to him at the time of the ruling and on the facts of this case?
Note 9. Like Justice Black, Justice Goldberg calls for recognition of an “absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses.” However, Goldberg’s emphasis and arguments are somewhat different. What arguments and concerns do you identify in his concurrence?
Note 10.The Difficulty of Deciding Defamation Disputes as a Matter of Law. Due to Sullivan and its progeny, the precise culpability standard in defamation varies a great deal, depending on both the speaker and the person about whom the statement is made. Like IIED (which uses “intentional conduct or recklessness” for its culpability standard), defamation in the modern era can come with Sullivan’s special “actual malice” standard. Public officials (such as the government actor in Sullivan) receive less protection from accidentally false speech. You can think of this almost like a kind of immunity for the rest of us, that is, as a privilege for speakers who wish to criticize the government or its officials. A commitment to robust freedom of expression about the government justifies imposing heightened protection for speech about public officials, and the way the tort of defamation accomplishes this is by heightening the culpability standard the plaintiff must satisfy. In the wake of Sullivan, however, the same rationale has been extended from public officials to “public figures,” such as celebrities. Like government officials, public figures similarly face higher hurdles to recover in defamation cases. Similarly, private citizens involved in matters of public concern are treated as public figures with respect to speech related to the matter of public concern.
The kinds of precautions a speaker must take to avoid charges of negligence can vary greatly depending on the circumstances. Defamation tends to be difficult to dismiss during early stages of a dispute because of the factual evidence needed to determine what the speaker knew or should have known and to evaluate the conditions under which they spoke. Further, whether something is capable of carrying defamatory meaning can be a difficult factual inquiry; whether it actually communicated defamatory meaning to the communication’s recipients is yet another; and whether the recipients of the communications understood them to be about this plaintiff is still a third. You have likely seen by now that many product liability and general negligence cases are quite fact-intensive; almost all defamation cases are equally or even more so.
Think back to Module 3’s discussions of duty as a judicial gatekeeping doctrine versus proximate cause as a liability limiting principle determined by the jury as a matter of fact. What arguments might you make in favor of facilitating dismissal of defamation cases on early motions as a matter of law (in a manner similar deciding to duty) versus letting defamation disputes proceed to a full factual record (in a manner similar to deciding proximate cause)? What is the right balance between the various interests protected, descriptively and normatively? What is the appropriate legal mechanism for achieving that balance, do you think?
(418 U.S. 323)
Mr. Justice POWELL delivered the opinion of the Court.
This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher’s constitutional privilege against liability for defamation of a private citizen. 410 U.S. 925 (1973).
*323 [Summary of facts: A Chicago policeman named Nuccio was convicted of murder. The victim’s family retained petitioner, Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio. Respondent Robert Welch’s magazine, American Opinion, which was published by the ultra-conservative John Birch society, featured an article that about Nuccio’s murder trial. The magazine alleged that the trial was part of a Communist conspiracy to discredit the local police, it falsely stated that petitioner Gertz had arranged Nuccio’s ‘frameup,’ it implied that Gertz had a criminal record, and falsely identified his political beliefs.] [***]
*326 In his capacity as counsel for the Nelson [victim’s] family in the civil litigation, Gertz attended the coroner’s inquest into the boy’s death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding Gertz’s remote connection with the prosecution of Nuccio, Welch’s magazine portrayed him as an architect of the ‘frameup.’ According to the article, the police file on petitioner took ‘a big, Irish cop to lift,’ The article stated that Gertz had been an official of the ‘Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government.’ It labeled Gertz a ‘Leninist’ and a ‘Communist-fronter.’ It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that ‘probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.’
These statements contained serious inaccuracies. The implication that Gertz had a criminal record was false. Gertz had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that Gertz was a ‘Leninist’ or a ‘Communist-fronter.’ And he had never been a member of the ‘Marxist League for Industrial Democracy’ or the ‘Intercollegiate Socialist Society.’
*327 The managing editor of American Opinion made no effort to verify or substantiate the charges against Gertz. Instead, he appended an editorial introduction stating that the author (a regular contributor to the magazine) had ‘conducted extensive research into the Richard Nuccio Case.’ And he included in the article a photograph of Gertz and wrote the caption that appeared under it: ‘Elmer Gertz of Red Guild harasses Nuccio.’ The editor denied any knowledge of the falsity of the statements concerning Gertz and stated that he had relied on the author’s reputation and on his prior experience with the accuracy and authenticity of the author’s contributions to American Opinion. Welch placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago.
[Gertz] filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by [Welch] injured his reputation as a lawyer and a citizen. Before filing an answer, respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, apparently on the ground that petitioner failed to allege special damages. But the court ruled that statements contained in the article constituted libel per se under Illinois law and that consequently Gertz need not plead special damages. 306 F. Supp. 310 (1969)
After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation. It asserted that petitioner was a public official or a public figure and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964). Under this rule respondent would escape liability unless *328 petitioner could prove publication of defamatory falsehood ‘with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ Id., at 279—280, 84 S. Ct., at 726. Respondent claimed that petitioner could not make such a showing and submitted a supporting affidavit by the magazine’s managing editor. The editor denied any knowledge of the falsity of the statements concerning petitioner and stated that he had relied on the author’s reputation and on his prior experience with the accuracy and authenticity of the author’s contributions to American Opinion.
The District Court denied respondent’s motion for summary judgment in a memorandum opinion of September 16, 1970. The court did not dispute respondent’s claim to the protection of the New York Times standard. Rather, it concluded that petitioner might overcome the constitutional privilege by making a factual showing sufficient to prove publication of defamatory falsehood in reckless disregard of the truth. During the course of the trial, however, it became clear that the trial court had not accepted all of respondent’s asserted grounds for applying the New York Times rule to this case. It thought that respondent’s claim to the protection of the constitutional privilege depended on the contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), apparently discounting the argument that a privilege would arise from the presence of a public issue.
After all the evidence had been presented but before submission of the case to the jury, the court ruled in effect that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se *329 under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded \$50,000 to petitioner.
Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent’s contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury’s verdict.[18] [***]
Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court’s determination that petitioner was not a public figure, it did not overturn that finding.3 It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest… [***] After reviewing the record, the Court of Appeals endorsed the District Court’s conclusion that petitioner had failed to show by clear and *332 convincing evidence that respondent had acted with ‘actual malice’ as defined by New York Times. There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made in the article. In fact, he knew nothing about petitioner except what he learned from the article. The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a “high degree of awareness of . . . probable falsity.” [cc] The evidence in this case did not reveal that respondent had cause for such an awareness. The Court of Appeals therefore affirmed, 471 F.2d 801 (1972). For the reasons stated below, we reverse.
The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. [***]
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but *340 on the competition of other ideas.[19] But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270. They belong to that category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. [***] And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, 376 U.S., at 279: ‘Allowance of the defense of truth, *341 with the burden of proving it on the defendant, does not mean that only false speech will be deterred.’ The First Amendment requires that we protect some falsehood in order to protect speech that matters.
The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. [cc] Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation. The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.’ [***]
*342 Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. [***] The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood.
Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this *343 substantial abridgment of the state law right to compensation for wrongful hurt to one’s reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra. We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.
Theoretically, of course, the balance between the needs of the press and the individual’s claim to compensation for wrongful injury might be struck on a case-by-case basis. As Mr. Justice Harlan hypothesized, ‘it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed.’ Rosenbloom v. Metromedia, Inc., 403 U.S., at 63 (footnote omitted). But this approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general *344 application. Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is often true that not all of the considerations which justify adoption of a given rule will obtain in each particular case decided under its authority.
With that caveat we have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-help—using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.[20] Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.
More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. [***]
Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an ‘influential role in ordering society.’ [c] He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.
For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a *346 legal remedy for defamatory falsehood injurious to the reputation of a private individual. [***] the Constitution [does not] require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The ‘public or general interest’ test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages.
*347 We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.[21] [***] This approach provides a more equitable *348 boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. [***]
Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. *349 But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.
The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.
We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We *350 need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.
We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.
Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but at the time of publication he had never held any remunerative governmental position. Respondent admits this but argues that petitioner’s appearance at the coroner’s inquest rendered him a ‘de facto public official.’ Our cases recognized no such concept. Respondent’s suggestion would sweep all lawyers under the New York Times rule as officers of the court and distort the plain meaning of the ‘public official’ category beyond all recognition. We decline to follow it.
Respondent’s characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. [***]
Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame *352 or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen’s participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.
In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.
We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.
It is ordered. Reversed and remanded. *353
Mr. Chief Justice BURGER, dissenting.
The doctrines of the law of defamation have had a gradual evolution primarily in the state courts. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny this Court entered this field.
Agreement or disagreement with the law as it has evolved to this time does not alter the fact that it has been orderly development with a consistent basic rationale. In today’s opinion the Court abandons the traditional *355 thread so far as the ordinary private citizen is concerned and introduces the concept that the media will be liable for negligence in publishing defamatory statements with respect to such persons. Although I agree with much of what Mr. Justice WHITE states, I do not read the Court’s new doctrinal approach in quite the way he does. I am frank to say I do not know the parameters of a ‘negligence’ doctrine as applied to the news media. Conceivably this new doctrine could inhibit some editors, as the dissents of Mr. Justice DOUGLAS and Mr. Justice BRENNAN suggest. But I would prefer to allow this area of law to continue to evolve as it has up to now with respect to private citizens rather than embark on a new doctrinal theory which has no jurisprudential ancestry.
The petitioner here was performing a professional representative role as an advocate in the highest tradition of the law, and under that tradition the advocate is not to be invidiously identified with his client. The important public policy which underlies this tradition—the right to counsel—would be gravely jeopardized if every lawyer who takes an ‘unpopular’ case, civil or criminal, would automatically become fair game for irresponsible reporters and editors who might, for example, describe the lawyer as a ‘mob mouthpiece’ for representing a client with a serious prior criminal record, or as an ‘ambulance chaser’ for representing a claimant in a personal injury action.
I would reverse the judgment of the Court of Appeals and remand for reinstatement of the verdict of the jury and the entry of an appropriate judgment on that verdict.
Note 1. Articulate for yourself the separate standards now applicable for plaintiffs who are a) public officials, b) public figures and c) private individuals bound up with a matter of public concern. Note the corresponding rules regarding damages. Observe where the burdens fall more heavily in each of the cases (plaintiffs or defendants)? The higher the standard for defamation plaintiffs, the greater the protection for speech and the lower the corresponding protection for reputational interests. Where do you fall, intuitively, and normatively, in your views of these interests and how to protect them?
Note 2.Normative assessments of Gertz. The dissenting opinions took aim at negligence law, especially a very long and scathing dissent authored by Justice Brennan, who was concerned that “unpopular opinions” could be censored under cover of non-meritorious defamation claims. He wrote:
[T]he flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into “an instrument for the suppression of those ‘vehement, caustic, and sometimes unpleasantly sharp attacks,’ … which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.” [c] The Court does not discount altogether the danger that jurors will punish for the expression of unpopular opinions. This probability accounts for the Court’s limitation that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” [c] But plainly a jury’s latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court’s broad-ranging examples of “actual injury,” including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doing so. Finally, even a limitation of recovery to “actual injury”—however much it reduces the size or frequency of recoveries—will not provide the necessary elbowroom for First Amendment expression. “It is not simply the possibility of a judgment for damages that results in self-censorship. The very *368 possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to ‘steer far wider of the unlawful zone’ thereby keeping protected discussion from public cognizance. … Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be ‘actual’ or ‘punitive.'” [c]
Knowing what you now know about negligence law—on the one hand, its variability, fact-intensive, costly adjudication, and vulnerability to the jury, but on the other hand, its capacity for particularized rulings through by case-by-case tailoring, its capacity for change over time, and its reliance on the jury as an arbiter of the people—do you think negligence, strict liability, or some form of intentional tort is the best standard for private defamation cases?
Note 3. What do you think of how the court creates a combined standard using culpability and damages as levers? What are the costs and benefits of a hybrid approach like this one?
Note 4.“Negligence Plus.” After Sullivan, it was clear that strict liability could no longer be used as the standard for culpability in defamation cases, no matter who the plaintiff. But it was unclear precisely which plaintiffs would need to prove actual malice, in addition to public officials. A pair of cases before the Supreme Court extended the actual malice standard to public figures. Accordingly, the litigation battleground shifted to some extent to focus on the question of whether the plaintiff was or wasn’t a public figure. Gertz further clarified that for private figures involved in a matter of public concern, actual malice needed to apply. But it also ruled that presumed damages could no longer be permitted without a showing of actual malice. Effectively, this meant that the very lowest standard a state could require of a private plaintiff was proving negligence and special damages (regardless of the type of defamation alleged). In the alternative, a state could permit plaintiffs to presume damages in cases of defamation per se but only when also asserting actual malice (regardless of the status of the plaintiff). One way to capture this minimum standard following Sullivan is to frame it as “negligence plus.” At a minimum, plaintiffs must prove negligence. They may also need to prove special damages, depending on the kind of defamation they are alleging and the culpability they can prove.
Contemporary Defamation’s Elements
In consequence of wake of Sullivan and Gertz, the Restatement’s section on defamation reflects the addition of a new element: fault amounting to at least negligence on the part of the publisher. Notice also that the first element now suggests that the plaintiff in any defamation case needs to prove not just that a statement was defamatory but also that it was false. There remains a significant amount of variety among the states in how they articulate the pleading and substantive requirements of the tort. Some states do not list minimum fault as a requirement but it will be required regardless, at least in cases involving public officials, public figures, and private citizens with respect to matters of public concern, given the Supreme Court’s rulings. While not all states have adopted all parts of the Restatement § 558, some have done so and many states have adopted several aspects of it, so it provides a helpful point of reference.
Restatement Second of Torts § 558
§ 558. Elements Stated. To create liability for defamation there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher [with respect to the act of publication]; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication [emphasis added].
The next case provides a post-Gertz update that will cover long strides in defamation jurisprudence since Sullivan, contextualize the Gertz ruling, and illustrate how subsequent courts conduct the public/private figure analysis.
(663 F.3d 6)
This case raises issues of First Amendment law. At the center of the dispute is The Price of Sugar, a documentary film released in 2007 by film company Uncommon Productions, LLC, and its principal William M. Haney, III. The film depicts the treatment of Haitian laborers on sugarcane plantations in the Dominican Republic. It refers by name to brothers Felipe and Juan Vicini Lluberes, senior executives of a family conglomerate that owns and operates Dominican sugar plantations. The Vicinis contend that the film is defamatory and sued the filmmakers in federal court. The filmmakers moved for summary judgment, which the court granted. The Vicinis appeal the entry of summary judgment and the denial of a motion to compel production of discovery materials. For the reasons that follow, we affirm in part the entry of summary judgment but otherwise vacate the judgment, vacate the order denying the motion to compel, and *11 remand for further proceedings consistent with this opinion.
The controversy that spawned The Price of Sugar is well catalogued in the district court’s rescript, Lluberes v. Uncommon Prod’ns, LLC, 740 F.Supp.2d 207 (D.Mass.2010), and we will not rehash it. Suffice it to say that the treatment of Haitian laborers on Dominican sugarcane plantations and the conditions of company towns (or bateyes) where they live have received scrutiny from many sectors for many years.
In 2004, the filmmakers began shooting in the Dominican Republic. Much of the film follows Fr. Christopher Hartley, a Roman Catholic priest critical of the Vicinis, as he seeks to improve conditions for his parishioners in the bateyes. Those conditions, the film highlights, include shanty quarters, inadequate provisions, and little if any education for children. At several points, Fr. Hartley and the film’s narration reference Vicini-owned bateyes and identify Felipe and Juan as bearing some measure of responsibility for their disrepair. The film was released publicly on March 11, 2007, at a film festival in Texas. It has since received limited screenings in a handful of major cities and other venues.
Later in 2007, the Vicinis sued the filmmakers in federal district court in Massachusetts [where Haney resides] [fn]. Invoking the court’s diversity jurisdiction, the Vicinis alleged that the film was defamatory and identified fifty-three statements, although they later winnowed the number of allegedly defamatory statements down to seven. The filmmakers seasonably moved for summary judgment on these remaining statements; they argued that Felipe and Juan were “public figures” required to prove “actual malice” in accordance with New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny, and that the Vicinis could not so prove. The district court agreed and granted summary judgment in the filmmakers’ favor.
At the same time, the court denied a motion to compel that the Vicinis had initially filed during discovery and later renewed. The motion sought production of several categories of documents; those at issue here include communications with a third-party “script annotator” that the filmmakers had withheld on attorney-client privilege grounds. The judge did not explain his reasoning. This appeal followed.
We begin with the public-figure question, then turn to the discovery dispute and go no further.
A. Public–Figure Status
1. Defamation and the First Amendment
Before the Supreme Court’s decision in New York Times, defamation law was shaped by the states and strongly favored their interest in protecting an individual’s reputation. See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 586 (1st Cir.1980) (“Once a plaintiff put into evidence a reputation-harming statement and proof that defendant caused it to be disseminated, he enjoyed an irrebuttable presumption of injury and a rebuttable presumption of falsity.”) [c] *12 That balance shifted in 1964, when the Court considered whether “the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.” N.Y. Times, 376 U.S. at 256. Recognizing the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” the Court reasoned that even falsehoods “must be protected if the freedoms of expression are to have the breathing space that they need to survive,” [c]. On that basis, the Court held that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
The Court soon applied the New York Times rule to nonofficial “public figures.” Curtis Publ’gCo. v. Butts, 388 U.S. 130, 154–55 (1967). Under Curtis, a defamation plaintiff was to be considered a public figure when he “commanded sufficient continuing public interest and had sufficient access to the means of counter-argument to be able to expose through discussion the falsehood and fallacies of the defamatory statements.” Id. at 155 (internal quotation marks and citation omitted).
For a time, the New York Times rule was also extended to private individuals. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) (plurality opinion). According to the Rosenbloom plurality: “If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved. The public’s primary interest is in the event[.]” Id. at 43, 91 S.Ct. 1811. Rather, the linchpin became simply “whether the utterance involved concerns an issue of public or general concern.” Id. at 44; see also id. at 43–44 (“We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.”)
The plurality’s approach in Rosenbloom, however, was repudiated in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which established the current framework. Gertz sought an accommodation between the “need to avoid self-censorship by the news media,” id. at 341, on the one hand, and the “legitimate state interest underlying the law of libel,” id., on the other. It did so by linking “the constitutionally required showing in a defamation action to the plaintiff’s status.” Pendletonv. City of Haverhill, 156 F.3d 57, 67 (1st Cir.1998). Under this new model, public figures could succeed only on proof of actual malice as defined by New York Times. Gertz, 418 U.S. at 342. As for purely *13 private individuals, however, the states could “define for themselves the appropriate standard of liability” so long as minimal constitutional safeguards were met. Id. at 346–47. [***]
Gertz contemplated that public-figure status usually would arise in one of two ways, each with different repercussions. In one, “an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts”—the so-called general-purpose public figure. Id. at 351. But far more commonly (and directly relevant in this case) “an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues”—the so-called limited-purpose public figure. Id. That “limited range of issues” is identified “by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Gertz, 418 U.S. at 352.[22]
Guidance since Gertz has cautioned that a controversy must be more than a “cause célèbre,” Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976), or “a matter that attracts public attention,” Wolston v. Reader’sDigest Ass’n, 443 U.S. 157, 167 (1979). Rather, it must be shown that “ ‘persons actually were discussing some specific question … [and] a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution.’ ” Bruno & Stillman, 633 F.2d at 591 ([c]). Also, to avoid improper “bootstrapping” (a concept explored further below), the controversy must predate the alleged defamation [cc] (“[T]hose charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.”).
Once a controversy is isolated, the critical question then becomes whether the plaintiff has attempted to “influence the resolution” of that controversy. See, e.g., [***] Pendleton, 156 F.3d at 69 (holding that the defamation plaintiff was a public figure because he “voluntarily injected himself” into the controversy); Bruno & Stillman, 633 F.2d at 591 (requiring a “thrusting into the vortex”). If so, the plaintiff is a public figure and bears the heavy, and often insurmountable, burden of proving actual malice.
2. Felipe and Juan
The filmmakers contend that Felipe and Juan are limited-purpose public figures. The Vicinis vehemently dispute that label. Although they no longer contest the existence of a public controversy, the Vicinis argue that neither of them attempted to influence its resolution. Their argument has three constituent parts and spans both time and space. First, they say they did nothing before 2003 that, standing alone, could subject them to public-figure status. Second, any conduct after 2003 that might do so, we are told, is shielded by the anti-bootstrapping principle. The third is that, whatever their conduct in the Dominican Republic, it cannot make them public figures in the United States.
The status question is a legal one that we review de novo. [cc] We do so mindful that the inquiry is “inescapably fact-specific,” Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 204 (1st Cir.2006), and does not always lend itself to summary judgment [***] But here, as in Pendleton, the Vicinis do not argue that the district court based its status determination on disputed facts, only that the undisputed facts were insufficient to make them public figures for the reasons outlined above. [fn 5] We disagree *15 and conclude, as did the district court, that both Felipe and Juan are limited-purpose public figures. Because we ultimately reject their anti-bootstrapping argument [fn], we find it appropriate to begin by examining all relevant conduct up to the film’s release in March 2007.
Within that span, both Felipe and Juan came to occupy leadership positions within the family businesses. Felipe began working for the company in the mid-to-late 1990s as a member of the board. He gradually became part of a small group of family members that directed the agricultural enterprise; among other things, he oversaw sugar exports and sought to ensure favorable trade policies with the United States (the largest importer of Dominican sugar) and other countries. Later he was installed as president of Grupo Vicini, the entity that manages the family’s investments and coordinates initiatives on the bateyes. Juan joined the company in 2000 directly out of school in the United States. He, too, began working on the agricultural side of the business and ultimately assumed the number-two position in Grupo Vicini, under Felipe. [fn]
Juan’s role was perhaps less conspicuous, but it focused on the bateyes from the beginning. His homecoming in 2000 coincided with Fr. Hartley’s controversial benediction—delivered during a visit to Fr. Hartley’s parish by the Dominican president—that was critical of the batey system and of those, including the Vicini family, responsible for it. The strongly worded benediction caught the attention of the media, prompting the Vicinis to call a meeting with Fr. Hartley. As a result of that meeting, which both Juan and Felipe attended, Juan took on the role of humanitarian attaché to Fr. Hartley and his cause of improving conditions on the bateyes. Over the next couple of years Juan and Fr. Hartley met about a dozen more times, toured the bateyes together, and regularly spoke by telephone. [***] *16 For reasons that are not altogether clear, the Vicini–Hartley collaboration fizzled in 2003 or 2004. But rather than abandon the project, the Vicinis embraced it as their own. For instance, Juan reached out to nongovernmental organizations in order to combat HIV/AIDS in the bateyes. [***] And around the same time, both Juan and Felipe began courting the U.S. embassy in Santo Domingo. Juan personally escorted embassy officials on visits to the bateyes[***]. For his part, Felipe spoke with embassy officials by telephone, including the U.S. ambassador. This outreach touched off a relationship between the Vicinis and U.S. diplomats that Felipe described as “ongoing.”
Their efforts entered a new phase in 2005. After a U.S. newspaper published an exposé critical of the batey system, the Vicinis brought in Newlink Communications, a public-relations (PR) firm based in the United States. Newlink’s proposal, signed by Felipe in April 2005, provided for a massive PR campaign in the Dominican Republic that would reach as far as the United States. Among other things, the proposal identified the need for a “strategic communications program” to deal with the “negative perceptions against the company, reaching the United States media,” “[b]lock messages” critical of the Vicinis, and “[i]mprove the image and reputation of the company in the eyes of the public.” It spelled out country-specific strategies, focusing on the Dominican Republic and the United States, designed to implement those general goals. And it included media training for both Felipe and Juan, in Spanish and English, such as mock interviews about the bateyes and model answers emphasizing Vicini initiatives. All told, the Newlink deal cost the Vicinis about \$1.2 million. [***]
The PR campaign also targeted international media outlets and policymakers, particularly in the United States. [***] Felipe sent a deputy to a PBS interview with the stated goal of attempting “to ‘flip’ the story” in the family’s favor. According to Newlink records, the deputy “was prepared ahead of time for that interview with a Q & A that Newlink drew up to ensure that his answers were in keeping with the goal of maintaining the [company’s] image intact.” And in late 2006, Felipe, accompanied by several Newlink team members, led a U.S. congressional delegation on a tour of Vicini bateyes. During the tour a “fact sheet” was distributed that described Vicini initiatives in detail. CNN covered the delegation and interviewed Felipe; clips of that interview aired on Anderson Cooper 360° and were rebroadcast multiple times over the next two months on CNN and its affiliates. Felipe testified that his goal during these events was “to try to get our story out, to get our side out.”
Shortly before the release of The Price of Sugar (the end of our continuum), Felipe and Juan hosted an industry luncheon in the Dominican Republic. One purpose of the luncheon was to reveal more Vicini initiatives on the bateyes. During the luncheon, journalists from several Dominican newspapers were permitted to attend and ask questions. The resulting articles highlighted the batey initiatives discussed during the event and, as before, pictured and quoted Felipe and Juan.
All together, this conduct shows beyond hope of legitimate contradiction that Felipe and Juan are limited purpose public figures. Both leveraged their positions and contacts to influence a favorable outcome in the batey controversy. Both enjoyed access to the press and exploited it by orchestrating a PR blitz to garner public support and mute their critics. [fn] In doing so, both assumed roles of prominence for this limited purpose and the risk of closer public scrutiny that came with it.
3. Bootstrapping [***]
The Vicinis try to avoid this conclusion by asserting that most of the above conduct is shielded by the bootstrapping taboo. The argument is as follows. All of their “public activities” occurred after and in response to an article in a Spanish newspaper, El Mundo, published in January 2003. The article included purportedly defamatory statements by Fr. Hartley, the “original defamer,” that were repeated in the film four years later. Because the Vicinis would not have entered the public arena but for the El Mundo article, the filmmakers cannot invoke the Vicinis’ status as a defense to the same defamation in the film.
The argument is creative, but this case does not fit the bootstrapping mold. Bootstrapping in this context occurs when the defendant relies on his own defamatory publication to manufacture a public controversy involving the plaintiff, and thus “by [his] own conduct, create[s his] own defense by making the claimant a public figure.” Hutchinson, 443 U.S. at 135, 99 S.Ct. 2675. That is the logic behind the requirement that public-figure status—whether acquired for all purposes and in all contexts or derived from a particular controversy—predate the alleged defamation. [cc]see generally Smolla, Law of Defamation § 2:25 (recognizing “the media’s potential for ‘bootstrapping’ itself into the protection of the actual malice standard by pointing to its own coverage of the plaintiff as evidence that the plaintiff is a public figure,” and that in response “a number of courts have emphasized that the public controversy must ‘preexist’ the speech giving rise to the defamation suit”). [***]
4. Public Figures and Geography
The Vicinis’ final argument on the limited-purpose public figure issue is a geographic one. They say that none of the above conduct makes them public figures in the United States, where the alleged defamation was published. The argument rests on an analogy to general-purpose public figures, and those authorities that require such individuals to have achieved notoriety where they were defamed. The Vicinis reason that this geographic restriction must also be true for limited-purpose public figures, who are the more “protected” of the two.
The analogy is flawed. Gertz held that the plaintiff was not a public figure for all purposes because he had “no general fame or notoriety in the community” and was not generally known to “the local population.” 418 U.S. at 351–52. Based on that language, some courts—we have not addressed the question and we do not do so today—have extrapolated that a general-purpose public figure need not attain “nationwide fame,” only “notoriety where he was defamed[,] i.e., where the defamation was published.” [c] Arguably, this so-called community standard actually expands rather than restricts the applicability of the New York Times rule, at least for general-purpose public figures.
That debate, however, has no relevance here. Gertz defined a limited-purpose public figure not in terms of geography but in terms of the controversy that he has stepped into. See Gertz, 418 U.S. at 351 (defining a limited-purpose public figure as one who “voluntarily injects himself or is drawn into a particular controversy”); *21Tavoulareas, 817 F.2d at 772 (“[T]he scope of the controversy in which the plaintiff involves himself defines the scope of the public personality.”). That suggests to us that, if Gertz envisioned any limitation on public-figure status, it is a limitation inherent in the scope of the controversy itself. [***] [T]he batey controversy was not confined to the shores of the Dominican Republic. Rather, it resounded in the United States for obvious humanitarian reasons and a less-obvious geopolitical one: a long-standing import quota system under U.S. law that subsidizes Dominican sugar producers, including the Vicinis.[23] Indeed, one of Felipe’s core responsibilities was seeing to it that this quota system remained intact through lobbying and other efforts. Concerns that negative publicity about the bateyes might jeopardize the quota system prompted him and Juan, at least in part, to launch the PR blitz that reached U.S. media outlets and policymakers, as we have shown. We are satisfied that such conduct is enough to make the plaintiffs public figures in the United States for purposes of this lawsuit. [fn]
*22 B. Attorney–Client Privilege
[Editor’s note: In a separate motion, the lower court had protected various documents under the attorney-client privilege. These documents had been at issue when the filmmakers had sought “errors and omissions” insurance which is an ordinary part of the process. Without these, the court here holds it impossible to reach the factual questions necessary to determine actual malice.]
By safeguarding communications between attorney and client, the privilege encourages disclosures that facilitate the client’s compliance with law and better enable him to present legitimate arguments when litigation arises. [c] The privilege is not limitless, however, and “courts must take care to apply it only to the extent necessary to achieve its underlying *24 goals.” [c] In other words, “the attorney-client privilege must be narrowly construed because it comes with substantial costs and stands as an obstacle of sorts to the search for truth.” [c] [***] The contours of the privilege are reasonably well honed. It protects “only those communications that are confidential and are made for the purpose of seeking or receiving legal advice.” [***]
The doctrine construing the attorney-client privilege narrowly seems to favor production in this instance. That doctrine strikes us as particularly applicable in defamation cases, such as this one, involving public figures. Actual malice must be proven with “convincing clarity,” N.Y. Times, 376 U.S. at 285–86, and this same standard applies whether the matter is resolved on summary judgment or at trial, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 244 (1986). Mindful of this hefty burden, upholding the district court’s decision on this record to withhold the sought documents which seemingly bear directly on state of mind would be incompatible with the “search for truth.” Nixon, 418 U.S. at 710.
This conclusion prevents us from reaching the issue of actual malice. Whatever documents must be produced, the trial judge did not examine them when he granted summary judgment in favor of the filmmakers on that issue. And because the documents have not been submitted to us, we cannot determine whether summary judgment was warranted despite them. We are cognizant, nevertheless, that even should some documents or portions thereof be disclosed in the end, some of the district court’s rulings on the seven putative defamatory statements may still stand. And yet we deem it is unwise to embark on a piecemeal approach to these statements at this juncture. On remand, the actual malice issue will have to be readdressed should any documents be disclosed.
We recognize the possibility that some documents, or portions of some documents, may contain information that is privileged under the framework set forth above. Rather than risk disclosure of such information, the district court has the option within its discretion on remand to review these documents in camera, allow the filmmakers to withhold any documents covered by privilege, and redact prior to production any portions of admissible documents that it finds are privileged. The court also may need to consider on remand the Vicinis’ waiver argument pertaining to the sufficiency of the privilege log, and choose to entertain other legitimate arguments relative to disclosure, waiver and privilege which the parties seek to raise.
*27 [***] For these reasons, we affirm the limited purpose public figure status determination but otherwise vacate the dispositive judgment, vacate the denial of the motion to compel insofar as the [attorney-client privileged] documents are concerned, and remand for further proceedings consistent with this opinion. We take no position on the actual-malice issue. The parties shall bear their own costs.
Note 1. The case was brought in Massachusetts because Haney was reachable there. Why else do you imagine it might have been brought there given that Uncommon Productions is actually based in California?
Note 2. If you were to assess these facts intuitively—that is, setting aside the considerable knowledge of torts and civil procedure that you have now amassed—how would you describe what the Vicini brothers were trying to do? What would you want to happen, intuitively? Now consider this question descriptively, as a function of the tort doctrines you know. Do you arrive at the same result? How about normatively? Is this the sort of situation Justice Brennan was worrying about, in the excerpt from his dissent (which was provided supra at Note 2 following Gertz v. Welch)?
Note 3. Are there particular contexts in which humanitarian issues—perhaps related to human rights or social justice concerns—might prompt special protections for speech or warrant deliberate prioritization of speech over reputational interests? Is this already the practical effect of the actual malice requirement? Can you think of other ways it might be possible to ensure that defamation lawsuits don’t chill speech on issues of public concern with respect to humanitarian issues? If so, how would you define the threshold for “humanitarian issues” (or any related subset of issues you would wish to prioritize)?
1. Respondent did not consider the charge of expelling the students to be applicable to him, since ‘that responsibility rests with the State Department of Education.’
2. Approximately 394 copies of the edition of the Times containing the advertisement were circulated in Alabama. Of these, about 35 copies were distributed in Montgomery County. The total circulation of the Times for that day was approximately 650,000 copies.
3. See also Mill, On Liberty (Oxford: Blackwell, 1947), at 47: ‘* * * (T)o argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion * * * all this, even to the most aggravated degree, is so continually done in perfect good faith, by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent, that it is rarely possible, on adequate grounds, conscientiously to stamp the misrepresentation as morally culpable; and still less could law presume to interfere with this kind of controversial misconduct.’
4. The climate in which public officials operate, especially during a political campaign, has been described by one commentator in the following terms: ‘Charges of gross incompetence, disregard of the public interest, communist sympathies, and the like usually have filled the air; and hints of bribery, embezzlement, and other criminal conduct are not infrequent.’ Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875 (1949).
5. The Times states that four other libel suits based on the advertisement have been filed against it by others who have served as Montgomery City Commissioners and by the Governor of Alabama; that another \$500,000 verdict has been awarded in the only one of these cases that has yet gone to trial; and that the damages sought in the other three total \$2,000,000.
6. Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’ Mill, On Liberty (Oxford: Blackwell, 1947), at 15; see also Milton, Areopagitica, in Prose Works (Yale, 1959), Vol. II, at 561.
7. The privilege immunizing honest misstatements of fact is often referred to as a ‘conditional’ privilege to distinguish it from the ‘absolute’ privilege recognized in judicial, legislative, administrative and executive proceedings. See, e.g., Prosser, Torts (2d ed., 1955), s 95.
8. We have no occasion here to determine how far down into the lower ranks of government employees the ‘public official’ designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included. … Nor need we here determine the boundaries of the ‘official conduct’ concept. It is enough for the present case that respondent’s position as an elected city commissioner clearly made him a public official, and that the allegations in the advertisement concerned what was allegedly his official conduct as Commissioner in charge of the Police Department. As to the statements alleging the assaulting of Dr. King and the bombing of his home, it is immaterial that they might not be considered to involve respondent’s official conduct if he himself had been accused of perpetrating the assault and the bombing. Respondent does not claim that the statements charged him personally with these acts; his contention is that the advertisement connects him with them only in his official capacity as the Commissioner supervising the police, on the theory that the police might be equated with the ‘They’ who did the bombing and assaulting. Thus, if these allegations can be read as referring to respondent at all, they must be read as describing his performance of his official duties.
9. Johnson Publishing Co. v. Davis, 271 Ala. 474, 487 (1960). Thus, the trial judge here instructed the jury that ‘mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages in an action for libel.’ The court refused, however, to give the following instruction which had been requested by the Times:
‘I charge you * * * that punitive damages, as the name indicates, are designed to punish the defendant, the New York Times Company, a corporation, and the other defendants in this case, * * * and I further charge you that such punitive damages may be awarded only in the event that you, the jury, are convinced by a fair preponderance of the evidence that the defendant * * * was motivated by personal illwill [sic], that is actual intent to do the plaintiff harm, or that the defendant * * * was guilty of gross negligence and recklessness and not of just ordinary negligence or carelessness in publishing the matter complained of so as to indicate a wanton disregard of plaintiff’s rights.’
The trial court’s error in failing to require any finding of actual malice for an award of general damages makes it unnecessary for us to consider the sufficiency under the federal standard of the instructions regarding actual malice that were given as to punitive damages.
10. The Times has set forth in a booklet its ‘Advertising Acceptability Standards.’ Listed among the classes of advertising that the newspaper does not accept are advertisements that are ‘fraudulent or deceptive,’ that are ‘ambiguous in wording and * * * may mislead,’ and that contain ‘attacks of a personal character.’ In replying to respondent’s interrogatories before the trial, the Secretary of the Times stated that ‘as the advertisement made no attacks of a personal character upon any individual and otherwise met the advertising acceptability standards promulgated,’ it had been approved for publication.
11. Respondent’s own testimony was that ‘as Commissioner of Public Affairs it is part of my duty to supervise the Police Department and I certainly feel like it (a statement) is associated with me when it describes police activities.’ He thought that ‘by virtue of being Police Commissioner and Commissioner of Public Affairs,’ he was charged with ‘any activity on the part of the Police Department.’ 'When it describes police action, certainly I feel it reflects on me as an individual.’ He added that ‘It is my feeling that it reflects not only on me but on the other Commissioners and the community.’
12. Insofar as the proposition means only that the statements about police conduct libeled respondent by implicitly criticizing his ability to run the Police Department, recovery is also precluded in this case by the doctrine of fair comment. See American Law Institute, Restatement of Torts (1938), s 607. Since the Fourteenth Amendment requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expression of opinion based upon privileged, as well as true, statements of fact. Both defenses are of course defeasible if the public official proves actual malice, as was not done here.
13. 1 Tucker, Blackstone’s Commentaries (1803), 297 (editor’s appendix; cf. Brant, Seditious Libel: Myth and Reality, 39 N.Y.U.L. Rev. 1.
14. I fully agree with the Court that the attack upon the validity of the Sedition Act of 1798, 1 Stat. 596 ‘has carried the day in the court of history,’ ante, at p. 723, and that the Act would today be declared unconstitutional. It should be pointed out, however, that the Sedition Act proscribed writings which were ‘false, scandalous and malicious.’
15. The requirement of proving actual malice or reckless disregard may, in the mind of the jury, add little to the requirement of proving falsity, a requirement which the Court recognizes not to be an adequate safeguard.
16. It was not until Gitlow v. New York, 268 U.S. 652, decided in 1925, that it was intimated that the freedom of speech guaranteed by the First Amendment was applicable to the States by reason of the Fourteenth Amendment. Other intimations followed. See Whitney v. California, 274 U.S. 357; Fiske v. Kansas, 274 U.S. 380. In 1931 Chief Justice Hughes speaking for the Court in Stromberg v. California, 283 U.S. 359, 368, declared: ‘It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.’ Thus we deal with a constitutional principle enunciated less than four decades ago, and consider for the first time the application of that principle to issues arising in libel cases brought by state officials.
17. In most cases, as in the case at bar, there will be little difficulty in distinguishing defamatory speech relating to private conduct from that relating to official conduct. I recognize, of course, that there will be a gray area. The difficulties of applying a public-private standard are, however, certainly, of a different genre from those attending the differentiation between a malicious and nonmalicious state of mind. If the constitutional standard is to be shaped by a concept of malice, the speaker takes the risk not only that the jury will inaccurately determine his state of mind but also that the injury will fail properly to apply the constitutional standard set by the elusive concept of malice.
18. [***] [P]etitioner knew or should have known that the outcome of the trial might hinge on his ability to show by clear and convincing evidence that respondent acted with reckless disregard for the truth. And this question remained open throughout the trial. Although the court initially concluded that the applicability of the New York Times rule depended on petitioner’s status as a public figure, the court did not decide that petitioner was not a public figure until all the evidence had been presented. Thus petitioner had every opportunity, indeed incentive, to prove ‘reckless disregard’ if he could, and he in fact attempted to do so. The record supports the observation by the Court of Appeals that petitioner ‘did present evidence of malice (both the ‘constitutional’ and the ‘ill will’ type) to support his damage claim and no such evidence was excluded. …’
19. Applying settled Illinois law, the District Court in this case held that it is libel per se to label someone a Communist.
20. This appears to have been the law in Illinois at the time Gertz brought his libel suit.
21. Our caveat against strict liability is the prime target of Mr. Justice WHITE’S dissent. He would hold that a publisher or broadcaster may be required to prove the truth of a defamatory statement concerning a private individual and, failing such proof, that the publisher or broadcaster may be held liable for defamation even though he took every conceivable precaution to ensure the accuracy of the offending statement prior to its dissemination. Post, at 3031— 3033. In Mr. Justice WHITE’s view, one who publishes a statement that later turns out to be inaccurate can never be ‘without fault’ in any meaningful sense, for ‘(i)t is he who circulated a falsehood that he was not required to publish.’ Post, at 3033. [***] Mr. Justice WHITE asserts that our decision today ‘trivializes and denigrates the interest in reputation,’ [c], that it ‘scuttle(s) the libel laws of the States in . . . wholesale fashion’ and renders ordinary citizens ‘powerless to protect themselves.’ Post, at 3022. In light of the progressive extension of the knowing-or-reckless-falsity requirement [in this Court’s cases], one might have viewed today’s decision allowing recovery under any standard save strict liability as a more generous accommodation of the state interest in comprehensive reputational injury to private individuals than the law presently affords.
22. There is possibly a third category, hinted at in Gertz, but it is not implicated in this case. Pendleton, 156 F.3d at 67 n. 7 (“The Gertz Court mentioned a third category—a person who becomes a public figure ‘through no purposeful action of his own’—but commented that ‘the instances of truly involuntary public figures must be exceedingly rare.’ ” (quoting Gertz, 418 U.S. at 345)).
23. For a history of the subsidy, see for example Michael R. Hall, Sugar and Power in the Dominican Republic: Eisenhower, Kennedy, and the Trujillos (2000). For current efforts in Congress to undo the subsidy, see Stop Unfair Giveaways and Restrictions (SUGAR) Act, S. 25, 112th Cong. § 4 (as introduced and referred to S. Comm. on Agriculture, Nutrition, and Forestry, Jan. 25, 2011), and Sen Shaheen Wants to End the Sugar Subsidies (NHPR radio broadcast Mar. 2, 2011), http://www.nhpr.org/sen-shaheen-wants-end-sugar-subsidies. | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/07%3A_Defamation/7.02%3A_Constitutional_Constraints.txt |
The First Amendment provides important limits by requiring that the plaintiff prove a higher level of culpability in cases involving public officials, public figures and private individuals involved with matters of public concern. In addition, there are a number of defenses to defamation claims, and they fall into two main categories: absolute and qualified or conditional defenses.
Absolute defenses. These include consent, truth and absolute privileges that protect certain contexts. Consent is straightforward in that it is similar to the analysis in battery; if the plaintiff consented to the communication, there can be no liability for its having occurred. As demonstrated in Federal Credit v. Fuller and Sullivan v. N.Y. Times, supra, truth is a significant defense to defamation claims. Indeed, truth can trump even outright malice. See e.g. Restatement (First) of Torts § 582 (1938) (“The truth of a defamatory statement of fact is a complete defense to an action for defamation.” Comment a. Except as otherwise provided by statute, the truth of a defamatory statement of fact is a complete defense although it is made for no good purpose and is inspired by ill will toward the person about whom it is published and is made solely for the purpose of harming him.”) Some jurisdictions have modified this common law rule by statute. However, the default rule illustrates the strength of truth as a defense. Finally, absolute privileges cover communications in particular contexts and permit a broad range of statements so long as they are relevant to or made within the proper scope of the given context. For example, there is an absolute privilege extended to judicial and legislative proceedings, and even knowingly making false statements during deliberation or debate on the floor of the legislature would be protected from liability for defamation even if subject to other forms of sanction or penalty. Hutchinson v. Proxmire, 443 U.S. 111 (1979)). There is also an absolute privilege shielding communications between spouses.
Qualified privileges protect certain occasions for which the law has recognized a need or justification for communications. Several exist but the most common is likely the “common interest” (or mutual interest) privilege that provides a limited entitlement to share information.
Restatement (First) of Torts § 596 (1938)
An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.
The privilege is frequently used in employment contexts for hiring and promotion and the general rule is that belonging to the same organization (such as a religious, charitable, social or professional organization) gives rise to a privilege for communications among members or colleagues to discuss the qualifications and character of their officers and members. Partners, shareholders, owners of common property and other joint venturers are also recognized as having a common privilege, for similar reasons.
If a defendant proves the existence of a qualified privilege, the plaintiff may defeat the privilege by showing the defendant abused the privilege or acted with common law malice. Restatement (Second) of Torts, § 613(1)(h), p. 307.) Conditional privileges can also be defeated when parties exceed their scope, potentially by sharing irrelevant negative information or through excessive publication. Some states have also formalized qualified privileges for news reporting or other limited purposes.
Lastly, the statute of limitations in all states ranges from 1 to 3 years. The length may even vary by the type of defamation; in Arkansas, the limit is one year for slander (Ark. Code Ann. § 16-56-104) and three years for libel (Ark. Code Ann. § 16-56-105).
(2021 WL 233695)
[***][Wendy] Tuomela’s Complaint alleges that she was wrongfully terminated in April 2018 from her 20-year tenure of employment at the Grand Wailea Hotel. She claims she was falsely accused of theft, and was forced to pay the Hotel \$900 in cash, which apparently was part of the amount she was accused of stealing. The Complaint alleges that after being accused, she was threatened with incarceration by a security guard (Michael Palazzotto) and Defendant’s human resources representative (Carol Kawabata) if she did not pay (or return) the money. It alleges that on April 17, 2018, Kawabata entered into a contract with Plaintiff to keep the circumstances of her termination confidential. Instead, the Complaint alleges that Kawabata told a hotel restaurant manager, Justin Sugarman, that Plaintiff was fired for theft and misconduct, and Sugarman told other staff members. Since that time, Plaintiff was denied comparable employment for similar positions from other employers and was “essentially blackballed from any employment in Wailea[.]” She alleges that a “false police report surfaced when she was applying for a job which required a background check [and] [d]ue to the defamatory nature of the police report she did not get the position she was seeking.”
Plaintiff [***] alleges “defamation of character” based on two general theories. [fn] First, Tuomela contends that she was defamed when Kawabata told Sugarman “confidential information” that Tuomela was terminated for theft and misconduct, and then Sugarman told others. She alleges that her reputation was damaged as a result. Second, Count Three alleges:
On August 3rd, 2018, in a continuing search for comparable employment, Ms. Tuomela was confronted with a police report [***] that states … she is accused of theft. The false police report surfaced when she was applying for a job which required a background check. Due to the defamatory nature of the police report she did not get the position she was seeking. … She has not been able to gain employment equal to the position that she lost as a server at the Humu Room in the Grand Wailea Hotel. Waldorf’s Motion is directed only at the defamation allegations regarding the police report. [fn] That is, Waldorf does not seek, at least with this Motion, a ruling regarding the allegations about statements Kawabata made to Sugarman that were relayed to others. Rather, this Motion only argues that statements made to police complaining of a crime are not actionable as defamation, contending that such statements are absolutely privileged.
A. An Absolute Privilege is the Minority Rule
Waldorf cites several cases holding that an absolute privilege protects statements made to police, and thus encourages persons to report criminal activity to authorities without fear of retaliation. The interest is “encouraging the free and unhindered communications to law enforcement authorities necessary to facilitate the investigation and prosecution of crimes.” Ledvina v. Cerasini, 213 Ariz. 569 (Ariz. Ct. App. 2006); see also, e.g.,Eddington v. Torrez, 311 Mich. App. 198 (Mich. Ct. App. 2015) (“[P]ersons who make statements to the police when reporting crimes or assisting the police in investigating crimes enjoy a privilege in those statements against the police divulging them for any purpose other than law enforcement. Accordingly, those statements may not be used to sustain a defamation claim.”). In Hagberg v. California Federal Bank FSB, 32 Cal.4th 350 (Cal. 2004), for example, the California Supreme Court held that, under California Civil Code § 47(b),[1] statements made to law enforcement personnel reporting suspected criminal activity are “absolutely” privileged “and can be the basis for tort liability only if the plaintiff can establish the elements of the tort of malicious prosecution.” [cc] “[T]he absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to ‘assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’ ” Id. at 249, 81 P.3d at 245 ([c] (emphasis omitted)).[2]
*3 But Waldorf relies on a minority rule. Rather, as the Idaho Supreme Court recently reiterated, “the majority rule is that statements made to law enforcement enjoy [only] a qualified privilege from defamation actions, which can be lost through abuse, such as when statements are made with malice or in bad faith.” [c]. “[A] qualified privilege [strikes] the appropriate balance between protecting those who seek to report criminal conduct to law enforcement and the countervailing interest in remedying the ‘potentially disastrous consequences that may befall the victim of a false accusation of criminal wrongdoing.’ ” [c]
In analyzing case law from various jurisdictions, the Connecticut Supreme Court followed “a majority of states that have addressed this issue[,]” [c], and agreed with the Florida Supreme Court that “a qualified privilege is sufficiently protective of [those] wishing to report events concerning crime. [c] There is no benefit to society or the administration of justice in protecting those who make intentionally false and malicious defamatory statements to the police.” Id. (quoting Fridovich v. Fridovich, 598 So. 2d 65, 69 (Fla. 1992)). In turn, Fridovich broadly surveyed state case law and other authorities, 598 So. 2d at 67-68 & n.4, and followed “a majority of the other states [that] have held in this context, that defamatory statements voluntarily made by private individuals to the police … prior to the institution of criminal charges are presumptively qualifiedly privileged.” Id. at 69. Many of these opinions distinguish between statements made as part of existing judicial or quasi-judicial proceedings (such as trial testimony)—for which an absolute privilege from defamation exists—and statements to police before the initiation of proceedings—which are subject to a qualified privilege. [cc]
B. The Court Applies the Majority Rule—A Qualified Privilege
Under the Erie doctrine, the court applies substantive Hawaii law in the present case, which is based on diversity of citizenship. SeeErie R. Co. v. Tompkins, 304 U.S. 64 (1938). Hawaii has not adopted either the majority or minority rule as to the degree of privilege from defamation given to statements made to police before criminal proceedings are initiated.[3] Thus, absent certifying a question to the Hawaii Supreme Court, this “court, sitting in diversity, must use its best judgment to predict how the Hawaii Supreme Court would decide the issue.” [c] “In so doing, a federal court may be aided by looking to well-reasoned decisions from other jurisdictions.” [c] And—using its best judgment and analyzing those well-reasoned decisions—this court applies the majority rule here. That is, a qualified (not absolute) privilege applies under Hawaii law.
*4 The court begins with the proposition that, under Hawaii law, statements that “impute to a person the commission of a crime” are defamatory per se.[4] [cc] As such, Hawaii courts would likely conclude that “the law should provide a remedy” against “those who make intentionally false and malicious defamatory statements to the police.” Fridovich, 598 So. 2d at 69. Although the law should encourage reporting of criminal activity, “public policy is [not] violated by requiring that citizens who report criminal activities to the police do so in good faith.” Gallo, 935 A.2d at 114 (quoting Caldor, Inc. v. Bowden, 330 Md. 632 (Md. Ct. App. 1993)). “Those who maliciously volunteer false accusations of criminal activity to the police should not be granted absolute immunity. Although [courts] do not wish to discourage the reporting of criminal activity, [they] also do not wish to encourage harassment, or wasting of law enforcement resources, by investigations of false, maliciously made complaints[.]” Id. (quoting Bowden, 625 A.2d at 968).
Further, the Hawaii Supreme Court has not hesitated to eliminate absolute immunity in favor of a qualified privilege in tort situations against government officials. In Medeiros v. Kondo, 55 Haw. 499 (1974), for example, the Hawaii Supreme Court held that a nonjudicial government official has only a qualified privilege for acts done while exercising authority, and may be held liable where the official “is motivated by malice, and not by an otherwise proper purpose.” Id. at 503. In so doing, it overruled prior Hawaii law “[t]o the extent that absolute immunity from tort suit for nonjudicial officers may have been the law in Hawaii[.]” Id. at 500-01; see alsoRunnels v. Okamoto, 56 Haw. 1, 4 (1974) (explaining that “[i]n Kondo, we announced that the doctrine of ‘absolute immunity’ would no longer be permitted to shield a nonjudicial government officer for his tortious acts[,]” and applying Kondo’s qualified privilege standard to a defamation claim). The Hawaii Supreme Court later extended Kondo to acts of the Honolulu prosecuting attorney, again rejecting absolute immunity in favor of a qualified privilege. SeeOrso v. City & Cnty. of Honolulu, 56 Haw. 241, 247-48 (1975), overruled on other grounds byKahale v. City & Cnty. of Honolulu, 104 Haw. 341 (2004). These cases rejected absolute immunity because the Hawaii Supreme Court was “unwilling to deny plaintiffs a ‘mere inquiry into malice’ [given its] strong preference for allowing all litigants their day in court.” Kondo, 55 Haw. at 504 (quoting 2 F. Harper & F. James, The Law of Torts § 29.10 at 1645 (1956)). [fn]
*5 With that indication embedded in Hawaii case law, and considering the weight of case law from other jurisdictions, the court concludes that under Hawaii law an absolute privilege does not apply to complaints made to police. The court declines to apply the minority rule suggested by Waldorf that communications in a police report are absolutely privileged.
Given this ruling, the court will apply existing Hawaii law, which holds more generally that, for claims of defamation, a speaker is protected by a qualified privilege when he or she “reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty.” Russell, 53 Haw. at 460, 497 P.2d at 44.
[T]he qualified privilege is conditional and it must be exercised (1) in a reasonable manner and (2) for a proper purpose. The immunity is forfeited if the defendant steps outside the scope of or abuses the privilege. The qualified privilege may be abused by (1) excessive publication, (2) use of the occasion for an improper purpose, or (3) lack of belief or grounds for belief in the truth of what is said.
Kainz v. Lussier, 4 Haw. App. 400, 405 (Haw. Ct. App. 1983) (citations omitted). And the party claiming defamation has the burden of proving that a qualified privilege was abused. SeeTowse v. State, 64 Haw. 624, 632 (1982).
For the foregoing reasons, Defendant Waldorf’s Motion for Judgment on the Pleadings as to Count Three, alleging defamation of character, is DENIED. Count Three remains in full.
Note 1. Why do you think the court declined to adopt Waldorf-Astoria’s argument in favor of an absolute privilege, descriptively and normatively? What are situations in which an absolute privilege makes sense, in your view?
Note 2. For a privilege that’s considered “conditional” and “qualified”, what do you observe about its scope as defined in Russell: “a speaker is protected by a qualified privilege when he or she reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty”? What duties are included or excluded? What perspective is used and what is the effect of that choice?
Note 3. The socioeconomic disparity between the parties—one of whom appears pro se (that is, represents themselves in court)—is striking. Does the court adopt appropriate modes of dealing with it? Is defamation properly calibrated here to balance speech and reputational interests? Why or why not?
Statutory Defenses
In addition to privileges available at common law, significant statutory defenses exist that bar or limit defamation claims.
The first of these is a federal statute. Congress enacted the Communications Decency Act (“CDA”)—whose Section 230 has been in the news a great deal recently—to immunize internet service providers from claims for defamation under certain conditions. The immunity was broad and robust and has been attacked again and again in court with very few lapses or suggestions that it can be undone. In most cases, challenges to Section 230’s immunity have failed. (If you know of counter-examples, they may have to do with child pornography or sex trafficking; those are sometimes considered “sui generis” categories that require their own treatment given how seriously offensive they are and Congress codified certain exceptions at Section (230 (e).)
The next case provides an example of CDA Sec. 230 litigation. It illustrates how even in a very factually compelling context in which there were existing policy prerogatives and legislative protections against racially discriminatory practices in fair housing, the immunity was upheld.
(461 F. Supp.2d 681)
Plaintiff Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. (“CLC”) has filed suit under 42 U.S.C. § 3604(c) of the Fair Housing Act (“FHA”) seeking monetary, declaratory, and injunctive relief against Defendant “Craigslist, Inc.” (“Craigslist”). CLC alleges that such relief is warranted because Craigslist publishes notices, statements, or advertisements with respect to the sale or rental of dwellings that indicate (1) a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status, or national origin; and (2) an intention to make a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status, or national origin. Craigslist has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (“Rule 12(c)”), contending that Plaintiff’s claim is barred based on the immunity afforded to “providers … of interactive computer services” (“ICSs”) under 47 U.S.C. § 230 (“Section 230”).
For the reasons below, the Court grants Craigslist’s motion.
I. The Parties
Plaintiff CLC, a public interest consortium of forty-five law firms, is an Illinois non-profit organization with its principal place of business in Chicago, Illinois. CLC’s mission is to promote and protect civil rights, particularly the civil rights of the poor, ethnic minorities, and the disadvantaged. CLC strives to eliminate discriminatory housing practices by: (1) educating people about their rights under the fair housing and fair lending laws; (2) investigating complaints of fair housing discrimination; (3) providing referral information for non-discrimination housing matters; (4) advocating on a wide range of housing related issues, such as public housing, increased affordable housing, and fair and equal mortgage lending opportunities; and (5) providing free legal services to individuals and groups who wish to exercise their fair housing rights and secure equal housing opportunities. (Id.)
Defendant Craigslist is a Delaware corporation located in San Francisco, California that operates a website through “a small staff in a single office.” In a typical month, Craigslist posts more than 10 million items of “user-supplied information,” and user postings are increasing at a rate of approximately 100% per year.
[The granted permission to the National Fair Housing Alliance, as well as Amazon, AOL, Google, Yahoo! and eBay, among others, to submit amicus briefs.]
II. The Pleadings
Craigslist operates a website that allows third-party users to post and read notices for, among other things, housing sale or rental opportunities. The website, which is accessible at “chicago.craigslist.org” (among other web addresses), is titled “craigslist: chicago classifieds for jobs, apartments, personals, for sale, services, community: Non-commercial bulletin board for events, jobs, housing, personal ads and community discussion.” The website contains a link entitled “post to classifieds” that, if clicked, will display a webpage located at “post.craigslist.org/chi” and titled chicago craigslist >> create posting.” That webpage categorizes posts and advertisements and offers the following links: (1) “job,” (2) “gigs,” (3) “housing,” (4) “for sale/wanted,” (5) “resume,” (6) “services offered,” (7) “personal/romance,” (8) “community,” and (9) “event.” The webpage also contains additional links labeled log into your account ” and (Apply for Account).
When a user clicks on the website link “housing,” the website will display a page located at “post.craigslist.org/chi/H” that bears the title chicago craigslist > housing > create posting” and contains a line reading “Are you offering space/housing, or do you need space/housing?” On this webpage, directly under this quoted text, there are two links labeled “I am offering housing” and “I need housing” as well as two other links (at the upper right of the page) labeled “log into your account” and “(Apply for Account).”
[***] When home-seekers are interested in posted sale or rental housing opportunities, they obtain the necessary contact information from content published on Craigslist’s website.
CLC alleges that, through the above-described process, Craigslist publishes housing advertisements on its website that indicate a preference, limitation, or discrimination, or an intention to make a preference, limitation, or discrimination, on the basis of race, color, national origin, sex, religion and familial status. (See also id. ¶¶ 142–51 (alleging that CLC continuously monitors Craigslist’s website and that it has diverted substantial time and money away from its fair housing program to efforts directed in response to Craigslist’s publication of discriminatory housing advertisements).) Here is a sampling of the allegedly objectionable statements within rental postings on Craigslist’s website:
• “African Americans and Arabians tend to clash with me so that won’t work out” (Pl.’s Compl. at ¶ 17)
• “Neighborhood is predominantly Caucasian, Polish and Hispanic” (Id. at ¶ 18)
• “NO MINORITIES” (Id. at ¶ 19)
• “Non–Women of Color NEED NOT APPLY” (Id. at ¶ 21)
• “looking for gay latino” (Id. at ¶ 24) *686
• “This is not in a trendy neighborhood—very Latino” (Id. at ¶ 26)
• “This neighborhood is probably what you’ve heard … predominantly hispanic, but changing slowly” (Id. at ¶ 27)
• “All in a vibrant southwest Hispanic neighborhood offering great classical Mexican culture, restaurants and businesses” (Id. at ¶ 28)
• “Requirements: Clean Godly Christian Male.” (Id. at ¶ 30)
• “Owner lives on the first floor, so tenant must be respectful of the situation, preferably not 2 guys in their mid twenties, who throw parties all the time” (Id. at ¶ 33)
• “LADIES PLEASE RENT FROM ME” (Id. at ¶ 34)
• “This is what I am looking for … and the more a candidate has, the less I will ask in rent: Female Christian” (Id. at ¶ 37)
• “Christian single straight female needed.” (Id. at ¶ 39)
• “Only Muslims apply” (Id. at ¶ 40)
• “near St Gertrudes [sic] church” (Id. at ¶ 41)
• “Walk to shopping, restaurants, coffee shops, synagogue.” (Id. at ¶ 43)
• “very quiet street opposite church” (Id. at ¶ 48)
• “Catholic Church, and beautiful Buddhist Temple within one block” (Id. at ¶ 54)
• “Apt. too small for families with small children” (Id. at ¶ 60)
• “Perfect for 4 Med students” (Id. at ¶ 61)
• “Perfect place for city single” (Id. at ¶ 63)
• “Absolutely ideal for a young professional and socialite!” (Id. at ¶ 67)
• “Perfect for Young Family or 2 Broke ASS Roommates” (Id. at ¶ 79)
• “Young cool landlord who wants one nice quiet person to rent her basement” (Id. at ¶ 81)
• “Non-smoking adults preferred” (Id. at ¶ 82)
CLC alleges that these and similar statements discourage or prohibit home-seekers from pursuing housing and thus decrease the number of units available to them. (Id. at ¶¶ 16, 20, 22, 29, 35, 59.)
I. The Statutes at Issue
A. The Fair Housing Act
To redress this alleged injury, CLC here seeks a declaratory judgment that Craigslist violated 42 U.S.C. § 3604(c) (“Section 3604”) of the FHA, …which “prohibits racial discrimination of all kinds in housing.” Tyus v. Urban Search Mgmt., 102 F.3d 256, 260 (7th Cir.1996). Section 3604(c), in particular, makes it unlawful:
To make, print, or publish, or cause to be made, printed, or published any notice, *687 statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
42 U.S.C. § 3604(c). As the NFHA points out in its amicus submission, courts have held that Section 3604(c) applies to a variety of media, including newspapers, brochures, multiple listing services, telecommunication devices for the deaf, a housing complex’s “pool and building rules,” as well as “any other publishing medium.” [cc] Along the same lines, the United States Department of Housing and Urban Development (“HUD”) has issued a regulation … construing Section 3604(c) as applying to “[w]ritten notices and statements includ[ing] any applications, flyers, brochures, deeds, signs, banners, posters, billboards or any documents used with respect to the sale or rental of a dwelling.” 24 C.F.R. § 100.75.
B. The Communications Decency Act
Notwithstanding the FHA’s broad scope, Craigslist argues that Plaintiff’s Complaint fails on the pleadings because of the immunity afforded under Section 230(c)(1) of the CDA. Section 230(c) consists of two operative provisions, each under the subheading “Protection for Blocking and Screening of Offensive Materials:”[5]
*688 (c) Protection for “good samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). 47 U.S.C. § 230(c). …
[Note: “Interactive computer service” means: “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server …”. “Information content provider” means “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. §§ 230(f)(2), (f)(3).]
These provisions preempt contrary state law, but do not “prevent any State from enforcing any State law that is consistent with this section.” 47 U.S.C. § 230(e)(3). In addition, Section 230 exempts certain areas of law from its scope, but the FHA is not among them. See 47 U.S.C. §§ 230(e)(1), (2), (4) (excluding intellectual property laws, criminal laws, and the Electronic Privacy Act).
Near-unanimous case law holds that Section 230(c) affords immunity to ICSs against suits that seek to hold an ICS liable for third-party content. … Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. * * *
Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.
Congress’ purpose in providing the § 230 immunity was thus evident. Interactive computer services have millions of users. The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect. [Citations omitted] Virtually all subsequent courts that have construed Section 230(c)(1) have followed [early precedents upholding immunity] … and several have concluded that *690 Section 230(c)(1) offers ICSs a “broad,” “robust” immunity [citations omitted].
*692 III. The Scope of Section 230(c)(1)
The parties dispute the operative effect of Section 230(c)(1). CLC argues that…, Section 230(c)(1) must be read only as a definitional clause that provides no immunity on its own, but rather determines the subset of ICSs that fall within the grant of immunity afforded under Section 230(c)(2). (R. 16–1, Pl.’s Resp. at 8 (“[u]nder [a] straight-forward reading of Section 230(c)(1), an interactive computer service provider would, if it created the offensive material, be subject to treatment as a speaker or publisher and thus understandably would ‘lose the benefit’ of civil liability protection under (c)(2)—because as the author of the content it could not credibly maintain that good faith efforts were made to prevent the offensive disclosure. But where an interactive computer service does not create the offensive information, it is merely the provider or user, and will be entitled to civil liability protection only for its efforts to block and screen.”).)
Craigslist, in contrast, argues that Section 230(c)(1) grants immunity as to all causes of action against an ICS (so long as the ICS is not the originator of the content at issue). (R. 15–1, Def.’s Motion at 2 (“As a matter of clear federal law, an entity such as [C]raigslist may not be held liable for unlawful content that, as here, originates not from [C]raigslist but from users of the [C]raigslist website. [C]raigslist falls squarely within the protection afforded by [Section 230], which broadly immunizes interactive computer service providers from liability for third-party content.”).) The Court rejects both positions. …
[T]he Court concludes that Section 230(c)(1) does not bar “any cause of action,” as … Craigslist contends, but instead is more limited—it bars those causes of action that would require treating an ICS as a publisher of third-party content.
… Section 230(c)(1) provides that *696 “[n]o provider … of an interactive computer service shall be treated as a publisher”—a term the CDA does not define— “for information provided by another information content provider.” While this language does not grant immunity per se, cf. 47 U.S.C. § 230(c)(2), it does prohibit treatment as a publisher, which, quite plainly, would bar any cause of action that requires, to establish liability, a finding that an ICS published third-party content. As the Seventh Circuit already has suggested, “defamation law would be a good example of such liability,” … so too, as it turns out, are causes of action under Section 3604(c). 42 U.S.C. § 3604(c) (rendering it illegal “[t]o make, print, or publish, or cause to be made, printed, or published any [discriminatory] notice, statement, or advertisement …” (emphasis added)).
This plain meaning of the statutory text is not at odds with the intentions of Section 230(c)(1)’s drafters. Indeed, Congress did not intend to grant a vast, limitless immunity, but rather enacted Section 230(c) specifically to overrule the court decision in Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995). See, e.g., H.R. Conf. Rep. No. 104–458, at 194 (1996) (“One of the specific purposes of this section is to overrule Stratton Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that [Stratton Oakmont] create[s] serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.”). In that case, the court held that an internet access provider who used filtering technology could be held liable for libelous third-party statements posted on its bulletin board service. Stratton Oakmont, 1995 WL 323710 at *2–4 (determining that, under defamation law, Prodigy, an internet access provider, was a publisher rather than a distributor because “[b]y actively utilizing technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and ‘bad taste’… PRODIGY is clearly making decisions as to content … and such decisions constitute editorial control”).
Thus, when Congress enacted Section 230(c), it did so to address the problem of holding liable for defamation ICSs that reviewed third-party content (as in Stratton Oakmont,) while leaving free from liability ICSs that did not review content. Even though Congress specifically aimed to overrule Stratton Oakmont, a defamation case, it did so by using language—a prohibition against “treat[ing] [an ICS] as a publisher”—that plainly bars any claim *697 that requires “publishing” as an element. … In any event, regardless of whether Congress chose Section 230(c)(1)’s language with the FHA in mind, what is important here is that the plain meaning of the statute is not at odds with Congress’ intent. The Court’s reading is at least as harmonious with congressional intent as either of the parties’ proposed alternatives—Congress enacted Section 230(c)(1) to overrule Stratton Oakmont, not to create limitless immunity (as Craigslist suggests) or no immunity at all (as CLC suggests).
Other rules of statutory construction further support the Court’s reading. Limiting the immunity afforded under Section 230 to those claims that require “publishing” as an essential element—as opposed to any cause of action—gives effect to the different language in Sections 230(c)(1) and (c)(2).[6] Moreover, the Court’s reading does not clash with the statutory captions. See United States v. Tedder, 403 F.3d 836, 844 (7th Cir.2005) (statutory “[t]itles, headings, and captions may help disambiguate adopted texts, but they are not themselves rules of law”). Indeed, as the Seventh Circuit has observed, it seems rather unlikely that, in enacting the CDA and in trying to protect “Good Samaritans” … filtering offensive conduct, Congress would have intended a broad grant of immunity for ICSs that do not screen any third-party content whatsoever. … And because it is something less than an absolute grant of immunity, state legislatures may be able to enact, consistent with Section 230, initiatives[7] that induce or require online service providers to protect the interests of third parties … For all these reasons, the Court here holds that, at a minimum, Section 230(c)(1) bars claims, like the CLC’s claim, that requires publishing as a critical element.[8]
Applying Section 230(c)(1) here, CLC’s claim fails on the pleadings. First, Craigslist is a “provider … of an interactive computer service” because, as alleged in the Complaint, Craigslist operates a website that multiple users have accessed to create allegedly discriminatory housing notices. See also 47 U.S.C. § 230(f)(2) (defining “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server”). These notices, in turn, are “information” that originates, not from Craigslist, but from “another information content provider,” namely the users of Craigslist’s website. 47 U.S.C. § 230(f)(3) (defining “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”). As a “provider … of an interactive computer service” that serves as a conduit for “information provided by another information content provider,” Craigslist “shall not be treated as a publisher.” 47 U.S.C. § 230(c)(1). Because to hold Craigslist liable under Section 3604(c) would be to treat Craigslist as if it were the publisher of third-party content, the plain language of Section 230(c)(1) forecloses CLC’s cause of action.[9]See also 47 U.S.C. § 230(e) (excluding *699 certain laws from Section 230’s scope, but not excluding the FHA) …
CONCLUSION
For these reasons, the Court grants Craigslist’s Rule 12(c) motion for judgment on the pleadings.
Note 1. What is the compelling interest that Section 230 is addressing? How is it connected to the concerns of Sullivan and its progeny? What justifications do you see for resolving concerns through creating federal legislation granting immunity, versus creating standards that require case-by-case adjudication? And does the provision of immunity matter if it results in litigation anyway?
Note 2. Do you agree with the court’s ruling, normatively? Should Section 230 confer as much power (or latitude) as it does? What are the alternatives?
Note 3. The opinion in CLC v. Craigslist makes arguments rooted in legislative intent, legal policy, and statutory construction. The court cites to Webster’s Dictionary, for instance, twice—once in a section on the meaning of the word “publisher,” which has been edited out of your version, and a second time in its final footnote on the definition of the word “print.” In so doing, the court displays textualist tendencies and inclines towards formalism. In other instances, such as when it considers the effect on various stakeholders (Good Samaritan content filterers, among others), it inclines towards functionalism. Does this case remind you of Justice Traynor’s approach to products liability law, or of other instances of judicial reasoning?
Check Your Understanding (7-2)
Question 1. Complete the sentence: Actual malice…
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 2. A grocery store owner, G, is worried about protests and social unrest, which have cost him extensively disrupted business in the recent past. He takes a strong stand by refusing to allow employees to wear buttons or pins (“flair”) in support of any political movements. He fires an employee for wearing a “BLM” pin and suspends another for wearing a “Vote like your life depends on it” pin. G’s reasoning is that the first was expressly political, in violation of his new policy, whereas the second was somewhat political, and while it also seemed possibly inconsistent with his policy, it was harder to punish someone for calling for voting, if they were not calling for voting for a particular party or person, or expressing support for any particular movement.
G gets attacked on Twitter for supposedly censoring his employees, creating a hostile environment, and discouraging voting, especially among his employees of color. Several of the Tweets are partially or wholly untrue and all are negative. One Tweet accuses him of being a modern-day colonialist extracting labor from people he can exploit without recognizing their rights to participate in public discourse. G is especially upset by this Tweet. As the child of immigrants himself, he is familiar with the sense of being exploited and undervalued. He feels wrongly accused because his decisions around whether pins should be worn at work do not reflect his views about justice, but he also can’t afford to be caught in the middle of a public debate. He is trying to make rent on an expensive location in Seattle, and he needs to conduct sufficient business to do so. As he sees that his business starts suffering sharply following the Tweets, he tries to Tweet that the truth is more complicated. He offers his own version of what happened, or he tries to (in 140 characters or fewer). His account is shouted down or ignored on Twitter. Feeling he has no other option to protect his livelihood, he decides to sue the author of the Tweet for defamation.
Which of the following, if true, would be most likely to result in G’s having to prove actual malice by the author of the Tweet?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Question 3. In addition to the facts from the prior question, G now receives this note on the desk in his office at work:
“Why do big businesses try to keep people down, cheat the tax code and exploit loopholes?
You cheat the system! You use your powers for ill instead of good, trying to silence and oppress essential workers!
No BLM? = no Bottom Line Money for you!”
He finds the messages contained in the note to be objectionable. Without more information, which of the answer choices below is likely to pose the greatest obstacle to G to if he sues on the basis of the allegedly defamatory statement below?
The original version of this chapter contained H5P content. You may want to remove or replace this element.
In addition to the federal limits the CDA places on defamation lawsuits, a number of states have attempted further to limit liability for defamation. Many states have passed legislation that creates immunity from defamation suits in cases in which the claims appear to be motivated by a desire to limit or repress speech about an important public matter. Known as “Anti-SLAPP” statutes, they seek to prevent litigation that appears to be nothing more than “Strategic Litigation Against Public Participation.” These statutes are important to know of, even though they are not applicable in all states. In a number of states, the Anti-SLAPP statute has faced constitutional challenges in court and some have been struck down in whole or in part. The next case features a recent dispute in which Florida’s Anti-SLAPP statute was at issue.
(477 F. Supp.3d 1310)
Plaintiff Dan Bongino is a public figure. A former Secret Service member, Mr. Bongino describes himself as “an outspoken supporter of President Donald Trump. He hosts a podcast, appears on Fox News, writes books, and has more than 1,500,000 followers on social media. Until 2018, he hosted a show on NRATV, the National Rifle Association’s online video channel.
Upon learning that Bongino’s show would no longer air, Defendant’s reporter texted him and asked, “Heard you didn’t renew with NRA TV?” Bongino did not respond. Four days later, the reporter texted again, “Just circling back on this. Probably publishing something today.” Still, no response. Defendant then published an article titled, “Dan Bongino out at NRATV—BONGI-NO-MORE.” (Lachlan Markay, Dan Bongino Out at NRATV, The Daily Beast, https://www.thedailybeast.com/source...o-out-at-nratv (last updated Dec. 11, 2018 2:11 PM)). The article’s subheading reads, “Trump loves the guy. But the gun rights group is downsizing its media operation and his show appears to be a casualty of those plans.” The first sentence continues, “The National Rifle Association’s media arm has dropped pro-Trump firebrand Dan Bongino….”. The article also notes that neither Bongino nor the NRA responded *1315 to Defendant’s requests for comments at first.
After publication, however, Bongino and NRATV responded to the article publicly. The next day, Defendant revised the article to include their reactions. The article now reads, “[Bongino] suggested that the decision not to renew the show was his, not the network’s” and “NRATV released a statement saying the network ‘made every attempt to retain [Bongino] in 2019’ but did not elaborate on the negotiations.”
That article is the basis for this suit. [***] Bongino claims the article conveys that NRATV fired him for cause; in truth he decided not to renew his contract, he says. On that basis, he argues the article “imputes” to him an “unfitness to perform the duties” of his job, and therefore constitutes libel.
Defendant now moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). [***] Defendant seeks to recover attorneys’ fees and costs under Florida’s anti-SLAPP statute, which the Florida legislature enacted to prohibit lawsuits that “are inconsistent with the right of persons to exercise … free speech in connection with public issues.” See Fla. Stat. § 768.295(1). The Court addresses these arguments in turn.[10] [***]
Plaintiff emphasizes that the “gist” of Defendant’s article implies to a reasonable reader that Plaintiff was fired for cause. Specifically, Plaintiff objects to the article’s statement that, “[t]he National Rifle Association’s media arm has dropped … Dan Bongino from its lineup of conservative commentators,” because he, not NRATV, decided to end the employment relationship. Plaintiff claims this misrepresentation imputes to him an “unfitness to perform the duties” of his job as a political commentator and radio host. For those reasons, he charges Defendant with defamation and defamation by implication. The Court addresses each claim in turn.
a) Defamation
[***] Whether a statement is susceptible to defamatory interpretation is a question of law left to the Court. [c] This inquiry turns on the “gist” of the alleged defamatory statement and the context in which that statement was made. [***] But when a communication “could not possibly have a defamatory or harmful effect, the court is justified in dismissing the complaint for failure to state a cause of action.” Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1306 (11th Cir. 2001) (citation omitted).
As an initial matter, at least one Florida court has held “the statement that a person was ‘fired’ from his employment, without more, is not defamatory.” Burnham v. Palm Beach Newspapers, Inc., 21 Med. L. Rptr. 1914 (Fla. 15th Cir. Ct. June 25, 1993). The state court held that an employer’s ability to terminate an employee is “inherent in the employment relationship” and the “exercise of that right does not necessarily impute wrongdoing to the employee.” Id. [c]
Indeed, Defendant cites to a litany of authority—albeit from non-binding jurisdictions—agreeing with the premise that “[t]he mere statement that someone has been terminated from employment is not in and of itself defamatory,” unless “the publication contains an insinuation that the discharge was for some misconduct.” [c]; see also, e.g., Klein v. Victor, 903 F. Supp. 1327, 1335–36 (E.D. Mo. 1995) (“Even assuming that the statement is false, and that plaintiff was not actually terminated, that statement does not necessarily impute a want of knowledge, skill, capacity or fitness to perform, nor does it impute fraud, want of integrity or misconduct …”); Jack’s Cookie Co. v. Brooks, 227 F.2d 935, 937 (4th Cir. 1955) (letter stating that plaintiff was “no longer the sales representative of Jack’s Cookie Company” and that this was “best for the company, its distributors, representatives and customers” was not defamatory as a matter of law because it “could not fairly be interpreted as charging [plaintiff] either with incompetence or dishonesty”).
Seeming to acknowledge that, without more, the mere statement that an individual was terminated does not constitute defamation, Plaintiff makes much ado about the article’s apparent insinuation that Plaintiff was not only fired but fired “for cause.” (See Pl.’s Resp. at 8–9 (citing caselaw specific to statements that individual was fired for cause or other misconduct)). A plain reading of the article, however, renders Plaintiff’s authority inapposite.
Here, even a cursory review reveals that nowhere in the article does it state that Plaintiff was fired—much less that he was fired for cause. The article merely states that NRATV “dropped” Plaintiff from its lineup of conservative commentators. And as Plaintiff concedes, this is in fact true. See Masson v.New Yorker Mag., Inc., 501 U.S. 496, 516 (1991) (explaining that even a flawed assertion of fact is not actionable as long as it is “substantial[ly] tru[e],” because the common law of libel “overlooks minor inaccuracies”). Indeed, the article’s subheading explains that NRATV was “downsizing” and Plaintiff’s show was “a casualty of those plans.” The article even reflects that NRATV made “every effort to retain [Bongino].” Id.[11] Such reporting is a far cry *1319 from stating that Plaintiff was fired for anything other than corporate downsizing.
[***] In short, even if the Court were to agree with Plaintiff that the “gist” of the article states that he was fired, the Court agrees with the reasoning set forth in the foregoing authority that the mere statement that an individual was terminated, without an insinuation of misconduct, does not constitute defamation. Because no reasonable interpretation of the article could be construed to suggest that Plaintiff was “dropped” for any reason other than fiscal decision-making, Plaintiff fails to establish that the article amounts to defamation.
b) Defamation by Implication
Plaintiff’s alternative claim for defamation by implication fails for the same reasons. Defamation by implication occurs when “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them,” or when the defendant “creates a defamatory implication by omitting facts.” [c] In this sense, defamation by implication imposes “liability upon the defendant who has the details right but the ‘gist’ wrong.” [c] That said, “[a]ll of the protections of defamation law that are afforded to the media and private defendants” also apply “to the tort of defamation by implication.” [c] This includes true statements and statements of pure opinions, which are protected by the First Amendment. [c] (“Under Florida law, a defendant publishes ‘pure opinion’ when the defendant makes a comment or opinion based on facts which are set forth in the publication….”).
In support of his defamation by implication allegation, Plaintiff claims the article implies that NRATV dropped him because of his “quick temper,” “brash style,” and because he was an “outspoken defender of President Trump.” But the article does not juxtapose those snippets to imply they are *1320 the reason that NRATV dropped Bongino. Nevertheless, such statements are, at the very least, protected statements of pure opinion.
For starters, the article states, “Bongino is known as an outspoken defender of President Trump, and recently released a book alleging ‘an attempt to sabotage’ the president….” The Complaint also describes Plaintiff as “an outspoken supporter of President Donald Trump. In 2018, Plaintiff published … Spygate: The Attempted Sabotage of Donald J. Trump.” Consequentially, the statement is true and thus privileged by the First Amendment. [c] Even still, the article does not juxtapose this soundbite with Plaintiff’s departure from NRATV. In fact, the article suggests NRATV embraced the “style of commentary that dovetails with contemporary conservative rhetoric,” thereby suggesting Plaintiff’s support for Trump was valuable to the station.
Next is the article’s reference to Plaintiff’s “quick temper,” and “brash style.” Those comments both opine on a “2016 interview with Politico reporter Marc Caputo, which ended with Bongino screaming obscenities at the journalist before hanging up.” These comments, however unflattering, are “pure opinion” and thus protected by the First Amendment. [cc] (explaining that statements of opinion cannot support claim for defamation by implication).
In sum, dismissal is proper because “no construction” of the article will support Plaintiff’s defamation charge. [c] And notably, the Eleventh Circuit acknowledges a “powerful interest in ensuring that free speech is not unduly burdened by the necessity of defending against expensive yet groundless litigation.” Michel, 816 F.3d at 702. [***]
C. Florida’s Anti-SLAPP statute
Florida’s anti-SLAPP statute prohibits a person from filing a suit that is (a) “without merit” and (b) “primarily” because the person against whom the suit was filed “exercised the constitutional right of free speech in connection with a public issue….” Fla. Stat. § 768.295(3). The Florida legislature enacted the statute to deter such suits, finding they are “inconsistent” with the constitutional right of free speech—the preservation of which is a “fundamental state policy[.]” Id. § 768.295(1). Presumably for that reason, the statute awards a defendant fees and costs if a plaintiff files a forbidden suit. Id. § 768.295(4).
*1322 Defendant contends this statute entitles it to recover its fees and costs because Plaintiff filed this lawsuit (a) “without merit” and (b) because Defendant “exercised the constitutional right of free speech in connection with a public issue.” Plaintiff responds by arguing that his suit did not violate the statute because Defendant did not “exercise the constitutional right to free speech on any issue” and contending that this statute does not apply in a federal court anyway.
1. Whether Plaintiff’s suit violated Florida’s anti-SLAPP statute
Florida’s anti-SLAPP statute prohibits a person from filing a cause of action that is (a) “without merit” and (b) “primarily” because the person against whom the suit was filed exercised the constitutional right of free speech in connection with a public issue. Fla. Stat. § 768.295(3). As used in that provision, “free speech in connection with a public issue” includes any written statement protected under applicable law and made in connection with a news report. Fla. Stat. § 768.295(2)(a).
The Eleventh Circuit recently affirmed an order awarding fees and costs under this statute in a case akin, in both posture and substance, to this one. SeeParekh v. CBS, 820 Fed.Appx. 827 (11th Cir. 2020). The media defendant in Parekh filed one motion to dismiss the plaintiff’s defamation claim and to recover fees and costs under Florida’s anti-SLAPP statute. Id. at 832. The Eleventh Circuit affirmed the complaint’s dismissal because the disputed statement, even if false, “[was] not actionable because it [was] not defamatory.” Id. at 834. For that reason, the suit was filed “without merit.” Id. at 835–36. The suit also “arose out of the defendants’ protected First Amendment activity—publishing a news report on a matter of public concern.” Id. The Eleventh Circuit thus concluded that the statute’s plain language supported the district court’s decision to grant fees and costs. Id.
Because Plaintiff’s suit fails to state a claim for defamation, it was without merit under Florida Statute § 768.295(3). And because Plaintiff’s suit “arose out of” Defendant’s news report, the second element—free speech in connection with a public issue—is also satisfied. See Fla. Stat. § 768.295(2)(a); Parekh, 820 Fed.Appx. at 831–32. The statute therefore entitles Defendant to recoup reasonable attorneys’ fees and costs.
2. Whether Florida’s anti-SLAPP statute applies in Federal Court
The Parekh court declined to address whether Florida’s anti-SLAPP statute applies in federal court because the appellant raised the argument for the first time on appeal. Parekh, 820 Fed.Appx. at 836. Plaintiff, however, raises the argument here. That brings the Court to the second question regarding Florida’s anti-SLAPP statute: whether its fee-shifting provision applies in a federal court exercising diversity jurisdiction. As far as the Court is aware, the Eleventh Circuit has not addressed this question. So, this is a matter of first impression.
In such a case, a federal court will not apply a state statute that “answers the same question” as a Federal Rule of Civil Procedure. SeeCarbone v. Cable News Network, 910 F.3d 1345, 1349 (11th Cir. 2018) (addressing whether Georgia’s anti-SLAPP statute applies in federal court) (quotation and citation omitted). The Eleventh, Fifth, D.C., and now Second Circuits agree: certain states’ iterations of the anti-SLAPP statute “answer the same question” as Federal Rules of Civil Procedure 8, 12, and 56. SeeCarbone, 910 F.3d at 1357 (11th Cir. 2018) (Georgia); *1323La Liberte v. Reid, 966 F.3d 79, 85–86 (2d Cir. 2020) (California); Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019) (Texas); Abbas v. Foreign Pol’y Grp., LLC., 783 F.3d 1328, 1334 (D.C. Cir. 2015) (D.C.).
Those statutes conflict with the Federal Rules of Civil Procedure because they raise the bar for a plaintiff to overcome a pretrial dismissal motion. SeeCarbone, 910 F.3d at 1350, 1356 (addressing Georgia’s anti-SLAPP statute, which requires the “plaintiff to establish ‘a probability’ that he ‘will prevail on the claim’ asserted in the complaint”); La Liberte, 966 F.3d at 87 (addressing California’s anti-SLAPP statute, which requires “dismissal unless the plaintiff can ‘establish a probability that he or she will prevail on the claim’ ”); Klocke, 936 F.3d at 246 (addressing Texas’s anti-SLAPP statute, which requires “ ‘clear and specific evidence’ that a plaintiff can meet each element of his claim”); Abbas, 783 F.3d at 1333 (addressing D.C.’s anti-SLAPP statute, which requires dismissal when the “plaintiff does not have a likelihood of success on the merits”).
Not so for Florida’s anti-SLAPP statute. See Fla. Stat. § 768.295(4). Instead, it fuses with Rules 8, 12, and 56 by entitling the prevailing party to fees and costs if, after invoking the devices set forth by those rules, a court finds an action is “without merit” and thus prohibited. [***] At bottom, Florida’s statute is a garden variety fee shifting provision, which the Florida legislature enacted to accomplish a “fundamental state policy”—deterring SLAPP suits. Fla. Stat. § 768.295(1). The result is a statute that does not “answer the same question” as the Federal Rules. Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 401 (2010).
This conclusion is in line with decades of Eleventh Circuit precedent, which find that state-law statutes and claims for attorneys’ fees and costs “unequivocally” apply in a federal court exercising diversity jurisdiction. [***] In sum, the Court finds that Florida’s anti-SLAPP fee-shifting provision does not conflict with any Federal Rules of Civil Procedure and thus may apply in a federal court exercising diversity jurisdiction. [***]
Note 1. What does the court mean by “defamation by implication”? What is Bongino’s argument about how he was defamed?
Note 2. What does the court mean when it refers to “pure opinions”? Can “pure opinions” be defamatory, according to Bongino?
Note 3. Why did the court reject the reasoning in Bongino’s claim that the statements in question had defamed him?
Note 4. Why does the court believe that dismissal is normatively important in this case?
Note 5. Articulate for yourself the purpose of anti-SLAPP statutes. Does it seem to you that the anti-SLAPP statute was properly applied in this case? In future cases, what facts would tend to persuade you to place limits on private persons’ reputational interests?
Note 6. In the present era, defamation lawsuits have taken on an increasingly political dimension. In an era of misinformation and disinformation, some media outlets and platforms have permitted or contributed to the circulation of outright lies about issues of momentous public importance such as COVID-19 vaccine safety and the 2020 Presidential election. A number of lawsuits have been filed by the manufacturer of voting machines, Dominion Voting Systems, which was routinely (and falsely) maligned as having interfered with or tainted the election. An early assessment of those cases seems positive for Dominion Voting. (See e.g. https://www.latimes.com/entertainmen...-webb-dominion) These lawsuits hint at the possibility that courts could play a role in stemming disinformation. What sorts of mis- and disinformation have you observed in circulation? To what extent does existing case law go far enough, in your view, in balancing speech and reputational interests? Should the politicization of defamation law be recognized and reflected in some way in judicial or legislative action?
1. Section 47(b) provides in part: “A privileged publication or broadcast is one made: ... (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],” with certain statutory exceptions.
2. Hagberg, however, was largely superseded this year by the California Legislature. Effective January 1, 2021, the California Legislature amended § 47(b) by adding an exception to the absolute privilege that provides: (5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report. See 2020 Cal. Legis. Serv. Ch. 327 (A.B. 1775). Given this amendment, under current California law there is only a qualified privilege for reports of a crime—reports that are intentionally false or made with reckless disregard of their truth are not privileged.
3. In existing litigation, “Hawaii courts have applied an absolute litigation privilege in defamation actions for words and writings that are material and pertinent to judicial proceedings.” Matsuura v. E.I. du Pont de Nemours and Co., 102 Haw. 149, 154 (2003) (citations omitted) (emphasis added). In that regard, Matsuura reiterated the holding from Ferry v. Carlsmith, 23 Haw. 589 (1917) that it is “well settled that attorneys, in the conduct of judicial proceedings, are privileged from prosecution for libel or slander in respect to words or writings, used in the course of such proceedings, reflecting injuriously upon others, when such words and writings are material and pertinent to the question involved.” Id. at 591. Ferry, however, gave limits to that “absolute” privilege:
The communication is absolutely privileged if the same is a fair comment upon the evidence and relevant to the matters at issue. Counsel is not liable to answer for defamatory matter uttered by him in the trial of a cause if the matter is applicable and pertinent to the subject of inquiry, but this privilege of counsel must be understood to have this limitation, that he shall not avail himself of his situation to gratify private malice by uttering slanderous expressions against party, witness, or third persons which have no relation to the subject-matter of the inquiry. Id. (quotation marks and citation omitted).
4. Of course, the statement must also be false to be actionable as defamation. See Gold, 88 Haw. at 100, 962 P.2d at 359 (requiring “a false and defamatory statement concerning another” as an element of defamation) (emphasis added). As the Hawaii Supreme Court has explained:
A finding that the publication is libelous per se presumes damages to the injured party and thus special damages need not be shown. This is not, however, determinative of the issue whether defendant is liable. The claim for relief remains subject to a privilege defense asserted by the publisher of the defamatory material. Russell v. Am. Guild of Variety Artists, 53 Haw. 456, 459 (1972).
5. In the two subsections immediately preceding Section 230(c), Congress identified certain findings and policies: (a) Findings. The Congress finds the following: (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. (b) Policy. It is the policy of the United States—(1) to promote the continued development of the Internet and other interactive computer services and other interactive media; (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer. 47 U.S.C. Sec. 230 (a), (b).
6. As further dicta in GTE suggests, however, the Court’s construction likely is not the doomsday scenario that Craigslist and the Service Providers make it out to be. Indeed, future plaintiffs likely will have a tough row to hoe even without an absolute grant of immunity to ICSs:
Plaintiffs do not cite any case in any jurisdiction holding that a service provider must take reasonable care to prevent injury to third parties. Consider the Postal Service or Federal Express, which sell transportation services that could be used to carry harmful articles. As far as we can discover, no court has held such a carrier liable for failure to detect and remove harmful items from shipments.... Similarly, telephone companies are free to sell phone lines to entities ... without endeavoring to find out what use the customers make of the service.... Yet an ISP, like a phone company, sells a communications service; it enabled Franco, [the defendant], to post a web site and conduct whatever business Franco chose. That GTE supplied some inputs (server space, bandwidth, and technical assistance) into Franco’s business does not distinguish it from the lessor of Franco’s office space or the shipper of the tapes to its customers. Landlord, phone company, delivery service, and web host all could learn, at some cost, what Franco was doing with the services and who was potentially injured as a result; but state law does not require these providers to learn, or to act as Good Samaritans if they do. The common law rarely requires people to protect strangers, or for that matter acquaintances or employees. GTE, 347 F.3d at 661.
7. The Court is not definitively reaching—because it need not—the issue of whether states may in fact enact such initiatives.
8. Even though Section 230(c)(1) provides something less than absolute immunity, it nonetheless could also be a definitional clause, as CLC contends and as Judge Easterbrook alternatively suggests. The two readings are not mutually exclusive. Although Section 230(c)(1) could operate, consistent with the Court’s holding, to define the scope of immunity under Section 230(c)(2), the Court need not reach that issue because, given the Court’s construction of the statute, it is not essential to the current motion. To be clear, the Court holds here that Section 230(c)(1) is not only a definitional clause or only a threshold to receiving immunity under Section 230(c)(2). Whether it is such a definitional clause is an issue for another day.
9. CLC and the NFHA contend that, even if the Court construes Section 230(c)(1) as barring claims that have “publishing” as an essential element, CLC’s claim can proceed because Section 3604(c) also prohibits the “mak[ing]” and “print[ing]” of discriminatory housing notices. [c] The Court disagrees. The Complaint cannot state a claim for relief under Section 3604(c) because, even when viewed in the most favorable light, Craigslist has not made or printed the notices at issue. Craigslist did not “make” the notices because they originated from users of Craigslist’s website, and it did not “print” them within any reasonable interpretation of that word, as defined when Congress enacted the FHA. See, e.g., WEBSTER’S THIRD NEW INTL DICTIONARY (1981) (defining “print” as “1a: to make an impression in or upon ... 1b: to make a copy of by impressing paper against an inked printing surface or by an analogous method; 2b to perform or cause to be performed all or some of the operations necessary to the production of (as a publication, a piece of printed matter, a picture ...”)); see also Sanders v. Jackson, 209 F.3d 998, 1000 (7th Cir.2000) (“The cardinal rule is that words used in statutes must be given their ordinary and plain meaning. We frequently look to dictionaries to determine the plain meaning of words, and in particular we look at how a phrase was defined at the time the statute was drafted and enacted.”). Perhaps recognizing that Craigslist’s alleged conduct would not fit within the plain meaning of these terms, CLC asserts throughout its Complaint only that Craigslist “published” the notices at issue.
10. The Court first notes that Plaintiff’s Complaint serves as the most common form of a stereotypical shotgun pleading and runs afoul of the Federal Rules of Civil Procedure and Eleventh Circuit precedent in that it “contains several counts, each one incorporating by reference the allegations of its predecessors [i.e., predecessor counts], leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions.” Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002); see also Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (identifying a complaint as a shotgun pleading where “[e]ach count incorporates by reference the allegations made in a section entitled ‘General Factual Allegations’—which comprise[d] 146 numbered paragraphs—while also incorporating the allegations of any count or counts that precede[d] it.”) (emphasis added). Nonetheless, because the Court is able to discern the basis of the Complaint, the Court will proceed on the merits.
11. The Court notes that the article before it appears to have been edited after initial publication to reflect the comments made by both Plaintiff and officials from NRATV. As an initial matter, this highlights the importance of § 770.01's pre-suit notice requirement in that it allows such redactions or republications to occur prior to suit. Nonetheless, Plaintiff does not dispute the attached article's applicability to the instant motion to dismiss. See Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir. 2014) ("[A] party's failure to respond to any portion or claim in a motion indicates such portion, claim or defense is unopposed."). | textbooks/biz/Civil_Law/Tort_Law%3A_A_21st-Century_Approach_(Said)/07%3A_Defamation/7.03%3A_Defenses_and_Limitations.txt |
I. Introduction
The doctrine of “state action” is integral to American Constitutional law. With one notable exception, the United States Constitution protects individual rights only against incursions by governments, whether federal, state, or local. Generally, the Constitution does not govern the “rights” of individuals arguably infringed by other individuals (or corporations).
Note that while the term generally used is “state action,” “state” here means all levels of government. Thus, “state action” can be the federal government or a municipal government, as well as a state.
Sometimes, the question of “state action” is relatively simple.
Consider whether a judge would be likely to grant or deny a motion to dismiss for failure to allege sufficient state action, if the plaintiff alleged a violation of the First Amendment:
A. The California Legislature passed a statute that violated the plaintiff’s First Amendment right to freedom of speech.
B. The City of Austin, in Texas, passed an ordinance that violated the plaintiff’s First Amendment right to free exercise of religion.
C. The Department of Prisons of Nevada, a state administrative agency, promulgated a regulation that violated plaintiff’s right to receive mail in violation of the First Amendment.
D. The President of the United States issued an Executive Order that violated the plaintiff’s First Amendment right to free exercise of religion.
E. Federal Bureau of Investigation officers arrested plaintiff in violation of her First Amendment rights to assembly.
F. A principal at a public school suspended plaintiff, a student, for wearing “inappropriate attire” in violation of her First Amendment rights to “symbolic speech.”
G. A father at the dinner table told his son to be quiet in violation of the child’s First Amendment rights to freedom of speech.
H. A rider on the subway shouted and blocked the way of subway performers in violation of their First Amendment rights to “artistic expression.”
I. A salesclerk in the Abercrombie & Fitch store on Fifth Avenue in New York asks a customer wearing a head covering to leave the store in violation of her First Amendment rights.
Determining whether or not an action qualifies as “state action” is not always so simple, as the cases in this Chapter demonstrate.
II. Constitutional Provisions
Let’s begin by examining the text of some specific Constitutional provisions. Look for the “state action” requirement, recalling that this includes the federal government. Is the language in some provisions more explicit than in others? Is it absent in any?
A. Fourteenth Amendment
Section 1 of the Fourteenth Amendment provides:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
B. First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
C. Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
D. Thirteenth Amendment
Section 1 of the Thirteenth Amendment provides:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
III. The “Civil Rights Cases”
Both the Thirteenth Amendment and Fourteenth Amendment became part of the Constitution after the Civil War (1861-1865). The Thirteenth Amendment does not have a state action requirement: slavery and involuntary servitude are prohibited.
Along with the Fifteenth Amendment (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”), these Amendments are also known as the “Reconstruction Amendments.”
Each of the Reconstruction Amendments also includes a section that states that “Congress shall have the power to enforce” the Amendment by “appropriate legislation.”
Congress passed the Civil Rights Act of 1875 forbidding racial discrimination in public accommodations including trains, hotels, theaters, and inns. Individuals who discriminated on the basis of race could be subject to civil and criminal penalties.
In five consolidated cases known as the Civil Rights Cases, 109 U.S. 3 (1883), the United States Supreme Court held that the Civil Rights Act of 1875 was unconstitutional. It held that Congress did not have the power under either the Thirteenth or Fourteenth Amendments to prohibit racial discrimination by private persons. In short, the Court held that the Thirteenth Amendment’s prohibition of slavery did not include racial discrimination and that the Fourteenth Amendment only reached “state aggression” not the “wrongful acts of individuals.”
The Civil Rights Cases are difficult; we will return to the case at the end of this Chapter. But as you examine the next cases, notice whether the Court considered the precedent of the Civil Rights Cases.
IV. Toward a Doctrine of State Action
Marsh v. Alabama
326 U.S. 501 (1946)
Mr. Justice Black delivered the opinion of the Court.
In this case we are asked to decide whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town’s management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.
Appellant, a Jehovah’s Witness, came onto the sidewalk we have just described, stood near the post-office and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows: ‘This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.’ Appellant was warned that she could not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she was charged in the state court with violating Title 14, Section 426 of the 1940 Alabama Code which makes it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant contended that to construe the state statute as applicable to her activities would abridge her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention was rejected and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute as applied was constitutional because the title to the sidewalk was in the corporation and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public. The State Supreme Court denied certiorari, and the case is here on appeal under Section 237(a) of the Judicial Code, 28 U.S.C. s 344(a).
Had the title to Chickasaw belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company-town it would have been clear that appellant’s conviction must be reversed. * * * * [H]ad the people of Chickasaw owned all the homes, and all the stores, and all the streets, and all the sidewalks, all those owners together could not have set up a municipal government with sufficient power to pass an ordinance completely barring the distribution of religious literature. Our question then narrows down to this: Can those people who live in or come to Chickasaw be denied freedom of press and religion simply because a single company has legal title to all the town? For it is the state’s contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms.
We do not agree that the corporation’s property interests settle the question. The State urges in effect that the corporation’s right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We can not accept that contention. Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. * * * *
We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a ‘business block’ in the town and a street and sidewalk on that business block. Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The ‘business block’ serves as the community shopping center and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.
Many people in the United States live in company-owned towns.* These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens they must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.
When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. * * * * In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a State statute. Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand.
Reversed and remanded.
* {Footnote 5 of Court’s opinion} In the bituminous coal industry alone, approximately one-half of the miners in the United States lived in company-owned houses in the period from 1922-23. The percentage varied from nine per cent in Illinois and Indiana and 64 percent in Kentucky, to almost 80 per cent in West Virginia. U.S. Coal Commission, Report, 1925, Part III, pp. 1467, 1469 summarized in Morris, The Plight of the Coal Miner, Philadelphia 1934, Ch. VI, p. 86. The most recent statistics we found available are in Magnusson, Housing by Employers in the United States, Bureau of Labor Statistics Bulletin No. 263 (Misc. Ser.) p. 11. See also United States Department of Labor, Wage and Hour Division, Data on Pay Roll Deductions, Union Manufacturing Company, Union Point, Georgia, June 1941; Rhyne, Some Southern Cotton Mill Workers and Their Villages, Chapel Hill, 1930 (Study completed under the direction of the Institute for Research in Social Science at the University of North Carolina); Comment, Urban Redevelopment, 54 Yale L.J. 116.
Mr. Justice Frankfurter, concurring.
* * * * A company-owned town gives rise to a network of property relations. As to these, the judicial organ of a State has the final say. But a company-owned town is a town. In its community aspects it does not differ from other towns. These community aspects are decisive in adjusting the relations now before us, and more particularly in adjudicating the clash of freedoms which the Bill of Rights was designed to resolve—the freedom of the community to regulate its life and the freedom of the individual to exercise his religion and to disseminate his ideas. Title to property as defined by State law controls property relations; it cannot control issues of civil liberties which arise precisely because a company town is a town as well as a congeries of property relations. And similarly the technical distinctions on which a finding of “trespass” so often depends are too tenuous to control decision regarding the scope of the vital liberties guaranteed by the Constitution. * * * *
Mr. Justice Reed, dissenting.
* * * * This is the first case to extend by law the privilege of religious exercises beyond public places or to private places without the assent of the owner.
As the rule now announced permits this intrusion, without possibility of protection of the property by law, and apparently is equally applicable to the freedom of speech and the press, it seems appropriate to express a dissent to this, to us, novel Constitutional doctrine. Of course, such principle may subsequently be restricted by this Court to the precise facts of this case—that is to private property in a company town where the owner for his own advantage has permitted a restricted public use by his licensees and invitees. Such distinctions are of degree and require new arbitrary lines, judicially drawn, instead of those hitherto established by legislation and precedent. While the power of this Court, as the interpreter of the Constitution to determine what use of real property by the owner makes that property subject, at will, to the reasonable practice of religious exercises by strangers, cannot be doubted, we find nothing in the principles of the First Amendment, adopted now into the Fourteenth, which justifies their application to the facts of this case. * * * *
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Shelley v. Kraemer
334 U.S. 1 (1948)
Chief Justice Vinson delivered the Opinion of the Court.
These cases present for our consideration questions relating to the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property. Basic constitutional issues of obvious importance have been raised.
The first of these cases comes to this Court on certiorari to the Supreme Court of Missouri. On February 16, 1911, thirty out of a total of thirty-nine owners of property fronting both sides of Labadie Avenue between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an agreement, which was subsequently recorded, providing in part:
“. . . the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition all the time and whether recited and referred to as [sic] not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.”
The entire district described in the agreement included fifty-seven parcels of land. The thirty owners who signed the agreement held title to forty-seven parcels, including the particular parcel involved in this case. At the time the agreement was signed, five of the parcels in the district were owned by Negroes. One of those had been occupied by Negro families since 1882, nearly thirty years before the restrictive agreement was executed. The trial court found that owners of seven out of nine homes on the south side of Labadie Avenue, within the restricted district and “in the immediate vicinity” of the premises in question, had failed to sign the restrictive agreement in 1911. At the time this action was brought, four of the premises were occupied by Negroes, and had been so occupied for periods ranging from twenty-three to sixty-three years. A fifth parcel had been occupied by Negroes until a year before this suit was instituted.
On August 11, 1945, pursuant to a contract of sale, petitioners Shelley, who are Negroes, for valuable consideration received from one Fitzgerald a warranty deed to the parcel in question. The trial court found that petitioners had no actual knowledge of the restrictive agreement at the time of the purchase.
On October 9, 1945, respondents, as owners of other property subject to the terms of the restrictive covenant, brought suit in the Circuit Court of the city of St. Louis praying that petitioners Shelley be restrained from taking possession of the property and that judgment be entered divesting title out of petitioners Shelley and revesting title in the immediate grantor or in such other person as the court should direct. The trial court denied the requested relief on the ground that the restrictive agreement, upon which respondents based their action, had never become final and complete because it was the intention of the parties to that agreement that it was not to become effective until signed by all property owners in the district, and signatures of all the owners had never been obtained.
The Supreme Court of Missouri sitting en banc reversed and directed the trial court to grant the relief for which respondents had prayed. That court held the agreement effective and concluded that enforcement of its provisions violated no rights guaranteed to petitioners by the Federal Constitution. At the time the court rendered its decision, petitioners were occupying the property in question.
The second of the cases under consideration comes to this Court from the Supreme Court of Michigan. * * * *
I
Whether the equal protection clause of the Fourteenth Amendment inhibits judicial enforcement by state courts of restrictive covenants based on race or color is a question which this Court has not heretofore been called upon to consider. * * * *
{But it is} clear that restrictions on the right of occupancy of the sort sought to be created by the private agreements in these cases could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance. We do not understand respondents to urge the contrary. * * * *
{But} Here the particular patterns of discrimination and the areas in which the restrictions are to operate, are determined, in the first instance, by the terms of agreements among private individuals. Participation of the State consists in the enforcement of the restrictions so defined. The crucial issue with which we are here confronted is whether this distinction removes these cases from the operation of the prohibitory provisions of the Fourteenth Amendment.
Since the decision of this Court in the Civil Rights Cases (1883), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.
We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the state and the provisions of the Amendment have not been violated.
But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. The respondents urge that judicial enforcement of private agreements does not amount to state action; or, in any event, the participation of the State is so attenuated in character as not to amount to state action within the meaning of the Fourteenth Amendment. Finally, it is suggested, even if the States in these cases may be deemed to have acted in the constitutional sense, their action did not deprive petitioners of rights guaranteed by the Fourteenth Amendment. We move to a consideration of these matters.
II
* * * * [T]he examples of state judicial action which have been held by this Court to violate the Amendment’s commands are not restricted to situations in which the judicial proceedings were found in some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a substantive common-law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process. * * * *
The short of the matter is that from the time of the adoption of the Fourteenth Amendment until the present, it has been the consistent ruling of this Court that the action of the States to which the Amendment has reference, includes action of state courts and state judicial officials. * * * * [I]t has never been suggested that state court action is immunized from the operation of those provisions simply because the act is that of the judicial branch of the state government.
III
Against this background of judicial construction, extending over a period of some three-quarters of a century, we are called upon to consider whether enforcement by state courts of the restrictive agreements in these cases may be deemed to be the acts of those States; and, if so, whether that action has denied these petitioners the equal protection of the laws which the Amendment was intended to insure.
We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.
These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing.
The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common-law policy of the States as formulated by those courts in earlier decisions. In the Missouri case, enforcement of the covenant was directed in the first instance by the highest court of the State after the trial court had determined the agreement to be invalid for want of the requisite number of signatures. In the Michigan case, the order of enforcement by the trial court was affirmed by the highest state court. The judicial action in each case bears the clear and unmistakable imprimatur of the State. We have noted that previous decisions of this Court have established the proposition that judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state’s common-law policy. Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement.* * * *
Respondents urge, however, that since the state courts stand ready to enforce restrictive covenants excluding white persons from the ownership or occupancy of property covered by such agreements, enforcement of covenants excluding colored persons may not be deemed a denial of equal protection of the laws to the colored persons who are thereby affected. This contention does not bear scrutiny. The parties have directed our attention to no case in which a court, state or federal, has been called upon to enforce a covenant excluding members of the white majority from ownership or occupancy of real property on grounds of race or color. But there are more fundamental considerations. The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.
Nor do we find merit in the suggestion that property owners who are parties to these agreements are denied equal protection of the laws if denied access to the courts to enforce the terms of restrictive covenants and to assert property rights which the state courts have held to be created by such agreements. The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. And it would appear beyond question that the power of the State to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth Amendment. Cf. Marsh.* * * *
Reversed.
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Notes
1. Did you notice how the opinions in Marsh and Shelley did or did not cite the Civil Rights Cases?
2. How do notions of “private property” appear in the Court’s opinions in Marsh and Shelley?
3. Understanding political, social, and economic movements and trends – – – “history” – – – occurring at the time of a Court’s opinion can be a useful adjunct to understanding (and even memorizing) doctrine. Are there aspects of history that you can discern from these cases? What particular language from the opinions support your opinions?
Note: State Action in the Civil Rights Era: Burton & Irvis
State action doctrine was an important issue in “civil rights” struggles, with the courts deciding many cases determining whether the Fourteenth Amendment’s Equal Protection Clause was applicable to institutions which practiced racial segregation. Two cases are especially important and illustrate the Court’s changing views: Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) and Moose Lodge v. Irvis, 407 U.S. 163 (1972). Both involved prominent Black men challenging their racially-motivated exclusion from spaces.
Burton involved the Eagle Coffee Shoppe, Inc., which the Court described as “a restaurant located within an off-street automobile parking building in Wilmington, Delaware.” The building was “owned and operated by the Wilmington Parking Authority, an agency of the State of Delaware, and the restaurant is the Authority’s lessee.” The Delaware Supreme Court held that the coffee shoppe, in refusing service to William Burton (the original plaintiff), was acting in “a purely private capacity” under its lease and therefore there was no state action within the contemplation of the prohibitions contained in that Amendment. The United States Supreme Court reversed.
The Court stated that “to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an ‘impossible task’ which ‘This Court has never attempted.’” Instead, it is “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.”
The Court then proceeded with its task of “sifting facts and weighing circumstances,” stating:
The land and building were publicly owned. As an entity, the building was dedicated to “public uses” in performance of the Authority’s “essential governmental functions” [by Delaware statute]. The costs of land acquisition, construction, and maintenance are defrayed entirely from donations by the City of Wilmington, from loans and revenue bonds and from the proceeds of rentals and parking services out of which the loans and bonds were payable. Assuming that the distinction would be significant, the commercially leased areas were not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State’s plan to operate its project as a self-sustaining unit. Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority and were payable out of public funds. It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits. Guests of the restaurant are afforded a convenient place to park their automobiles, even if they cannot enter the restaurant directly from the parking area. Similarly, its convenience for diners may well provide additional demand for the Authority’s parking facilities. Should any improvements effected in the leasehold by Eagle become part of the realty, there is no possibility of increased taxes being passed on to it since the fee is held by a tax-exempt government agency. Neither can it be ignored, especially in view of Eagle’s affirmative allegation that for it to serve Negroes would injure its business, that profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.
Addition of all these activities, obligations and responsibilities of the Authority, the benefits mutually conferred, together with the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service, indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn. It is irony amounting to grave injustice that in one part of a single building, erected and maintained with public funds by an agency of the State to serve a public purpose, all persons have equal rights, while in another portion, also serving the public, a Negro is a second-class citizen, offensive because of his race, without rights and unentitled to service, but at the same time fully enjoys equal access to nearby restaurants in wholly privately owned buildings.
The Court found there was state action, thus subjecting the defendant to the requirements of the Fourteenth Amendment’s Equal Protection Clause.
Dissenting, Justice Harlan, joined by another Justice, wrote that the “Court’s opinion, by a process of first undiscriminatingly throwing together various factual bits and pieces and then undermining the resulting structure by an equally vague disclaimer, seems to me to leave completely at sea just what it is in this record that satisfies the requirement of ‘state action.’”
In an opinion rendered a little more than a decade later, the United States Supreme Court distinguished Burton in Moose Lodge v. Irvis. In Irvis, the Court found that a local Moose Lodge in Harrisburg, Pennsylvania was not a state actor, and thus its refusal to serve Irvis alcohol was not subject to the Fourteenth Amendment’s Equal Protection Clause. The opinion for the Court by Justice Rehnquist described Moose Lodge as:
a private club in the ordinary meaning of that term. It is a local chapter of a national fraternal organization having well-defined requirements for membership. It conducts all of its activities in a building that is owned by it. It is not publicly funded. Only members and guests are permitted in any lodge of the order; one may become a guest only by invitation of a member or upon invitation of the house committee.
The Court provided a review of state action doctrine:
In 1883, this Court in the Civil Rights Cases, set forth the essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, “however discriminatory or wrongful,” against which that clause “erects no shield,” Shelley v. Kraemer (1948). That dichotomy has been subsequently reaffirmed in Shelley v. Kraemer and in Burton v. Wilmington Parking Authority (1961).
While the principle is easily stated, the question of whether particular discriminatory conduct is private, on the one hand, or amounts to “state action,” on the other hand, frequently admits of no easy answer. “Only by sifting facts and weighing circumstances can the non-obvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority.
Our cases make clear that the impetus for the forbidden discrimination need not originate with the State if it is state action that enforces privately originated discrimination. Shelley. The Court held in Burton that a private restaurant owner who refused service because of a customer’s race violated the Fourteenth Amendment, where the restaurant was located in a building owned by a state created parking authority and leased from the authority. The Court, after a comprehensive review of the relationship between the lessee and the parking authority concluded that the latter had ‘so far insinuated itself into a position of interdependence with Eagle (the restaurant owner) that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.
The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from state conduct. * * * * Our holdings indicate that where the impetus for the discrimination is private, the State must have “significantly involved itself with invidious discriminations,” in order for the discriminatory action to fall within the ambit of the constitutional prohibition.
Our prior decisions dealing with discriminatory refusal of service in public eating places are significantly different factually from the case now before us. Peterson v. City of Greenville (1963) dealt with the trespass prosecution of persons who ‘sat in’ at a restaurant to protest its refusal of service to Negroes. There the Court held that although the ostensible initiative for the trespass prosecution came from the proprietor, the existence of a local ordinance requiring segregation of races in such places was tantamount to the State having “commanded a particular result.” With one exception, there is no suggestion in this record that the Pennsylvania statutes and regulations governing the sale of liquor are intended either overtly or covertly to encourage discrimination.
The exception in Irvis to which the Court referred was this: the Pennsylvania state Liquor Control Board adopted a regulation that affirmatively required that “(e)very club licensee shall adhere to all of the provisions” of the national organization’s “Constitution and By-Laws.” In other words, a local Moose Lodge club had to adhere to the rules of the national Moose Lodge organization. It was a rule of the national Moose Lodge that only white men could be members and only white people could be guests.
The majority stated this was not sufficient but stated that “Shelley makes it clear that the application of state sanctions to enforce such a rule would violate the Fourteenth Amendment.” So the Court ruled that Irvis was entitled to a decree enjoining the enforcement of the Liquor Board regulations “insofar as that regulation requires compliance by Moose Lodge with provisions of its constitution and bylaws containing racially discriminatory provisions,” but that Irvis was “entitled to no more.”
Dissenting, Justice Douglas, joined by Justice Marshall, argued that liquor licenses in Pennsylvania, “unlike driver’s licenses, or marriage licenses, are not freely available to those who meet racially neutral qualifications,” and that under the “complex quota system,” the quota for Harrisburg, where Moose Lodge No. 107 was located, has been full for many years:
This state-enforced scarcity of licenses restricts the ability of Blacks to obtain liquor, for liquor is commercially available only at private clubs for a significant portion of each week. Access by Blacks to places that serve liquor is further limited by the fact that the state quota is filled. A group desiring to form a nondiscriminatory club which would serve blacks must purchase a license held by an existing club, which can exact a monopoly price for the transfer. The availability of such a license is speculative at best, however, for, as Moose Lodge itself concedes, without a liquor license a fraternal organization would be hard pressed to survive. Thus, the State of Pennsylvania is putting the weight of its liquor license, concededly a valued and important adjunct to a private club, behind racial discrimination. * * * *
Blum v. Yaretsky
457 U.S. 991 (1982)
Justice Rehnquist delivered the opinion of the Court.
Respondents represent a class of Medicaid patients challenging decisions by the nursing homes in which they reside to discharge or transfer patients without notice or an opportunity for a hearing. The question is whether the State may be held responsible for those decisions so as to subject them to the strictures of the Fourteenth Amendment.
I
Congress established the Medicaid program in 1965 as Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., (1976 ed. and Supp.IV), to provide federal financial assistance to States that choose to reimburse certain medical costs incurred by the poor. As a participating State, New York provides Medicaid assistance to eligible persons who receive care in private nursing homes, which are designated as either “skilled nursing facilities” (SNF’s) or “health related facilities” (HRF’s). The latter provide less extensive, and generally less expensive, medical care than the former. Nursing homes chosen by Medicaid patients are directly reimbursed by the State for the reasonable cost of health care services, N.Y.Soc.Serv.Law § 367–a.1 (McKinney Supp.1981).
An individual must meet two conditions to obtain Medicaid assistance. He must satisfy eligibility standards defined in terms of income or resources and he must seek medically necessary services. See 42 U.S.C. § 1396. To assure that the latter condition is satisfied, federal regulations require each nursing home to establish a utilization review committee (URC) of physicians whose functions include periodically assessing whether each patient is receiving the appropriate level of care, and thus whether the patient’s continued stay in the facility is justified. If the URC determines that the patient should be discharged or transferred to a different level of care, either more or less intensive, it must notify the state agency responsible for administering Medicaid assistance.
At the time their complaint was filed, respondents Yaretsky and Cuevas were patients in the American Nursing Home, an SNF located in New York City. Both were recipients of assistance under the Medicaid program. In December 1975 the nursing home’s URC decided that respondents did not need the care they were receiving and should be transferred to a lower level of care in an HRF. New York City officials, who were then responsible for administering the Medicaid program in the city, were notified of this decision and prepared to reduce or terminate payments to the nursing home for respondents’ care. Following administrative hearings, state social service officials affirmed the decision to discontinue benefits unless respondents accepted a transfer to an HRF providing a reduced level of care.
Respondents then commenced this suit, acting individually and on behalf of a class of Medicaid-eligible residents of New York nursing homes. Named as defendants were the Commissioners of the New York Department of Social Services and the Department of Health. Respondents alleged in part that the defendants had not afforded them [the constitutionally required] notice either of URC decisions and the reasons supporting them or of their [constitutional] right to an administrative hearing to challenge those decisions. Respondents maintained that these actions violated their rights under state and federal law and under the Due Process Clause of the Fourteenth Amendment. They sought injunctive relief and damages.
In January 1978 the District Court certified a class and issued a preliminary injunction, restraining the defendants from reducing or terminating Medicaid benefits without timely written notice to the patients, provided by state or local officials, of the reasons for the URC decision, the defendants’ proposed action, and the patients’ right to an evidentiary hearing and continued benefits pending administrative resolution of the claim. The court’s accompanying opinion relied primarily on existing federal and state regulations.
* * * * Respondents asserted that [any patient] transfers deprived patients of interests protected by the Fourteenth Amendment and were the product of “state action.”
In October 1979 the District Court approved a consent judgment * * * * [but the consent judgment] left several issues of law to be decided by the District Court. The most important, for our purposes, was “whether there is state action and a constitutional right to a pre-transfer evidentiary hearing in a patient transfer * * * initiated by the facility or its agents.” Ultimately, the District Court answered that question in respondents’ favor, although without elaborating its reasons. The court permanently enjoined petitioners, as well as all SNF’s and HRF’s in the State, from permitting or ordering the discharge of class members, or their transfer to a different level of care, without providing advance written notice and an evidentiary hearing on “the validity and appropriateness of the proposed action.”
The Court of Appeals for the Second Circuit affirmed that portion of the District Court’s judgment we have described above. The court held that * * * all discharges and transfers initiated by the nursing homes or attending physicians, “involve state action affecting constitutionally protected property and liberty interests.” The court premised its identification of state action on the fact that state authorities “responded” to the challenged transfers by adjusting the patients’ Medicaid benefits. Citing our opinion in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974), the court viewed this response as establishing a sufficiently close “nexus” between the State and either the nursing homes or the URC’s to justify treating their actions as those of the State itself.
We granted certiorari to consider the Court of Appeals’ conclusions about the nature of state action. We now reverse its judgment.
II
[The Court considered whether the respondents had “standing” and had demonstrated that they were personally injured. The Court held that they did.]
We turn now to the “state action” question presented by petitioners.
III
The Fourteenth Amendment of the Constitution provides in part that “[n]o State shall . . . deprive any person of life, liberty, or property without due process of law.” Since this Court’s decision in the Civil Rights Cases, 109 U.S. 3 (1883), “the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States.” Shelley v. Kraemer, 334 U.S. 1, 13 (1948). “That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” Shelley. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); Adickes v. S. H. Kress & Co., 398 U.S. 144, (1970).
Faithful adherence to the “state action” requirement of the Fourteenth Amendment requires careful attention to the gravamen of the plaintiff’s complaint. In this case, respondents objected to the involuntary discharge or transfer of Medicaid patients by their nursing homes without certain procedural safeguards. They have named as defendants state officials responsible for administering the Medicaid program in New York. These officials are also responsible for regulating nursing homes in the State, including those in which respondents were receiving care. But respondents are not challenging particular state regulations or procedures, and their arguments concede that the decision to discharge or transfer a patient originates not with state officials, but with nursing homes that are privately owned and operated. Their lawsuit, therefore, seeks to hold state officials liable for the actions of private parties, and the injunctive relief they have obtained requires the State to adopt regulations that will prohibit the private conduct of which they complain.
A
This case is obviously different from those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the State so as to make it “state” action for purposes of the Fourteenth Amendment. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978); Jackson v. Metropolitan Edison Co. (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, (1972). It also differs from other “state action” cases in which the challenged conduct consists of enforcement of state laws or regulations by state officials who are themselves parties in the lawsuit; in such cases the question typically is whether the private motives which triggered the enforcement of those laws can fairly be attributed to the State. See, e.g., Peterson v. City of Greenville, 373 U.S. 244 (1963). But both these types of cases shed light upon the analysis necessary to resolve the present case.
First, although it is apparent that nursing homes in New York are extensively regulated, “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Jackson v. Metropolitan Edison Co., 419 U.S., at 350. The complaining party must also show that “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Id., at 351. The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains. The importance of this assurance is evident when, as in this case, the complaining party seeks to hold the State liable for the actions of private parties.
Second, although the factual setting of each case will be significant, our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Flagg Bros., Inc. v. Brooks, 436 U.S. at 166; Jackson v. Metropolitan Edison Co., 419 U.S. at 357; Moose Lodge No. 107 v. Irvis, 407 U.S. at 173; Adickes v. S. H. Kress & Co., 398 U.S. at 170. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment. See Flagg Bros., 436 U.S. at 164–165; Jackson v. Metropolitan Edison Co., 419 U.S. at 357.
Third, the required nexus may be present if the private entity has exercised powers that are “traditionally the exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co.,419 U.S. at 353; Flagg Bros., Inc. v. Brooks, 436 U.S. at 157–161.
B
Analyzed in the light of these principles, the Court of Appeals’ finding of state action cannot stand. The court reasoned that state action was present in the discharge or transfer decisions implemented by the nursing homes because the State responded to those decisions by adjusting the patient’s Medicaid benefits. Respondents, however, do not challenge the adjustment of benefits, but the discharge or transfer of patients to lower levels of care without adequate notice or hearings. That the State responds to such actions by adjusting benefits does not render it responsible for those actions. The decisions about which respondents complain are made by physicians and nursing home administrators, all of whom are concededly private parties. There is no suggestion that those decisions were influenced in any degree by the State’s obligation to adjust benefits in conformity with changes in the cost of medically necessary care.
Respondents do not rest on the Court of Appeals’ rationale, however. They argue that the State “affirmatively commands” the summary discharge or transfer of Medicaid patients who are thought to be inappropriately placed in their nursing facilities. Were this characterization accurate, we would have a different question before us. However, our review of the statutes and regulations identified by respondents does not support respondents’ characterization of them.
As our earlier summary of the Medicaid program explained, a patient must meet two essential conditions in order to obtain financial assistance. He must satisfy eligibility criteria defined in terms of income and resources and he must seek medically necessary services. To assure that nursing home services are medically necessary, federal law requires that a physician so certify at the time the Medicaid patient is admitted and periodically thereafter. New York requires that the physician complete a “long term care placement form” devised by the Department of Health, called the DMS-1. A completed form provides, inter alia, a numerical score corresponding to the physician’s assessment of the patient’s mental and physical health. As petitioners note, however, the physicians, and not the forms, make the decision about whether the patient’s care is medically necessary. A physician can authorize a patient’s admission to a nursing facility despite a “low” score on the form. We cannot say that the State, by requiring completion of a form, is responsible for the physician’s decision.
In any case, respondents’ complaint is about nursing home decisions to discharge or transfer, not to admit, Medicaid patients. But we are not satisfied that the State is responsible for those decisions either. The regulations cited by respondents require SNF’s and HRF’s “to make all efforts possible to transfer patients to the appropriate level of care or home as indicated by the patient’s medical condition or needs.” The nursing homes are required to complete patient care assessment forms designed by the State and “provide the receiving facility or provider with a current copy of same at the time of discharge to an alternate level of care facility or home.”
These regulations do not require the nursing homes to rely on the forms in making discharge or transfer decisions, nor do they demonstrate that the State is responsible for the decision to discharge or transfer particular patients. Those decisions ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State. This case, therefore, is not unlike Polk County v. Dodson, 454 U.S. 312 (1981), in which the question was whether a public defender acts “under color of” state law * * * * when representing an indigent defendant in a state criminal proceeding. Although the public defender was employed by the State and appointed by the State to represent the respondent, we concluded that “[t]his assignment entailed functions and obligations in no way dependent on state authority.” The decisions made by the public defender in the course of representing his client were framed in accordance with professional canons of ethics, rather than dictated by any rule of conduct imposed by the State. The same is true of nursing home decisions to discharge or transfer particular patients because the care they are receiving is medically inappropriate.
Respondents next point to regulations which, they say, impose a range of penalties on nursing homes that fail to discharge or transfer patients whose continued stay is inappropriate. One regulation excludes from participation in the Medicaid program health care providers who “[f]urnished items or services that are substantially in excess of the beneficiary’s needs.” The State is also authorized to fine health care providers who violate applicable regulations. As we have previously concluded, however, those regulations themselves do not dictate the decision to discharge or transfer in a particular case. Consequently, penalties imposed for violating the regulations add nothing to respondents’ claim of state action.
As an alternative position, respondents argue that even if the State does not command the transfers at issue, it reviews and either approves or rejects them on the merits. The regulations cited by respondents will not bear this construction. Although the State requires the nursing homes to complete patient care assessment forms and file them with state Medicaid officials, and although federal law requires that state officials review these assessments, nothing in the regulations authorizes the officials to approve or disapprove decisions either to retain or discharge particular patients, and petitioners specifically disclaim any such responsibility. Instead, the State is obliged to approve or disapprove continued payment of Medicaid benefits after a change in the patient’s need for services. Adjustments in benefit levels in response to a decision to discharge or transfer a patient does not constitute approval or enforcement of that decision. As we have already concluded, this degree of involvement is too slim a basis on which to predicate a finding of state action in the decision itself.
Finally, respondents advance the rather vague generalization that such a relationship exists between the State and the nursing homes it regulates that the State may be considered a joint participant in the homes’ discharge and transfer of Medicaid patients. For this proposition they rely upon Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Respondents argue that state subsidization of the operating and capital costs of the facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State, taken together convert the action of the homes into “state” action. But accepting all of these assertions as true, we are nonetheless unable to agree that the State is responsible for the decisions challenged by respondents. As we have previously held, privately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton. Jackson v. Metropolitan Edison Co., 419 U.S. at 357–358. That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.
We are also unable to conclude that the nursing homes perform a function that has been “traditionally the exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co., 419 U.S. at 353. Respondents’ argument in this regard is premised on their assertion that both the Medicaid statute and the New York Constitution make the State responsible for providing every Medicaid patient with nursing home services. The state constitutional provisions cited by respondents, however, do no more than authorize the legislature to provide funds for the care of the needy. They do not mandate the provision of any particular care, much less long-term nursing care. Similarly, the Medicaid statute requires that the States provide funding for skilled nursing services as a condition to the receipt of federal moneys. It does not require that the States provide the services themselves. Even if respondents’ characterization of the State’s duties were correct, however, it would not follow that decisions made in the day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public. Indeed, respondents make no such claim, nor could they.
IV
We conclude that respondents have failed to establish “state action” in the nursing homes’ decisions to discharge or transfer Medicaid patients to lower levels of care. Consequently, they have failed to prove that petitioners have violated rights secured by the Fourteenth Amendment. The contrary judgment of the Court of Appeals is accordingly
Reversed.
Justice Brennan, with whom Justice Marshall, joins, dissenting.
If the Fourteenth Amendment is to have its intended effect as a restraint on the abuse of state power, courts must be sensitive to the manner in which state power is exercised. In an era of active government intervention to remedy social ills, the true character of the State’s involvement in, and coercive influence over, the activities of private parties, often through complex and opaque regulatory frameworks, may not always be apparent. But if the task that the Fourteenth Amendment assigns to the courts is thus rendered more burdensome, the courts’ obligation to perform that task faithfully, and consistently with the constitutional purpose, is rendered more, not less, important.
In deciding whether “state action” is present * * * the ultimate determination is simply whether the defendant has brought the force of the State to bear against the plaintiff in a manner the Fourteenth Amendment was designed to inhibit. Where the defendant is a government employee, this inquiry is relatively straightforward. But in deciding whether “state action” is present in actions performed directly by persons other than government employees, what is required is a realistic and delicate appraisal of the State’s involvement in the total context of the action taken. “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961). See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939–942 (1982). The Court today departs from the Burton precept, ignoring the nature of the regulatory framework presented by this case in favor of the recitation of abstract tests and a pigeonhole approach to the question of state action. But however correct the Court’s tests may be in the abstract, they are worth nothing if they are not faithfully applied. Bolstered by its own preconception of the decisionmaking process challenged by respondents, and of the relationship between the State, the nursing home operator, and the nursing home resident, the Court subjects the regulatory scheme at issue here to only the most perfunctory examination. The Court thus fails to perceive the decisive involvement of the State in the private conduct challenged by the respondents.
A
The Court’s analysis in this case is simple, but it is also demonstrably flawed, for it proceeds upon a premise that is factually unfounded. The Court first describes the decision to transfer a nursing home resident from one level of care to another as involving nothing more than a physician’s independent assessment of the appropriate medical treatment required by that resident. Building upon that factual premise, the Court has no difficulty concluding that the State plays no decisive role in the transfer decision: By reducing the resident’s benefits to meet the change in treatment prescribed, the State is simply responding to “medical judgments made by private parties according to professional standards that are not established by the State.” If this were an accurate characterization of the circumstances of this case, I too would conclude that there was no “state action” in the nursing home’s decision to transfer. A doctor who prescribes drugs for a patient on the basis of his independent medical judgment is not rendered a state actor merely because the State may reimburse the patient in different amounts depending upon which drug is prescribed.
But the level-of-care decisions at issue in this case, even when characterized as the “independent” decision of the nursing home have far less to do with the exercise of independent professional judgment than they do with the State’s desire to save money. To be sure, standards for implementing the level-of-care scheme established by the Medicaid program are framed with reference to the underlying purpose of that program—to provide needed medical services. And not surprisingly, the State relies on doctors to implement this aspect of its Medicaid program. But the idea of two mutually exclusive levels of care—skilled nursing care and intermediate care—embodied in the federal regulatory scheme and implemented by the State, reflects no established medical model of health care. On the contrary, the two levels of long-term institutionalized care enshrined in the Medicaid scheme are legislative constructs, designed to serve governmental cost-containment policies.
The fiscal underpinning of the level-of-care determinations at issue here are apparent from the legislative history of the “intermediate care” concept. [The dissent extensively discussed the legislative history and amendments to the federal statute as well as the New York statutes and regulations].
B
* * * * As a fair reading of the relevant regulations makes clear, the State (and Federal Government) have created, and administer, the level system as a cost-saving tool of the Medicaid program. The impetus for this active program of review imposed upon the nursing home operator is primarily this fiscal concern. The State has set forth precisely the standards upon which the level-of-care determinations are to be made, and has delegated administration of the program to the nursing home operators, rather than assume the burden of administering the program itself. Thus, not only does the program implement the State’s fiscal goals, but, to paraphrase the Court, “[t]hese requirements . . . make the State responsible for actual decisions to discharge or transfer particular patients.” Where, as here, a private party acts on behalf of the State to implement state policy, his action is state action.
II
The deficiency in the Court’s analysis is dramatized by its inattention to the special characteristics of the nursing home. Quite apart from the State’s specific involvement in the transfer decisions at issue in this case, the nature of the nursing home as an institution, sustained by state and federal funds, and pervasively regulated by the State so as to ensure that it is properly implementing the governmental undertaking to provide assistance to the elderly and disabled that is embodied in the Medicaid program, undercuts the Court’s sterile approach to the state action inquiry in this case. The private nursing homes of the Nation exist, and profit, at the sufferance of state and federal Medicaid and Medicare agencies. The degree of interdependence between the State and the nursing home is far more pronounced than it was between the State and the private entity in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). The State subsidizes practically all of the operating and capital costs of the facility, and pays the medical expenses of more than 90% of its residents. And, in setting reimbursement rates, the State generally affords the nursing homes a profit as well. Even more striking is the fact that the residents of those homes are, by definition, utterly dependent on the State for their support and their placement. For many, the totality of their social network is the nursing home community. Within that environment, the nursing home operator is the immediate authority, the provider of food, clothing, shelter, and health care, and, in every significant respect, the functional equivalent of a State. Cf. Marsh v. Alabama, 326 U.S. 501 (1946). Surely, in this context we must be especially alert to those situations in which the State “has elected to place its power, property and prestige behind” the actions of the nursing home owner. See Burton v. Wilmington Parking Authority, 365 U.S. at 725.
Yet, whatever might be the status of the nursing home operator where the State has simply left the resident in his charge, while paying for the resident’s support and care, it is clear that the State has not simply left nursing home patients to the care of nursing home operators. No one would doubt that nursing homes are “pervasively regulated” by State and Federal Governments; virtually every action by the operator is subject to state oversight. But the question at this stage is not whether the procedures set forth in the state and federal regulatory scheme are sufficient to protect the residents’ interests. We are confronted with the question preliminary to any Fourteenth Amendment challenge: whether the State has brought its force to bear against the plaintiffs through the office of these private parties. In answering that question we may safely assume that when the State chooses to perform its governmental undertakings through private institutions, and with the aid of private parties, not every action of those private parties is state action. But when the State directs, supports, and encourages those private parties to take specific action, that is state action.
We may hypothesize many decisions of nursing home operators that affect patients, but are not attributable to the State. But with respect to decisions to transfer patients downward from one level of care to another, if that decision is in any way connected with the statutory review structure set forth above, then there is no doubt that the standard for decision, and impetus for the decision, is the responsibility of the State. Indeed, with respect to the level-of-care determination, the State does everything but pay the nursing home operator a fixed salary. Because the State is clearly responsible for the specific conduct of petitioners about which respondents complain, and because this renders petitioners state actors for purposes of the Fourteenth Amendment, I dissent.
Notes
1. Is there a “test” for state action in Blum v. Yarestky?
2. How does the Court’s majority opinion in Blum cite Burton? Moose Lodge v. Irvis?
3. The majority and the dissenting opinions appear to agree that Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), is not directly on point: the majority states that the present case is “obviously different” from several cases, including Jackson and Irvis. But how does the majority rely on the “rule” from Jackson in constructing its own “test”?
V. What is the “Test” for State Action?
Note: Peremptory Challenges and Batson
In order to understand the next case, Edmonson v. Leesville Concrete Company, Inc., it is necessary to be familiar with two underlying legal matters: peremptory challenges and Batson v. Kentucky (1986).
Peremptory challenges are part of the process of selecting a jury. American courts generally allow attorneys a role in selecting the jury in criminal and civil cases. Each attorney may ask the judge to exclude a potential juror “for cause” – for example, because the juror is related to a party or who exhibits explicit bias. In addition, each attorney has a number of “peremptory challenges,” under which a potential juror is excluded at the attorney’s request regardless of whether good causes exist for the exclusion.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Court held that it was a denial of equal protection for a prosecutor to use peremptory challenges in a criminal case for the purpose of excluding racial minorities from the jury. The Court in Batson held that a defendant must first show that he is a member of a “cognizable racial group” and that the prosecutor has used the peremptory challenges to exclude potential jurors from that racial group. After this initial prima facie showing, the burden then shifts to the prosecutor to demonstrate that there was a race neutral reason for exercising the peremptory challenge against that potential juror. The defendant can argue that the prosecutor’s proffered neutral reason is pretextual. The judge then rules on whether the peremptory challenge can be exercised against the potential jurors consistent with equal protection.
Edmonson v. Leesville Concrete Company, Inc.
500 U.S. 614 (1991)
Justice Kennedy delivered the opinion of the Court.
* * * * Thaddeus Donald Edmonson, a construction worker, was injured in a job-site accident at Fort Polk, Louisiana, a federal enclave. Edmonson sued Leesville Concrete Company for negligence in the United States District Court for the Western District of Louisiana, claiming that a Leesville employee permitted one of the company’s trucks to roll backward and pin him against some construction equipment. * * * *
During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Citing our decision in Batson v. Kentucky, Edmonson, who is himself black, requested that the District Court require Leesville to articulate a race-neutral explanation for striking the two jurors. The District Court denied the request on the ground that Batson does not apply in civil proceedings. As impaneled, the jury included 11 white persons and 1 black person. The jury rendered a verdict for Edmonson, assessing his total damages at \$90,000. It also attributed 80” of the fault to Edmonson’s contributory negligence, however, and awarded him the sum of \$18,000.
* * * * With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. This fundamental limitation on the scope of constitutional guarantees “preserves an area of individual freedom by limiting the reach of federal law” and “avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Lugar v. Edmondson Oil Co. (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law.
To implement these principles, courts must consider from time to time where the governmental sphere ends and the private sphere begins. Although the conduct of private parties lies beyond the Constitution’s scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints. * * * *
{In Lugar,} we considered the state-action question in the context of a due process challenge to a State’s procedure allowing private parties to obtain prejudgment attachments. We asked first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority, and second, whether the private party charged with the deprivation could be described in all fairness as a state actor.
There can be no question that the first part of the Lugar inquiry is satisfied here. By their very nature, peremptory challenges have no significance outside a court of law. Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact. * * * * Peremptory challenges are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury.
* * * * In the case before us, the challenges were exercised under a federal statute that provides, inter alia:
In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.
28 U.S.C. § 1870.
Without this authorization, granted by an Act of Congress itself, Leesville would not have been able to engage in the alleged discriminatory acts.
Given that the statutory authorization for the challenges exercised in this case is clear, the remainder of our state-action analysis centers around the second part of the Lugar test, whether a private litigant in all fairness must be deemed a government actor in the use of peremptory challenges. Although we have recognized that this aspect of the analysis is often a factbound inquiry, our cases disclose certain principles of general application. Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, see Tulsa Professional Collection Services, Inc. v. Pope (1988); Burton v. Wilmington Parking Authority (1961); whether the actor is performing a traditional governmental function, see Terry v. Adams (1953); Marsh v. Alabama (1946); cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. (1987); and whether the injury caused is aggravated in a unique way by the incidents of governmental authority, see Shelley v. Kraemer, (1948). Based on our application of these three principles to the circumstances here, we hold that the exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state action.
Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action our cases have found state action when private parties make extensive use of state procedures with “the overt, significant assistance of state officials.” It cannot be disputed that, without the overt, significant participation of the government, the peremptory challenge system, as well as the jury trial system of which it is a part, simply could not exist. As discussed above, peremptory challenges have no utility outside the jury system, a system which the government alone administers. In the federal system, Congress has established the qualifications for jury service, and has outlined the procedures by which jurors are selected. To this end, each district court in the federal system must adopt a plan for locating and summoning to the court eligible prospective jurors. This plan, as with all other trial court procedures, must implement statutory policies of random juror selection from a fair cross section of the community, and non-exclusion on account of race, color, religion, sex, national origin, or economic status. * * * *
At the outset of the selection process, prospective jurors must complete jury qualification forms as prescribed by the Administrative Office of the United States Courts. Failure to do so may result in fines and imprisonment, as might a willful misrepresentation of a material fact in answering a question on the form. In a typical case, counsel receive these forms and rely on them when exercising their peremptory strikes. The clerk of the United States district court, a federal official, summons potential jurors from their employment or other pursuits. They are required to travel to a United States courthouse, where they must report to juror lounges, assembly rooms, and courtrooms at the direction of the court and its officers. Whether or not they are selected for a jury panel, summoned jurors receive a per diem fixed by statute for their service.
The trial judge exercises substantial control over voir dire in the federal system. The judge determines the range of information that may be discovered about a prospective juror, and so affects the exercise of both challenges for cause and peremptory challenges. In some cases, judges may even conduct the entire voir dire by themselves.* * * * The judge oversees the exclusion of jurors for cause, in this way determining which jurors remain eligible for the exercise of peremptory strikes. In cases involving multiple parties, the trial judge decides how peremptory challenges shall be allocated among them. When a lawyer exercises a peremptory challenge, the judge advises the juror he or she has been excused.
* * * * [A] private party could not exercise its peremptory challenges absent the overt, significant assistance of the court. The government summons jurors, constrains their freedom of movement, and subjects them to public scrutiny and examination. The party who exercises a challenge invokes the formal authority of the court, which must discharge the prospective juror, thus effecting the “final and practical denial” of the excluded individual’s opportunity to serve on the petit jury. Without the direct and indispensable participation of the judge, who beyond all question is a state actor, the peremptory challenge system would serve no purpose. By enforcing a discriminatory peremptory challenge, the court “has not only made itself a party to the [biased act], but has elected to place its power, property and prestige behind the [alleged] discrimination.” In so doing, the government has “create[d] the legal framework governing the [challenged] conduct,” and in a significant way has involved itself with invidious discrimination.
In determining Leesville’s state-actor status, we next consider whether the action in question involves the performance of a traditional function of the government. A traditional function of government is evident here. The peremptory challenge is used in selecting an entity that is a quintessential governmental body, having no attributes of a private actor. The jury exercises the power of the court and of the government that confers the court’s jurisdiction. * * * * In the federal system, the Constitution itself commits the trial of facts in a civil cause to the jury. Should either party to a cause invoke its Seventh Amendment right, the jury becomes the principal factfinder, charged with weighing the evidence, judging the credibility of witnesses, and reaching a verdict. The jury’s factual determinations as a general rule are final. In some civil cases* * * * the jury can weigh the gravity of a wrong and determine the degree of the government’s interest in punishing and deterring willful misconduct. A judgment based upon a civil verdict may be preclusive of issues in a later case, even where some of the parties differ. And in all jurisdictions a true verdict will be incorporated in a judgment enforceable by the court. These are traditional functions of government, not of a select, private group beyond the reach of the Constitution.
If a government confers on a private body the power to choose the government’s employees or officials, the private body will be bound by the constitutional mandate of race neutrality. At least a plurality of the Court recognized this principle in Terry v. Adams (1953). There we found state action in a scheme in which a private organization known as the Jaybird Democratic Association conducted whites-only elections to select candidates to run in the Democratic primary elections in Ford Bend County, Texas. The Jaybird candidate was certain to win the Democratic primary and the Democratic candidate was certain to win the general election.* * * *
The principle that the selection of state officials, other than through election by all qualified voters, may constitute state action applies with even greater force in the context of jury selection through the use of peremptory challenges. Though the motive of a peremptory challenge may be to protect a private interest, the objective of jury selection proceedings is to determine representation on a governmental body. Were it not for peremptory challenges, there would be no question that the entire process of determining who will serve on the jury constitutes state action. The fact that the government delegates some portion of this power to private litigants does not change the governmental character of the power exercised. The delegation of authority that in Terry occurred without the aid of legislation occurs here through explicit statutory authorization.
We find respondent’s reliance on Polk County v. Dodson (1981) unavailing. In that case, we held that a public defender is not a state actor in his general representation of a criminal defendant, even though he may be in his performance of other official duties. While recognizing the employment relation between the public defender and the government, we noted that the relation is otherwise adversarial in nature. “[A] defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior. Held to the same standards of competence and integrity as a private lawyer, … a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client.”
In the ordinary context of civil litigation in which the government is not a party, an adversarial relation does not exist between the government and a private litigant. In the jury-selection process, the government and private litigants work for the same end. Just as a government employee was deemed a private actor because of his purpose and functions in Dodson, so here a private entity becomes a government actor for the limited purpose of using peremptories during jury selection. The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimination by reason of race.
Our decision in West v. Atkins (1988) provides a further illustration. We held there that a private physician who contracted with a state prison to attend to the inmates’ medical needs was a state actor. He was not on a regular state payroll, but we held his “function[s] within the state system, not the precise terms of his employment, [determined] whether his actions can fairly be attributed to the State.” We noted:
Under state law, the only medical care West could receive for his injury was that provided by the State. If Doctor Atkins misused his power by demonstrating deliberate indifference to West’s serious medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State’s exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care.
In the case before us, the parties do not act pursuant to any contractual relation with the government. Here, as in most civil cases, the initial decision whether to sue at all, the selection of counsel, and any number of ensuing tactical choices in the course of discovery and trial may be without the requisite governmental character to be deemed state action. That cannot be said of the exercise of peremptory challenges, however; when private litigants participate in the selection of jurors, they serve an important function within the government and act with its substantial assistance. If peremptory challenges based on race were permitted, persons could be required by summons to be put at risk of open and public discrimination as a condition of their participation in the justice system. The injury to excluded jurors would be the direct result of governmental delegation and participation.
Finally, we note that the injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself. Few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds. Within the courtroom, the government invokes its laws to determine the rights of those who stand before it. In full view of the public, litigants press their cases, witnesses give testimony, juries render verdicts, and judges act with the utmost care to ensure that justice is done.
Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality. In the many times we have addressed the problem of racial bias in our system of justice, we have not “questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts.” To permit racial exclusion in this official forum compounds the racial insult inherent in judging a citizen by the color of his or her skin.
* * * * It remains to consider whether a prima facie case of racial discrimination has been established in the case before us, requiring Leesville to offer race-neutral explanations for its peremptory challenges. In Batson, we held that determining whether a prima facie case has been established requires consideration of all relevant circumstances, including whether there has been a pattern of strikes against members of a particular race. The same approach applies in the civil context, and we leave it to the trial courts in the first instance to develop evidentiary rules for implementing our decision.
Notes
1. Are you prepared to articulate the “test” from Edmonson?
2. Using the attorney for Leesville Concrete Company, Inc. as a possible “state actor,” describe other situations in which he might be a state actor and situations in which he clearly would not be a state actor.
3. How would you use the doctrine developed in Batson in your “rule” or “holding” of Edmonson?
Manhattan Community Access Corporation v. Halleck
588 U.S. ___ (2019)
Justice Kavanaugh delivered the opinion of the Court.
The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
This state-action case concerns the public access channels on Time Warner’s [now Spectrum] cable system in Manhattan. Public access channels are available for private citizens to use. The public access channels on Time Warner’s cable system in Manhattan are operated by a private nonprofit corporation known as MNN. The question here is whether MNN—even though it is a private entity—nonetheless is a state actor when it operates the public access channels. In other words, is operation of public access channels on a cable system a traditional, exclusive public function? If so, then the First Amendment would restrict MNN’s exercise of editorial discretion over the speech and speakers on the public access channels.
Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion.
A
Since the 1970s, public access channels have been a regular feature on cable television systems throughout the United States. * * * * Congress passed and President Reagan signed the Cable Communications Policy Act of 1984. The Act authorized state and local governments to require cable operators to set aside channels on their cable systems for public access.
The New York State Public Service Commission regulates cable franchising in New York State and requires cable operators in the State to set aside channels on their cable systems for public access. 16 N.Y. Codes, Rules & Regs. §§ 895.1(f), 895.4(b) (2018). State law requires that use of the public access channels be free of charge and first-come, first-served. Under state law, the cable operator operates the public access channels unless the local government in the area chooses to itself operate the channels or designates a private entity to operate the channels.
Time Warner [now known as Spectrum] operates a cable system in Manhattan. Under state law, Time Warner must set aside some channels on its cable system for public access. New York City (the City) has designated a private nonprofit corporation named Manhattan Neighborhood Network, commonly referred to as MNN, to operate Time Warner’s public access channels in Manhattan. This case involves a complaint against MNN regarding its management of the public access channels.
B
Because this case comes to us on a motion to dismiss, we accept the allegations in the complaint as true.
DeeDee Halleck and Jesus Papoleto Melendez produced public access programming in Manhattan. They made a film about MNN’s alleged neglect of the East Harlem community. Halleck submitted the film to MNN for airing on MNN’s public access channels, and MNN later televised the film. Afterwards, MNN fielded multiple complaints about the film’s content. In response, MNN temporarily suspended Halleck from using the public access channels.
Halleck and Melendez soon became embroiled in another dispute with MNN staff. In the wake of that dispute, MNN ultimately suspended Halleck and Melendez from all MNN services and facilities.
Halleck and Melendez then sued MNN, among other parties, in Federal District Court. The two producers claimed that MNN violated their First Amendment free-speech rights when MNN restricted their access to the public access channels because of the content of their film.
MNN moved to dismiss the producers’ First Amendment claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment restrictions on its editorial discretion. The District Court agreed with MNN and dismissed the producers’ First Amendment claim.
The Second Circuit reversed in relevant part. In the majority opinion authored by Judge Newman and joined by Judge Lohier, the court stated that the public access channels in Manhattan are a public forum for purposes of the First Amendment. Reasoning that “public forums are usually operated by governments,” the court concluded that MNN is a state actor subject to First Amendment constraints. Judge Lohier added a concurring opinion, explaining that MNN also qualifies as a state actor for the independent reason that “New York City delegated to MNN the traditionally public function of administering and regulating speech in the public forum of Manhattan’s public access channels.” Judge Jacobs dissented in relevant part, opining that MNN is not a state actor. He reasoned that a private entity’s operation of an open forum for speakers does not render the host entity a state actor. Judge Jacobs further stated that the operation of public access channels is not a traditional, exclusive public function.
We granted certiorari to resolve disagreement among the Courts of Appeals on the question whether private operators of public access cable channels are state actors subject to the First Amendment. Compare 882 F. 3d 300 (case below), with Wilcher v. Akron, 498 F. 3d 516 (6th Cir. 2007); and Alliance for Community Media v. FCC, 56 F. 3d 105 (D.C. Cir. 1995).
II
Ratified in 1791, the First Amendment provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech.” Ratified in 1868, the Fourteenth Amendment makes the First Amendment’s Free Speech Clause applicable against the States. * * * * The text and original meaning of those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.
In accord with the text and structure of the Constitution, this Court’s state-action doctrine distinguishes the government from individuals and private entities. See Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 295–296 (2001). By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty.
Here, the producers claim that MNN, a private entity, restricted their access to MNN’s public access channels because of the content of the producers’ film. The producers have advanced a First Amendment claim against MNN. The threshold problem with that First Amendment claim is a fundamental one: MNN is a private entity.
Relying on this Court’s state-action precedents, the producers assert that MNN is nonetheless a state actor subject to First Amendment constraints on its editorial discretion. Under this Court’s cases, a private entity can qualify as a state actor in a few limited circumstances—including, for example, (i) when the private entity performs a traditional, exclusive public function, see, e.g., Jackson, 419 U.S. at 352–354; (ii) when the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky, 457 U.S. 991, 1004–1005 (1982); or (iii) when the government acts jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 941–942 (1982).
The producers’ primary argument here falls into the first category: The producers contend that MNN exercises a traditional, exclusive public function when it operates the public access channels on Time Warner’s cable system in Manhattan. We disagree.
A
Under the Court’s cases, a private entity may qualify as a state actor when it exercises “powers traditionally exclusively reserved to the State.” Jackson, 419 U.S. at 352. It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function. See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); Jackson, 419 U.S. at 352–353; Evans v. Newton, 382 U.S. 296, 300 (1966).
The Court has stressed that “very few” functions fall into that category. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978). Under the Court’s cases, those functions include, for example, running elections and operating a company town. See Terry v. Adams, 345 U.S. 461, 468–470 (1953) (elections); Marsh v. Alabama, 326 U.S. 501, 505–509 (1946) (company town); Smith v. Allwright, 321 U.S. 649, 662–666 (1944) (elections); Nixon v. Condon, 286 U.S. 73, 84–89 (1932) (elections).* The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. [citations omitted].
The relevant function in this case is operation of public access channels on a cable system. That function has not traditionally and exclusively been performed by government.
Since the 1970s, when public access channels became a regular feature on cable systems, a variety of private and public actors have operated public access channels, including: private cable operators; private nonprofit organizations; municipalities; and other public and private community organizations such as churches, schools, and libraries.
The history of public access channels in Manhattan further illustrates the point. In 1971, public access channels first started operating in Manhattan. Those early Manhattan public access channels were operated in large part by private cable operators, with some help from private nonprofit organizations. Those private cable operators continued to operate the public access channels until the early 1990s, when MNN (also a private entity) began to operate the public access channels.
In short, operating public access channels on a cable system is not a traditional, exclusive public function within the meaning of this Court’s cases.
* {Court’s footnote 1}Relatedly, this Court has recognized that a private entity may, under certain circumstances, be deemed a state actor when the government has outsourced one of its constitutional obligations to a private entity. In West v. Atkins, for example, the State was constitutionally obligated to provide medical care to prison inmates. 487 U. S. 42, 56 (1988). That scenario is not present here because the government has no such obligation to operate public access channels.
B
To avoid that conclusion, the producers widen the lens and contend that the relevant function here is not simply the operation of public access channels on a cable system, but rather is more generally the operation of a public forum for speech. And according to the producers, operation of a public forum for speech is a traditional, exclusive public function.
That analysis mistakenly ignores the threshold state-action question. When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975) (private theater leased to the city); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 93, 96 (1972) (sidewalks); Hague v. Committee for Industrial Organization, 307 U.S. 496, 515–516 (1939) (streets and parks).
By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine. 424 U.S. at 520–521.
The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs [in the Second Circuit opinion dissenting in part] persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.”
In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.
If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Hudgens, 424 U.S. at 519. Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” F. Mott, American Journalism 55 (3d ed. 1962). That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.2
The producers here are seeking in effect to circumvent this Court’s case law, including Hudgens. But Hudgens is sound, and we therefore reaffirm our holding in that case.3
C
Next, the producers retort that this case differs from Hudgens because New York City has designated MNN to operate the public access channels on Time Warner’s cable system, and because New York State heavily regulates MNN with respect to the public access channels. Under this Court’s cases, however, those facts do not establish that MNN is a state actor.
New York City’s designation of MNN to operate the public access channels is analogous to a government license, a government contract, or a government-granted monopoly. But as the Court has long held, the fact that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor—unless the private entity is performing a traditional, exclusive public function. See, e.g. San Francisco Arts & Athletics, 483 U.S. at 543–544 (exclusive-use rights and corporate charters); Blum, 457 U.S. at 1011 (licenses); Rendell-Baker, 457 U.S. at 840–841 (contracts); Polk County, 454 U.S. at 319, n. 9, and 320–322 (law licenses); Jackson, 419 U.S. at 351–352 (electric monopolies); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 120–121 (1973) (broadcast licenses); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176–177 (1972) (liquor licenses); cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 638–639 (1819) (corporate charters). The same principle applies if the government funds or subsidizes a private entity. See Blum, 457 U.S. at 1011; RendellBaker, 457 U.S. at 840.
Numerous private entities in America obtain government licenses, government contracts, or government-granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities. As this Court’s many state-action cases amply demonstrate, that is not the law. Here, therefore, the City’s designation of MNN to operate the public access channels on Time Warner’s cable system does not make MNN a state actor.
So, too, New York State’s extensive regulation of MNN’s operation of the public access channels does not make MNN a state actor. Under the State’s regulations, air time on the public access channels must be free, and programming must be aired on a first-come, first-served basis. Those regulations restrict MNN’s editorial discretion and in effect require MNN to operate almost like a common carrier. But under this Court’s cases, those restrictions do not render MNN a state actor.
In Jackson v. Metropolitan Edison Co., the leading case on point, the Court stated that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” In that case, the Court held that “a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory,” was not a state actor. The Court explained that the “mere existence” of a “regulatory scheme”—even if “extensive and detailed”—did not render the utility a state actor. Nor did it matter whether the State had authorized the utility to provide electric service to the community, or whether the utility was the only entity providing electric service to much of that community.
This case closely parallels Jackson. Like the electric utility in Jackson, MNN is “a heavily regulated, privately owned” entity. As in Jackson, the regulations do not transform the regulated private entity into a state actor.
Put simply, being regulated by the State does not make one a state actor. See Sullivan, 526 U.S. at 52; Blum, 457 U.S. at 1004; Rendell-Baker, 457 U.S. at 841–842; Jackson, 419 U.S. at 350; Moose Lodge, 407 U.S. at 176–177. As the Court’s cases have explained, the “being heavily regulated makes you a state actor” theory of state action is entirely circular and would significantly endanger individual liberty and private enterprise. The theory would be especially problematic in the speech context, because it could eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their properties or platforms. * * * *
In sum, we conclude that MNN is not subject to First Amendment constraints on how it exercises its editorial discretion with respect to the public access channels. To be sure, MNN is subject to state-law constraints on its editorial discretion (assuming those state laws do not violate a federal statute or the Constitution). If MNN violates those state laws, or violates any applicable contracts, MNN could perhaps face state-law sanctions or liability of some kind. We of course take no position on any potential state-law questions. We simply conclude that MNN, as a private actor, is not subject to First Amendment constraints on how it exercises editorial discretion over the speech and speakers on its public access channels.
III.
Perhaps recognizing the problem with their argument that MNN is a state actor under ordinary state-action principles applicable to private entities and private property, the producers alternatively contend that the public access channels are actually the property of New York City, not the property of Time Warner or MNN. On this theory, the producers say (and the dissent agrees) that MNN is in essence simply managing government property on behalf of New York City.
The short answer to that argument is that the public access channels are not the property of New York City. Nothing in the record here suggests that a government (federal, state, or city) owns or leases either the cable system or the public access channels at issue here. Both Time Warner and MNN are private entities. Time Warner is the cable operator, and it owns its cable network, which contains the public access channels. MNN operates those public access channels with its own facilities and equipment. The City does not own or lease the public access channels, and the City does not possess a formal easement or other property interest in those channels. * * * *
It is true that the City has allowed the cable operator, Time Warner, to lay cable along public rights-of-way in the City. But Time Warner’s access to public rights-of-way does not alter the state-action analysis. * * * * But the same is true for utility providers, such as the electric utility in Jackson. Put simply, a private entity’s permission from government to use public rights-of-way does not render that private entity a state actor.
Having said all that, our point here should not be read too broadly. Under the laws in certain States, including New York, a local government may decide to itself operate the public access channels on a local cable system (as many local governments in New York State and around the country already do), or could take appropriate steps to obtain a property interest in the public access channels. Depending on the circumstances, the First Amendment might then constrain the local government’s operation of the public access channels. We decide only the case before us in light of the record before us.
* * *
[star ellipses in original]
It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.
MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice Sotomayor, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting.
The Court tells a very reasonable story about a case that is not before us. I write to address the one that is.
This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City contracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.
A
A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private company by a local government. A private company cannot enter a local cable market without one.
Cable companies transmit content through wires that stretch “between a transmission facility and the television sets of individual subscribers.” Creating this network of wires is a disruptive undertaking that “entails the use of public rights-of-way and easements.”
New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access channel. New York then requires that those public-access channels be open to all comers on “a first-come, first-served, nondiscriminatory basis.” Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenity and other unprotected content.
B
Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable-franchise agreement. Time Warner received a cable franchise; the City received public-access channels. The agreement also provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the practice of other New York municipalities confirms, could have instead chosen to run the channels itself.
MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president (though only two thus selected today). The City arranged for MNN to receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and other Manhattan cable franchisees. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.”
As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U.S. District Court for the Southern District of New York * * * and alleged that the public-access channels, “[r]equired by state regulation and [the] local franchise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of respondents’ First Amendment rights. * * * *
II
I would affirm the judgment below. * * * * Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation.
A
When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said.
[Sotomayor’s discusses viewpoint discrimination and public forum doctrine under the First Amendment]
[Sotomayor discusses and concludes that public access channels represent a type of property interest of the government that subjects them to the requirements of the First Amendment.]
B
If New York’s public-access channels are a public forum, it follows that New York cannot evade the First Amendment by contracting out administration of that forum to a private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor * * * *
This conclusion follows from the Court’s decision in West v. Atkins, 487 U.S. 42 (1988). The Court in West unanimously held that a doctor hired to provide medical care to state prisoners was a state actor [subject to the Constitution]. Each State must provide medical care to prisoners, the Court explained, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “clothed with the authority of state law.” If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant for state-action inquiry,” by the State’s having incarcerated the prisoner and put his medical care in that doctor’s hands. * * * *
West resolves this case. Although the settings are different, the legal features are the same: When a government (1) makes a choice that triggers constitutional obligations, and then (2) contracts out those constitutional responsibilities to a private entity, that entity—in agreeing to take on the job—becomes a state actor [for purposes of the Constitution].
Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. * * * *
The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See West, 487 U. S., at 55. The First Amendment does not fall silent simply because a government hands off the administration of its constitutional duties to a private actor.
III
The majority acknowledges that the First Amendment could apply when a local government either (1) has a property interest in public-access channels or (2) is more directly involved in administration of those channels than the City is here. And it emphasizes that it “decide[s] only the case before us in light of the record before us.” These case-specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property question against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace. * * * *
More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch * * * *
The majority focuses on Jackson v. Metropolitan Edison Co., 419 U. S. 345 (1974), which is a paradigmatic example of a line of cases that reject [constitutional] liability for private actors that simply operate against a regulatory backdrop. Jackson emphasized that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” * * * *
The Jackson line of cases is inapposite here. MNN is not a private entity that simply ventured into the marketplace. * * * * To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is an independent food seller who just happens to be highly regulated by the restaurant’s owners.
The majority also relies on the Court’s statements that its “public function” test requires that a function have been “traditionally and exclusively performed” by the government. (emphasis deleted). Properly understood, that rule cabins liability in cases such as Jackson in which a private actor ventures of its own accord into territory shared (or regulated) by the government (e.g., by opening a power company or a shopping center). The Court made clear in West that the rule did not reach further, explaining that “the fact that a state employee’s role parallels one in the private sector” does not preclude a finding of state action.
When the government hires an agent, in other words, the question is not whether it hired the agent to do something that can be done in the private marketplace too. If that were the key question, the doctor in West would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively reserved to the State.”
The majority consigns West to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access channels.” The majority suggests that West is different because “the State was constitutionally obligated to provide medical care to prison inmates.” But what the majority ignores is that the State in West had no constitutional obligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it made those prior choices.
The City had a comparable constitutional obligation here—one brought about by its own choices, made against a state-law backdrop. The City, of course, had no constitutional obligation to award a cable franchise or to operate public-access channels. But once the City did award a cable franchise, New York law required the City to obtain public-access channels, and to open them up as a public forum. That is when the City’s obligation to act in accordance with the First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution followed.
* * * * But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the channels to a private entity did render the First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a nonprofit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a municipal theater? What about its parks?
On the other hand, the majority hastens to qualify its decision and to cabin it to the specific facts of this case. Those are prudent limitations. Even so, the majority’s focus on Jackson still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution.
In any event, there should be no confusion here. MNN is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amendment like any other government actor.
IV
This is not a case about bigger governments and smaller individuals, it is a case about principals and agents. New York City opened up a public forum on public-access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself.
While the majority emphasizes that its decision is narrow and factbound, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent.
Check Your Understanding
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VI. Reconsidering The Civil Rights Cases
The Civil Rights Cases
109 U.S. 3 (1883)
(Consolidating: U.S. v Stanley; U.S. v Ryan; U.S. v Nichols; U.S. v Singleton; Robinson and wife v Memphis & Charleston Railroad Company)
Bradley, J., delivered the Opinion of the Court in which Waite, C.J., Miller, Field, Woods, Matthews, Gray, and Blatchford, JJ, joined. Harlan, J., filed a dissenting opinion.
{from the Court’s Syllabus}:
These cases were all founded on the first and second sections of the Act of Congress known as the Civil Rights Act, passed March 1st, 1875, entitled “An Act to protect all citizens in their civil and legal rights.” 18 Stat. 335. Two of the cases, those against Stanley and Nichols, were indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and Singleton, were, one on information, the other an indictment, for denying to individuals the privileges and accommodations of a theatre, the information against Ryan being for refusing a colored person a seat in the dress circle of Maguire’s theatre in San Francisco, and the indictment against Singleton was for denying to another person, whose color was not stated, the full enjoyment of the accommodations of the theatre known as the Grand Opera House in New York, said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude.
The case of Robinson and wife against the Memphis & Charleston R.R. Company was an action brought in the Circuit Court of the United States for the Western District of Tennessee to recover the penalty of five hundred dollars given by the second section of the act, and the gravamen was the refusal by the conductor of the railroad company to allow the wife to ride in the ladies’ car, for the reason, as stated in one of the counts, that she was a person of African descent. * * * *
The Stanley, Ryan, Nichols, and Singleton cases were submitted together by the solicitor general at the last term of court, on the 7th day of November, 1882. There were no appearances, and no briefs filed for the defendants.
The Robinson case was submitted on the briefs at the last term, on the 9th day of March, 1883.
Mr. Justice Bradley delivered the opinion of the Court.
It is obvious that the primary and important question in all the cases is the constitutionality of the law: for if the law is unconstitutional none of the prosecutions can stand.
The sections of the law referred to provide as follows:
SEC. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.
SEC. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offence, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.
Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part.
The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theatres; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theatres, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves. Its effect is to declare, that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens; and vice versa. The second section makes it a penal offence in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section.
Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. The power is sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished Senators, advanced whilst the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have.
The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character, and prohibitory upon the States. It declares that:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect. * * * *
[U]ntil some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity: for the prohibitions of the amendment are against State laws and acts done under State authority. Of course, legislation may, and should be, provided in advance to meet the exigency when it arises; but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have), are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.
An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the States. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offences, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in States which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities.
If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not Congress with equal show of authority enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property? If it is supposable that the States may deprive persons of life, liberty, and property without due process of law (and the amendment itself does suppose this), why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theatres? The truth is, that the implication of a power to legislate in this manner is based upon the assumption that if the States are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such State legislation or action. The assumption is certainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.
* * * * [I]t is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow citizen; but, unless protected in these wrongful acts by some shield of State law or State authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the State where the wrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the State by prohibiting such laws, it is not individual offences, but abrogation and denial of rights, which it denounces, and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights, for which the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.
* * * * [I]t is clear that the law in question cannot be sustained by any grant of legislative power made to Congress by the Fourteenth Amendment. That amendment prohibits the States from denying to any person the equal protection of the laws, and declares that Congress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse State legislation on the subject, declares that all persons shall be entitled to equal accommodations and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen such equal accommodations and privileges. This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces State legislation on the same subject, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed Congress with plenary power over the whole subject, is not now the question. What we have to decide is, whether such plenary power has been conferred upon Congress by the Fourteenth Amendment; and, in our judgment, it has not.
We have discussed the question presented by the law on the assumption that a right to enjoy equal accommodation and privileges in all inns, public conveyances, and places of public amusement, is one of the essential rights of the citizen which no State can abridge or interfere with. Whether it is such a right, or not, is a different question which, in the view we have taken of the validity of the law on the ground already stated, it is not necessary to examine.
* * * * But the power of Congress to adopt direct and primary, as distinguished from corrective legislation, on the subject in hand, is sought, in the second place, from the Thirteenth Amendment, which abolishes slavery. This amendment declares “that neither slavery, nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction;” and it gives Congress power to enforce the amendment by appropriate legislation.
This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.
It is true, that slavery cannot exist without law, any more than property in lands and goods can exist without law: and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed, that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States: and upon this assumption it is claimed, that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement; the argument being, that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents, is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theatre, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the Thirteenth Amendment.
In a very able and learned presentation of the cognate question as to the extent of the rights, privileges and immunities of citizens which cannot rightfully be abridged by state laws under the Fourteenth Amendment, made in a former case, a long list of burdens and disabilities of a servile character, incident to feudal vassalage in France, and which were abolished by the decrees of the National Assembly, was presented for the purpose of showing that all inequalities and observances exacted by one man from another were servitudes, or badges of slavery, which a great nation, in its effort to establish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom, which had the force of law, and exacted by one man from another without the latter’s consent. Should any such servitudes be imposed by a state law, there can be no doubt that the law would be repugnant to the Fourteenth, no less than to the Thirteenth Amendment; nor any greater doubt that Congress has adequate power to forbid any such servitude from being exacted.
But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theatre, of its accommodations and privileges to an individual, even though the denial be founded on the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such an act of denial? Whether it might not be a denial of a right which, if sanctioned by the state law, would be obnoxious to the prohibitions of the Fourteenth Amendment, is another question. But what has it to do with the question of slavery?
It may be that by the Black Code (as it was called), in the times when slavery prevailed, the proprietors of inns and public conveyances were forbidden to receive persons of the African race, because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now, however justly it might be deemed an invasion of the party’s legal right as a citizen, and amenable to the prohibitions of the Fourteenth Amendment.
The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master’s will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible form; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens. Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the support which it afterward received from the Fourteenth Amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that at that time (in 1866) Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery.
We must not forget that the province and scope of the Thirteenth and Fourteenth amendments are different; the former simply abolished slavery: the latter prohibited the States from abridging the privileges or immunities of citizens of the United States; from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one, it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all State laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty or property without due process of law, or to deny to any of them the equal protection of the laws. Under the Thirteenth Amendment, the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; under the Fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings.
The only question under the present head, therefore, is, whether the refusal to any persons of the accommodations of an inn, or a public conveyance, or a place of public amusement, by an individual, and without any sanction or support from any State law or regulation, does inflict upon such persons any manner of servitude, or form of slavery, as those terms are understood in this country? Many wrongs may be obnoxious to the prohibitions of the Fourteenth Amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, Would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the right to pursue any peaceful avocations allowed to others. What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not necessarily be so to the Thirteenth, when not involving the idea of any subjection of one man to another. The Thirteenth Amendment has respect, not to distinctions of race, or class, or color, but to slavery. The Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.
* * * * After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or State action, prohibited by the Fourteenth Amendment. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of the Fourteenth Amendment, Congress has full power to afford a remedy under that amendment and in accordance with it.
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens; yet no one, at that time, thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the Thirteenth Amendment (which merely abolishes slavery), but by force of the Thirteenth and Fifteenth Amendments.
On the whole we are of opinion, that no countenance of authority for the passage of the law in question can be found in either the Thirteenth or Fourteenth Amendment of the Constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned.
This conclusion disposes of the cases now under consideration. In the cases of the United States v. Michael Ryan, and of Richard A. Robinson and Wife v. The Memphis Charleston Railroad Company, the judgments must be affirmed. In the other cases, the answer to be given will be that the first and second sections of the act of Congress of March 1st, 1875, entitled “An Act to protect all citizens in their civil and legal rights,” are unconstitutional and void, and that judgment should be rendered upon the several indictments in those cases accordingly.
And it is so ordered.
Mr. Justice Harlan dissenting.
The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. “It is not the words of the law but the internal sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul.” Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.
* * * * The court adjudges, I think erroneously, that Congress is without power, under either the Thirteenth or Fourteenth Amendment, to establish such regulations, and that the first and second sections of the statute are, in all their parts, unconstitutional and void.
* * * * The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed, to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which by universal concession, inhere in a state of freedom? * * * *
That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power to enforce by appropriate legislation the Thirteenth Amendment may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. * * * * I do not contend that the Thirteenth Amendment invests Congress with authority, by legislation, to define and regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several States. But I hold that since slavery, as the court has repeatedly declared, was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment, by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same State; and such legislation may be of a direct and primary character, operating upon States, their officers and agents, and, also, upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the State.
* * * * I am of the opinion that such discrimination practised by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude the imposition of which Congress may prevent under its power, by appropriate legislation, to enforce the Thirteenth Amendment; and, consequently, without reference to its enlarged power under the Fourteenth Amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the Constitution.
It remains now to consider these cases with reference to the power Congress has possessed since the adoption of the Fourteenth Amendment. Much that has been said as to the power of Congress under the Thirteenth Amendment is applicable to this branch of the discussion, and will not be repeated.
* * * * The assumption that this amendment consists wholly of prohibitions upon State laws and State proceedings in hostility to its provisions, is unauthorized by its language. The first clause of the first section—“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside”—is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted, as well citizenship of the United States, as citizenship of the State in which they respectively resided. It introduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the political community known as the “People of the United States.” They became, instantly, citizens of the United States, and of their respective States. * * * *
It is, therefore, an essential inquiry what, if any, right, privilege or immunity was given, by the nation, to colored persons, when they were made citizens of the State in which they reside? Did the constitutional grant of State citizenship to that race, of its own force, invest them with any rights, privileges and immunities whatever? That they became entitled, upon the adoption of the Fourteenth Amendment, “to all privileges and immunities of citizens in the several States,” within the meaning of section 2 of article 4 of the Constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to which, by that clause of the Constitution, they became entitled? To this it may be answered, generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free republican government, such as are “common to the citizens in the latter States under their constitutions and laws by virtue of their being citizens.” * * * *
But what was secured to colored citizens of the United States—as between them and their respective States—by the national grant to them of State citizenship? With what rights, privileges, or immunities did this grant invest them? There is one, if there be no other—exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State. That, surely, is their constitutional privilege when within the jurisdiction of other States. And such must be their constitutional right, in their own State, unless the recent amendments be splendid baubles, thrown out to delude those who deserved fair and generous treatment at the hands of the nation. Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude. * * * *
‘In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial, by these instrumentalities of the State, to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the State, within the meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil rights in question, practically at the mercy of corporations and individuals wielding power under the States.
But the court says that Congress did not, in the act of 1866, assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community. I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern. I agree that if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amenable to the law for his conduct in that regard; for even upon grounds of race, no legal right of a citizen is violated by the refusal of others to maintain merely social relations with him. What I affirm is that no State, nor the officers of any State, nor any corporation or individual wielding power under State authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in those rights, because of their race, or because they once labored under the disabilities of slavery imposed upon them as a race. The rights which Congress, by the act of 1875, endeavored to secure and protect are legal, not social rights. The right, for instance, of a colored citizen to use the accommodations of a public highway, upon the same terms as are permitted to white citizens, is no more a social right than his right, under the law, to use the public streets of a city or a town, or a turnpike road, or a public market, or a post office, or his right to sit in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black races sitting side by side, watching the progress of our business. It would never occur to any one that the presence of a colored citizen in a court-house, or court-room, was an invasion of the social rights of white persons who may frequent such places. And yet, such a suggestion would be quite as sound in law—I say it with all respect—as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of the white race.
* * * * My brethren say, that when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of every race and color. What the nation, through Congress, has sought to accomplish in reference to that race, is—what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more. It was not deemed enough “to help the feeble up, but to support him after.” The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step, in this direction, the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, “for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.” To-day, it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree—for the due enforcement of which, by appropriate legislation, Congress has been invested with express power—every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.
For the reasons stated I feel constrained to withhold my assent to the opinion of the court.
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Further Your Understanding
CALI Lesson:
CALI, The Center for Assisted Legal Instruction, has a lesson designed to further your understanding of the constitutional doctrine, theories, and analysis of state action. The above-linked lesson reviews the basic principles and history of state action doctrine, considers the development of the doctrine in the United States Supreme Court, and examines the Court’s most recent cases. It also considers state action and social media, an issue that has not yet reached the United States Supreme Court. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.01%3A_CHAPTER_ONE-_An_Introduction_to_Constitutional_Law_and_the_Issue_of_State_Action.txt |
I. A Basic Constitutional Timeline
Depending on our individual histories, we each encounter the course Liberty, Equality, and Due Process with different understandings of American history, political philosophy, government, or social justice.
Here is a basic timeline of texts that might be helpful:
The Declaration of Independence, 1776
Authored by Thomas Jefferson, the Declaration’s most famous passage is this:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
The Declaration of Independence also includes a list of grievances regarding Acts of King George III against the “American” colonies; some of these reappear as specific guarantees in the Constitution, for example, the grievance “quartering large bodies of armed troops among us” is echoed in the Third Amendment.
One of the grievances in the draft Declaration by Jefferson is an explicit attack on slavery and the “slave trade”: “He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great Britain. Determined to keep open a market where Men should be bought & sold . . . .”
The Articles of Confederation and Perpetual Union, drafted 1776, ratified by 13 states 1781.
This is the precursor to the United States Constitution, sometimes known as the United States’ “first constitution” or “failed constitution,” usually simply called the “Articles of Confederation.” The generally accepted rationale for the failure of the Articles of Confederation was that the national government was too weak when compared with state governments.
The United States Constitution, including the Bill of Rights, drafted 1787; became effective 1789.
In addition to the text of the Constitution, there are three textual sources that are often cited in historical sources:
The Debates at the Constitutional Convention; The Anti-Federalist Papers (arguments circulated to the states during the ratification process generally against the Constitution); The Federalist Papers (arguments circulated to the states during the ratification process in favor of the Constitution; generally anonymous but attributed and many still influential).
The Constitution structures the federal government into three parts: Article I establishes and concerns the Legislative branch (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” It provides specific enumerated powers to Congress, specific limitations, and provides limitations on the powers of States.)
Article II establishes and concerns the Executive branch (It establishes the office of President and Vice President, the manner of election by “Electors,” specific roles of the President, and impeachment).
Article III establishes and concerns the Judicial Branch (It provides that the “judicial power” is vested in one supreme court and such inferior courts as Congress may establish, extending to “all Cases, in Law and Equity, arising under this Constitution,” and in other instances.)
Articles IV – VII also structure the government.
Article IV regards relations among the states and among “citizens” of each state; Article V pertains to the mode of amendment;
Article VI includes the Supremacy Clause declaring that the Constitution (and the laws made pursuant to the Constitution) are the supreme “Law of the Land”);
Article VII outlines the process for ratification of the Constitution.
The Amendments to the Constitution as originally proposed were twelve; only ten passed and these are known as the Bill of Rights.
The “Reconstruction Amendments,” after the Civil War (1861-1865)
The Thirteenth Amendment (abolition of slavery) (1865)
The Fourteenth Amendment (Citizenship Clause, “No state shall”; Equal Protection, Due Process, Privileges or Immunities) (1868)
The Fifteenth Amendment (voting shall not be deprived on basis of race) (1870)
II. Judicial Review
Judicial review—the power of the judiciary to declare acts of a usually elected legislative or executive body void as unconstitutional—is both a cornerstone and a divisive subject of United States constitutional law. Judicial review is a feature of most, but not all, constitutional democracies in the world, as well as a feature of many nations that are considered less than democratic. In the so-called American model, general courts hear constitutional as well as nonconstitutional issues. In the so-called European model, there is one or more special “Constitutional Court” devoted exclusively to hearing cases challenging the constitutionality of government laws or acts.
In addition to the judicial power to declare legislative (or executive) acts invalid, the question of judicial independence is important. In the federal system, judges are not elected but are nominated by the President and confirmed by the Senate, adding to the anti-democratic critique. Further, in many nations, the term for judges is a definite one, such as ten or twelve years. In the United States Constitution, Article III § 1 provides that federal judges “shall hold their Offices during good Behaviour” which has meant life-tenure, although subject to impeachment. The central concern is that judges be able to exercise independent judgment without fear of reprisal or losing their positions. Simply put, if a judge can be terminated by the Executive, she may be more cautious in ruling that a law signed by the Executive is invalid.
In the United States, Marbury v. Madison (1803) is considered the landmark case that “established” judicial review and is the case that has “tortured generations of law students” as they confront Constitutional Law and the issue of judicial review. It is in virtually every Constitutional Law Casebook in the United States, including this one.
Marbury v. Madison
5 U.S. (1 Cranch) 137 (1803)
Mr. Chief Justice Marshall delivered the opinion of the Court.
At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case requiring the Secretary of State to show cause why a mandamus should not issue directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia. * * * * The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the Court is founded.
In the order in which the Court has viewed this subject, the following questions have been considered and decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is:
1. Has the applicant a right to the commission he demands? * * * *{The Court considered the nomination process and whether it had been followed.} To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. * * * *
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. * * * *
{The Court ultimately concluded that Marbury} having this legal title to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This depends on:
1. The nature of the writ applied for, and
2. The power of this court.
* * * * {The Court ultimately concluded that} This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired:
Whether it can issue from this Court.
The act to establish the judicial courts of the United States authorizes the Supreme Court
“to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”
{This is from Section 13 of the 1789 Judiciary Act, reproduced in the Notes.}The Secretary of State, being a person, holding an office under the authority of the United States, is precisely within the letter of the description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.
The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States.
In the distribution of this power it is declared that
The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.
It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage—is entirely without meaning—if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.
If the solicitude of the Convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will of the Legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the Court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the Constitution.
Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?
There are many other parts of the Constitution which serve to illustrate this subject.
It is declared that “no tax or duty shall be laid on articles exported from any State.” Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law?
The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”
If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?
“No person,’ says the Constitution, ‘shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”
Here the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:
“I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.”
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.
Check Your Understanding
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Notes
1. Marbury is not an easy case, in part because of Chief Justice Marshall’s style. There are many issues in the case and the order in which they are presented is not necessarily logical. But the central feature of the case is the Supreme Court’s power, including the “power” that Congress sought to confer on the Court by § 13 of the Judiciary Act of 1789:
And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
Be prepared to articulate the Court’s holding regarding the statute.
2. While Chief Justice Marshall alludes to the “peculiar delicacy” of the case, that is not apparent from the opinion. The underlying events start with the election of 1800, a contentious election in the early history of the United States, marking the rise of political parties. The Federalist party had been in power, led by John Adams who had lost his re-election for President to Thomas Jefferson, a Republican-Democrat.
John Marshall served as the Secretary of State under Adams. When John Jay declined an offer to resume his position as Chief Justice, Adams nominated Marshall to be the new Chief Justice of the United States Supreme Court. Marshall assumed his position on the Supreme Court on February 4, 1801, and continued to simultaneously serve as Adams’ Secretary of State until March 4, 1801, when Thomas Jefferson was inaugurated as President.
During Adams’ last days in office, he worked to fill the numerous new judicial vacancies created by the lame-duck Congress. Many commentators believe the Federalist’s goal was to take control of the judicial branch, having lost power in the executive and legislative branches.
Marbury filed his original action before the United States Supreme Court in December 1801. In those early days of the Court, the docket was small and the Court should have been able to decide the case promptly. However, the new Congress had abolished the June and December 1802 Terms of the Court and had repealed the Judiciary Act of 1801, which returned the Supreme Court Justices to the busy task of “circuit-riding.” Thus, the Court did not hear Marbury v. Madison until 1803.
3. Scholars have argued that Marbury v. Madison did not “establish” judicial review. For example, William Michael Treanor, in Judicial Review Before Marbury, 58 Stan.L.Rev. 455, 457-58 (2005), examines thirty-one pre-Marbury cases in which a statute was invalidated and seven additional cases in which, although the statute was upheld, one judge concluded that the statute was unconstitutional. The United States Supreme Court itself had previously invalidated a Virginia statute in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), known as the British Debt Case, as inconsistent with the Treaty of Paris. (The Virginia statute had sought to nullify Revolutionary War debts which the treaty had agreed were enforceable). In Federalist No. 78, attributed to Alexander Hamilton, there is an argument for judicial review including the proposition that the United States Supreme Court would be the ultimate arbiter of the Constitution. Note that in Marbury, Chief Justice Marshall implies that judicial review is an inherent feature of the judiciary.
Nevertheless, Marbury is generally cited as the landmark case establishing judicial review. As such, it could be cited by courts whenever they are considering the constitutionality of government actions, but in fact it is cited only occasionally. Consider what circumstances cause a court (or a litigant) to cite Marbury v. Madison.
Further Your Understanding
CALI Lesson: Marbury v. Madison
CALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your understanding of Marbury v. Madison and its relevance. The above-linked lesson includes 25 questions and should take 30 – 45 minutes to complete.
III. Constitutional Interpretation
The question of how courts should interpret the constitution – – – and the question of how we might understand judicial opinions and construct legal arguments – – – is a vexed one. There are many types of constitutional theories, but below is a broad outline.
A. Originalist Theories
Originalist theories generally look to the “framers” of the Constitution to derive meaning. Different types of originalist theories include:
Textualism: Centers the words of the Constitution. Questions include whether the specific phrase has a plain meaning. Broader questions include inquiry into the Constitution as a whole: surrounding content; repeat of the words elsewhere in the Constitution; absent words.
Original intent: Focuses on the framers of the specific phrase. What did they intend.
Original meaning: Broader than original intent, considers what persons at the time would have understood by the specific phrase.
Original purpose: Broader than original intent, considers what the framers of the “ultimately” meant, even if they did not have a specific intent that governs the problem under consideration.
B. Pragmatic Theories
Pragmatic theories, sometimes also called legal process theories, generally consider the place of the courts in a democracy. The two major types of this theory take somewhat opposing perspectives:
Representation-Reinforcement: Championed by John Hart Ely in his famous work Democracy and Distrust, this theory focuses on the role of the unelected federal judicial branch in a democracy. It posits that the role of the courts should be to “reinforce” representative democracy by preventing a tyranny of the majority and thus, ultimately, to forestall violent uprisings by minorities.
Passive Virtues: Championed by Alexander Bickel in his famous work The Least Dangerous Branch, this theory also focuses on the role of the unelected federal judiciary in a democracy. However, it posits that the role of the courts should be to exercise restraint and allow the democratic process to “work itself out” lest the judiciary itself be compromised. Courts should not decide controversies too early and should always decide controversies on the narrowest grounds possible.
C. Evolutive Theories
Evolutive theories generally posit that the Constitution should “evolve.” Under this view, the past may be a guide but should not be determinative. Types of evolutive theory include:
Living Constitutionalism: This theory posits that constitutional meaning evolves and it is subject to reinterpretation by each generation. Justice Stephen Breyer has been a strong advocate of this theory, most notably in his 2005 book, Active Liberty: Interpreting Our Democratic Constitution.
Critical Theories: Like living constitutionalism, these theories advocate for a progressive interpretation, but often from a specific vantage point. For example, Critical Race Theory would advocate that the Constitution enshrined slavery and white supremacy, so present interpretive strategies should attempt to reject that legacy. Similarly, Critical Feminist Theory would advocate that the Constitution erases women and preserves patriarchy, so present interpretive strategies should attempt to reject that legacy. There are also queer, dis/ability, class-based, Native, and other theories.
Popular Constitutionalism: This theory calls for de-centering the judiciary and advocates recognizing how “average people” today understand and enact constitutional norms.
Check Your Understanding
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Notes
1. The late Justice Antonin Scalia, well-known as an orginalist, and Justice Stephen Breyer, advocating living constitutionalism both wrote books advocating their positions and together participated in many public conversations and debates about their respective constitutional interpretative philosophies.
2. Regarding originalist interpretative strategies, consider what type of documentary evidence would be used in making arguments about intent, meaning, and purpose.
3. Judicial activism and judicial restraint overlap with constitutional theories, but theories do not necessarily coincide with “activist” or “restrained” outcomes.
At its most basic, an activist constitutional decision elevates a judicial determination over a democratic one: it declares the “state action” unconstitutional. Likewise, at its most basic, when a court practices judicial restraint, it allows the democratically-enacted government action to stand.
Note also that activist/restrained decisions do not necessarily coincide with “liberal” or “conservative” outcomes. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.02%3A_CHAPTER_TWO-_Introduction_to_Constitutional_Interpretation_and_Judicial_Review.txt |
I. Constitutional Equality Before the Reconstruction Amendments
Recall that although the notion of equality is in the Declaration of Independence, it is not in the Articles of Confederation or the Constitution before the Reconstruction Amendments.
Despite the Constitution’s Preamble, “We the People,” generally speaking, people who counted as “people” in the Constitution were white and male.
As for women, despite Abigail Adams’ well-known letter to her husband John Adams at the Continental Congress in 1776 to “Remember the Ladies,” the Declaration of Independence, Articles of Confederation, and pre-Reconstruction Constitution do not address sex/gender, implicitly assuming a male political body despite a population of roughly 50% women.
As for Native Americans, the Constitution recognizes the sovereignty of Indian Tribes, explicitly in Article I, § 8, cl. 3, which gives Congress (rather than states) the power to “regulate commerce” with “the Indian Tribes” and implicitly in Article VI, the Supremacy Clause, which declares the Constitution supreme, also provides that treaties entered into by the United States “shall be the supreme Law of the Land.” (In 1789, there were at least 9 treaties with Indian nations.)
Most contentious in the Constitution was the status of enslaved persons. The 1789 Constitution enshrined slavery, albeit without ever using the term. Despite the absence of the word, the so-called compromise among the framers of the Constitution regarding slavery appears in a number of provisions.
One of most well-known compromises also implicates women and Native Americans, as well as federal-state relations (federalism) and democracy (another term that does not appear in the Constitution).
Article I § 2 cl. 3, regarding representation in the House of Representatives of Congress, provides:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
This provision itself was itself a compromise regarding how representation among the states in the House of Representatives should be apportioned. The competing proposition was that representation should be linked to commerce or taxes paid to the federal government; this would essentially be representation of states based on their wealth.
Once it was decided it should be people rather than money, however, the question was which people should be counted.
The initial proposal was that population should be “the whole number of white & other free Citizens and inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians paying taxes, in each state.” Supposedly for stylistic reasons, “every age sex & condition” was omitted. As applied, women (and children) were counted as part of the population.
The provision explicitly excluded “Indians not taxed” from being counted in the population to be represented in the House of Representatives of Congress. This assumes that Indians who did not reside on sovereign tribal lands would pay taxes and be part of the population.
The inclusion of all persons who were free (even if not white) or indentured for a term of years in the population calculation recognized both free people of color and all indentured servants. Note that indentured servants were usually Europeans who had obtained passage to the United States. Sometimes this passage was as punishment for a crime or as a release from debtors’ prison. Sometimes persons bought passage for economic advancement or personal reasons; sometimes persons were assigned passage by their families. Indentured servants were to work without pay for a set period, often 7 years, although the term could be extended for infractions including minor crimes, inadequate service, or pregnancy. During the time of servitude one could not “quit,” but one was considered a servant and not property (chattel) and after the term ended one was a free person.
The “three fifths of all other Persons” portion of Article I § 2 cl. 3 is the most infamous. “All other persons” meant enslaved persons. In general, the Northern states in which slavery was minimal wanted slaves to not count as persons; the Southern states in which enslaved persons were a majority of the population wanted slaves to be counted as full persons. This may seem paradoxical, but what was at stake was how large the number of representatives in Congress would be. The compromise was that each enslaved person would be counted as “three-fifths” of a person when calculating the total population as a basis for representation.
Gouverneur Morris (who despite his first name was never governor but was later a United States Senator from New York) famously excoriated such a compromise during the Constitutional Convention: “Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens & let them vote? Are they property? Why then is no other property included?”
However, the presumptive author of Federalist Paper No. 54 James Madison argued that the Constitution was correct to view “our slaves” as possessing “the mixed character of persons and of property.” Madison contended that this was “in fact their true character,” although it was not necessarily a natural one: “it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.”
In addition to Article I § 2 cl. 3, several other provisions in the 1789 Constitution recognized slavery, again without using the term.
First, Article I, § 9, cl. 1 and Article V guaranteed the importation of slaves into the United States until 1808.
Article I, § 9, cl. 1, prohibited Congress from acting. It provided that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”
Article V, regarding amendments to the Constitution, exempted Article I, § 9, cl. 1 from the amendment process until then.
Note that Congress did pass the Act Prohibiting Importation of Slaves of 1807, signed (and championed) by President Thomas Jefferson, which became effective January 1, 1808.
Second, Article IV mandated the recognition of slave status by all states. Article IV is best known for requiring states to give “full faith and credit” to the proceedings of other states and to grant “all privileges and immunities” to citizens of other states, but it also contained the so-called Fugitive Slave Clause. It provided that: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
Lastly, and perhaps most obliquely, the Article I, § 8 powers of Congress include “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” implying the possibility of slave or other rebellions.
II. Litigating Slavery and Equality Before the Reconstruction Amendments
Prigg v. Pennsylvania
41 U.S. (16 Pet.) 539 (1842)
Mr. Justice Story delivered the opinion of the Court.
This is a writ of error to the Supreme Court of Pennsylvania . . . in a case involving the construction of the Constitution and laws of the United States.
The facts are briefly these: The plaintiff in error {Edward Prigg} was indicted in * * * * York County {Pennsylvania} for having, with force and violence, taken and carried away from that county, to the State of Maryland, a certain negro woman, named Margaret Morgan, with a design and intention of selling and disposing of, and keeping her, as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1826. That statute, in the first section, in substance provides that, if any person or persons shall, from and after the passing of the act, by force and violence, take and carry away, or cause to be taken and carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away or seduce, any negro or mulatto from any part of that Commonwealth, with a design and intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of felony, and shall forfeit and pay a sum not less than five hundred, nor more than one thousand dollars, and moreover shall be sentenced to undergo servitude for any term or terms of years, not less than seven years nor exceeding twenty-one years, and shall be confined and kept to hard labor, &c.
There are many other provisions in the statute, which is recited at large in the record but to which it is in our view unnecessary to advert upon the present occasion.
The plaintiff in error pleaded not guilty to the indictment, and, at the trial, the jury found a special verdict which in substance states that the negro woman, Margaret Morgan, was a slave for life, and held to labor and service under and according to the laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland; that the slave escaped and fled from Maryland into Pennsylvania in 1832; that the plaintiff in error, being legally constituted the agent and attorney of the said Margaret Ashmore, in 1837 caused the said negro woman to be taken and apprehended as a fugitive from labor by a state constable under a warrant from a Pennsylvania magistrate; that the said negro woman was thereupon brought before the said magistrate, who refused to take further cognizance of the case; and thereupon the plaintiff in error did remove, take and carry away the said negro woman and her children out of Pennsylvania into Maryland, and did deliver the said negro woman and her children into the custody and possession of the said Margaret Ashmore. The special verdict further finds that one of the children was born in Pennsylvania more than a year after the said negro woman had fled and escaped from Maryland.
Upon this special verdict, the Court of Oyer and Terminer of York County adjudged that the plaintiff in error was guilty of the offense charged in the indictment. A writ of error was brought from that judgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed. From this latter judgment, the present writ of error has been brought to this Court. * * * *
The question arising in the case as to the constitutionality of the statute of Pennsylvania, has been most elaborately argued at the bar. The counsel for the plaintiff in error have contended that the statute of Pennsylvania is unconstitutional, first, because Congress has the exclusive power of legislation upon the subject matter under the Constitution of the United States and under the act of the 12th of February 1793, ch. 51 {the federal Fugitive Slave Act} which was passed in pursuance thereof; secondly, that, if this power is not exclusive in Congress, still the concurrent power of the state legislatures is suspended by the actual exercise of the power of Congress; and thirdly, that, if not suspended, still the statute of Pennsylvania, in all its provisions applicable to this case, is in direct collision with the act of Congress, and therefore, is unconstitutional and void. The counsel for Pennsylvania maintain the negative of all those points.
Few questions which have ever come before this Court involve more delicate and important considerations, and few upon which the public at large may be presumed to feel a more profound and pervading interest. We have accordingly given them our most deliberate examination, and it has become my duty to state the result to which we have arrived, and the reasoning by which it is supported.
Before, however, we proceed to the points more immediately before us, it may be well, in order to clear the case of difficulty, to say that, in the exposition of this part of the Constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will indeed probably be found, when we look to the character of the Constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact, that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights with all the lights and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.
There are two clauses in the Constitution upon the subject of fugitives, which stands in juxtaposition with each other and have been thought mutually to illustrate each other. They are both contained in the second section of the fourth Article, and are in the following words:
“A person charged in any State with treason, felony, or other crime who shall flee from justice and be found in another State shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.”
“No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
The last clause is that the true interpretation whereof is directly in judgment before us. Historically, it is well known that the object of this clause was to secure to the citizens of the slave-holding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slave-holding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.
By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. * * * It is manifest from this consideration that, if the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters—a course which would have created the most bitter animosities and engendered perpetual strife between the different States. The clause was therefore of the last importance to the safety and security of the southern States, and could not have been surrendered by them, without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it—a proof at once of its intrinsic and practical necessity.
How then are we to interpret the language of the clause? The true answer is in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. * * * The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave which no state law or regulation can in any way qualify, regulate, control, or restrain. The slave is not to be discharged from service or labor in consequence of any state law or regulation. Now certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said that any state law or state regulation which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave and the immediate command of his service and labor operates pro tanto a discharge of the slave therefrom. The question can never be how much the slave is discharged from, but whether he is discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right.
We have said that the clause contains a positive and unqualified recognition of the right of the owner in the slave, unaffected by any state law or legislation whatsoever, because there is no qualification or restriction of it to be found therein, and we have no right to insert any which is not expressed and cannot be fairly implied. Especially are we estopped from so doing when the clause puts the right to the service or labor upon the same ground, and to the same extent, in every other State as in the State from which the slave escaped and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own State confer upon him, as property, and we all know that this right of seizure and recaption is universally acknowledged in all the slaveholding States. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to this very subject. * * * *
Upon this ground, we have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave whenever he can do it without any breach of the peace or any illegal violence. In this sense and to this extent, this clause of the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national.
But the clause of the Constitution does not stop here, nor, indeed, consistently with its professed objects, could it do so. * * * And this leads us to the consideration of the other part of the clause, which implies at once a guarantee and duty. It says, “but he [the slave] shall be delivered up on claim of the party to whom such service or labor may be due.” {note: brackets in original} Now we think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some further remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made! What is a claim? It is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. * * *
The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful recaption or delivery? When and under what circumstances shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the State from which he fled?
These and many other questions will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the Constitution guaranties the right, and if it requires the delivery upon the claim of the owner (as cannot well be doubted), the natural inference certainly is that the National Government is clothed with the appropriate authority and functions to enforce it. The fundamental principle, applicable to all cases of this sort, would seem to be that, where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the National Constitution, and not in that of any State. It does not point out any state functionaries, or any state action, to carry its provisions into effect. The States cannot, therefore, be compelled to enforce them, and it might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the National Government, nowhere delegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is, that the National Government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution. * * * *
The remaining question is whether the power of legislation upon this subject is exclusive in the National Government or concurrent in the States until it is exercised by Congress. In our opinion, it is exclusive * * * *
It is scarcely conceivable that the slaveholding States would have been satisfied with leaving to the legislation of the non-slaveholding States a power of regulation, in the absence of that of Congress, which would or might practically amount to a power to destroy the rights of the owner. * * * *
These are some of the reasons, but by no means all, upon which we hold the power of legislation on this subject to be exclusive in Congress. To guard, however, against any possible misconstruction of our views, it is proper to state that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within territorial limits of the States, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration, which is exclusively derived from and secured by the Constitution of the United States and owes its whole efficacy thereto. We entertain no doubt whatsoever that the States, in virtue of their general police power, possesses full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course, and, in many cases, the operations of this police power, although designed generally for other purposes—for protection, safety and peace of the State—may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States, or with the remedies prescribed by Congress to aid and enforce the same.
Upon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is founded is unconstitutional and void. It purports to punish as a public offense against that State the very act of seizing and removing a slave by his master which the Constitution of the United States was designed to justify and uphold. The special verdict finds this fact, and the state courts have rendered judgment against the plaintiff in error upon that verdict. That judgment must, therefore, be reversed, and the cause remanded to the Supreme Court of Pennsylvania with directions to carry into effect the judgment of this Court rendered upon the special verdict, in favor of the plaintiff in error.
Scott v. Sandford
60 US (19 How.) 393 (1857)
{Dred Scott, his wife Harriet, and his daughters, Eliza and Lizzie, were slaves conveyed as property to the defendant, John Sanford, whose name is mistakenly spelled in the case with an extra “d.” In 1834, Scott’s former slaveowner, an Army surgeon named Emerson, had taken him from Missouri, where slavery was legal, to Illinois, where slavery was not legal. They then traveled to Fort Snelling in now-Minnesota (Wisconsin Territory) which had been part Louisiana Purchase, and was north of 36° 30’, an area in which slavery was forbidden by the Missouri Compromise, codified as Act of March 6, 1820, 3 Stat. 545. Dred Scott had married Harriet Scott in Fort Snelling. There were also travels to Louisiana. Emerson brought them back to Missouri and then “sold and conveyed” the Scotts to Sanford. More specific facts from the Opinion are in the Notes.
Scott sued on behalf of himself and his family for freedom based on the argument that residence in a free state and free territory had conferred freedom. He won in a state trial court in Missouri, but the Missouri supreme court reversed. He then brought suit in federal court (the “plea in abatement”) against Sanford, who had moved to New York, on the basis of diversity jurisdiction, allowed in the Constitution by Art. III § 2, which requires that the lawsuit be “between Citizens of different States.” On a writ of error, from an adverse judgment, Dred Scott appealed to the Supreme Court.}
Mr. Chief Justice Taney delivered the opinion of the Court.
* * * * The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied {sic} by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.
It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word “citizen” is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.
The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes and governed by their own laws. * * * *
The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character. * * * * *
This brings us to examine by what provision of the Constitution the present Federal Government, under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United States while it remains a Territory and until it shall be admitted as one of the States of the Union. * * * *
Now, as we have already said in an earlier part of this opinion upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States in every State that might desire it for twenty years. And the Government in express terms is pledged to protect it in all future time if the slave escapes from his owner. This is done in plain words—too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection that property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.
Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident.
We have so far examined the case, as it stands under the Constitution of the United States, and the powers thereby delegated to the Federal Government.
But there is another point in the case which depends on State power and State law. And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States, and being so made free, he was not again reduced to a state of slavery by being brought back to Missouri.
Our notice of this part of the case will be very brief, for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader et al. v. Graham, reported in 10th Howard 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition as free or slave depended upon the laws of Kentucky when they were brought back into that State, and not of Ohio, and that this court had no jurisdiction to revise the judgment of a State court upon its own laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case.
So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status as free or slave depended on the laws of Missouri, and not of Illinois.
* * * * But whatever doubts or opinions may at one time have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant, and that the Circuit Court of the United States had no jurisdiction when, by the laws of the State, the plaintiff was a slave and not a citizen. * * * *
Mr. Justice Curtis, joined by Mr. Justice McLean, dissenting.
I dissent from the opinion pronounced by the Chief Justice, and from the judgment which the majority of the court think it proper to render in this case. * * * *
To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution. Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens. ***
It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that, in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established. * * * *
I dissent, therefore, from that part of the opinion of the majority of the court, in which it is held that a person of African descent cannot be a citizen of the United States; and I regret I must go further, and dissent both from what I deem their assumption of authority to examine the constitutionality of the act of Congress commonly called the Missouri Compromise act, and the grounds and conclusions announced in their opinion. Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the Circuit Court had no jurisdiction, and consequently that this is a case to which the judicial power of the United States does not extend, they have gone on to examine the merits of the case as they appeared on the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of the authority of the court, as described by its repeated decisions and, as I understand, acknowledged in this opinion of the majority of the court. * * * * Nor, in my judgment, will the position that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, bear examination.
Notes
1. The Court’s opinion in what is often known as The Dred Scott Case, provides several renditions of the facts at various points, including this one:
The case, as he himself states it, on the record brought here by his writ of error, is this:
The plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon in the army of the United States. In the year 1834, he took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling from said last-mentioned date until the year 1838.
In the year 1835, Harriet, who is named in the second count of the plaintiff’s declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at said Fort Snelling, unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.
In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the consent of Dr. Emerson, who then claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff’s declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided.
Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them, and each of them, as slaves.
2. There is much legal commentary about the case. For example, Paul Finkelman, Scott v. Sandford: The Court’s Most Dreadful Case and How it Changed History, 82 Chicago-Kent Law Review 3 (2006), recounts the decision and provides extensive background regarding the facts, including some speculation about the Scotts’ decision to sue then (and not previously) as well as some discussion of the lawyers. As Finkelman also notes, the opinions were exceedingly lengthy for that point in history:
Each of the nine Justices on the Court wrote an opinion in the case: only one of a few times before the Civil War that this occurred. The opinions range in size from Justice Robert C. Grier’s half-page concurrence to Justice Benjamin R. Curtis’s seventy-page dissent. Chief Justice Taney’s “Opinion of the Court” is fifty-four pages long. The nine opinions, along with a handful of pages summarizing the lawyers’ arguments, consume 260 pages of U.S. Reports.
Finkelman also notes that while it is an “exaggeration” to say that Dred Scott “caused” the Civil War, surely it played a role in the timing of the war.
3. Would you say that Dred Scott is a “states’ rights” opinion? What about Prigg v. Pennsylvania?
4. Justice Curtis, joined by Justice Mclean, dissenting in Dred Scott, stated that the majority was incorrect to believe that the Constitution was made exclusively for the white race. In support of their conclusion that the Constitution was not made exclusively for the white race, what do the dissenting justices rely upon?
III. The Reconstruction Amendments: full text
AMENDMENT XIII
Passed by Congress January 31, 1865. Ratified December 6, 1865.
Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2.
Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
AMENDMENT XV
Passed by Congress February 26, 1869. Ratified February 3, 1870.
Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.
Check Your Understanding
Let’s consider how the Reconstruction Amendments changed the Constitution and the Court’s interpretations of it in Prigg v. Pennsylvania and Scott v. Sandford.
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IV. Early Cases Applying the Reconstruction Amendments
Strauder v. West Virginia
100 U.S. 303 (1880)
Mr. Justice Strong delivered the opinion of the court.
The plaintiff in error, a colored man, was indicted for murder in the Circuit Court of Ohio County in West Virginia, on the 20th of October, 1874, and, upon trial, was convicted and sentenced. The record was then removed to the Supreme Court of the State, and there the judgment of the Circuit Court was affirmed. The present case is a writ of error to that court, and it is now, in substance, averred that, at the trial in the State court, the defendant (now plaintiff in error) was denied rights to which he was entitled under the Constitution and laws of the United States.
In the Circuit Court of the State, before the trial of the indictment was commenced, the defendant presented his petition, verified by his oath, praying for a removal of the cause into the Circuit Court of the United States, assigning, as ground for the removal, that,
by virtue of the laws of the State of West Virginia, no colored man was eligible to be a member of the grand jury or to serve on a petit jury in the State; that white men are so eligible, and that, by reason of his being a colored man and having been a slave, he had reason to believe, and did believe, he could not have the full and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to him as such citizen on every trial which might take place on the indictment in the courts of the State were much more enhanced than if he was a white man.
This petition was denied by the State court, and the cause was forced to trial.
* * * *The law of the State to which reference was made in the petition for removal and in the several motions was enacted on the 12th of March, 1873 (Acts of 1878, p. 102), and it is as follows:
All white male persons who are twenty-one year of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.
* * * * In this court, several errors have been assigned, and the controlling question underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impaneled without discrimination against his race or color, because of race or color, and, second, if he has such a right and is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States?
It is to be observed that the first of these questions is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of juror by whom he is to be indicted or tried, all persons of his race or color may be excluded by law solely because of their race or color, so that by no possibility can any colored man sit upon the jury.
The questions are important, for they demand a construction of the recent amendment of the Constitution. If the defendant has a right to have a jury selected for the trial of his case without discrimination against all persons of his race or color, because of their race or color, the right, if not created, is protected by those amendments and the legislation of Congress under them. The Fourteenth Amendment ordains that
all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any laws which shall abridge the privilege or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
This is one of a series of constitutional provisions having a common purpose—namely, securing to a race recently emancipated, a race that, through many generations, had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughterhouse Cases, cannot be understood without keeping in view the history of the times when they were adopted and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. discriminations against them had been habitual. It was well known that, in some States, laws making such discrimination then existed, and others might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and, as such, they needed the protection which a wise government extend to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that, under the law, are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. * * * *
If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them bar law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctively as colored—exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.
That the West Virginia statute respecting juries—the statute that controlled the selection of the grand and petit jury in the case of the plaintiff in error—is such a discrimination ought not to be doubted. Nor would it be if the persons excluded by it were white men. If, in those States where the colored people constitute a majority of the entire population, a law should be enacted excluding all white men from jury service, thus denying to them the privilege of participating fully with the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the laws. Nor, if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment. The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law as jurors because of their color, though they are citizens and may be in other respects fully qualified, is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.
The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine—that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says,
The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter {The Magna Carta}.
It is also guarded by statutory enactments intended to make impossible what Mr. {Jeremy} Bentham called “packing juries.” It is well known that prejudices often exit against particular classes in the community which sway the judgment of jurors and which therefore operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy. Prejudice in a local community is held to be a reason for a change of venue. The framers of the constitutional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was doubtless a motive that led to the amendment. By their manumission and citizenship, the colored race became entitled to the equal protection of the laws of the States in which they resided, and the apprehension that, through prejudice, they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice, that portion of the amendment would have been unnecessary, and it might have been left to the States to extend equality of protection.
In view of these considerations, it is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offence against the State. It is not easy to comprehend how it can be said that, while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?
We do not say that, within the limits from which it is not excluded by the amendment, a State may not prescribe the qualifications of its jurors, and, in so doing, make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. As we have said more than once, its design was to protect an emancipated race, and to strike down all possible legal discriminations against those who belong to it. * * * *
The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory, but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.
Concluding, therefore, that the statute of West Virginia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the State * * * {the Court then discussed the procedure of removal to federal court}.
There was error, therefore, in proceeding to the trial of the indictment against him after his petition was filed as also in overruling his challenge to the array of the jury and in refusing to quash the panel.
The judgment of the Supreme Court of West Virginia will be reversed, and the case remitted with instructions to reverse the judgment of the Circuit Court of Ohio county, and it is
So ordered.
Field, J., dissenting opinion
I dissent from the judgment of the court in this case on the grounds stated in my opinion in Ex parte Virginia {see Note 1}, and Mr. Justice Clifford concurs with me.
Check Your Understanding
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Notes
1. West Virginia v. Strauder is the most famous of the three cases decided by the Court on March 1, 1880, each considering the unconstitutionality of the exclusion of Black males from juries as well as a federal statute providing remedies for such exclusion.
In Ex Parte Virginia, 100 U.S. 339 (1880), the Court had before it the indictment and arrest of a judge who “did then and there exclude and fail to select as grand and petit jurors certain citizens of said county of Pittsylvania, of African race and black color, said citizens possessing all other qualifications prescribed by law, and being by him excluded from the jury lists made out by him as such judge, on account of their race, color, and previous condition of servitude, and for no other reason, against the peace and dignity of the United States, and against the form of the statute of the United States in such case made and provided.” At issue in Ex Parte Virginia was whether the statute was within Congressional power under the Fourteenth Amendment. The Court, in an opinion again by Justice William Strong, held it was, concluding that the judge could be punished:
We do not perceive how holding an office under a State, and claiming to act for the State, can relieve the holder from obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience. We do not perceive how holding an office under a State, and claiming to act for the State, can relieve the holder from obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience.
In Virginia v. Rives, 100 U.S. 313 (1880), the question again involved the Congressional civil rights statute, but this time focused on a provision allowing for removal of a trial from state court to federal court when “any person who is denied or cannot enforce in the judicial tribunals of the State” “any right secured to him by any law providing for the equal civil rights of citizens of the United States.” Yet the Court, in an opinion again by Justice William Strong, found that the allegations of the defendants in the murder trial did not warrant removal:
The assertions in the petition for removal, that the grand jury by which the petitioners were indicted, as well as the jury summoned to try them, were composed wholly of the white race, and that their race had never been allowed to serve as jurors in the county of Patrick {Virginia} in any case in which a colored man was interested, fall short of showing that any civil right was denied, or that there had been any discrimination against the defendants because of their color or race. The facts may have been as stated, and yet the jury which indicted them, and the panel summoned to try them, may have been impartially selected.
Can you discern the difference between Strauder, Ex Parte Virginia, and Virginia v. Rives? Comparing these three cases of 1880, is there a theoretical perspective familiar from our study of “state action doctrine,” including the Civil Rights Cases, decided a few later in 1883?
2. Interestingly, West Virginia was formed when the western portions of Virginia, essentially seceded from Virginia when Virginia voted for the Ordinance of Secession from the United States and joined the Confederate States of America in 1861. West Virginia, whose proposed named had been Kanawha, was admitted to the Union as a state in June 1863, but only after it provided for the emancipation from slavery. After the Civil War ended and Virginia re-entered the United States, Virginia sued West Virginia regarding the creation of West Virginia and the specific inclusion of particular counties. Note that Article IV, Section 3, of the Constitution provides that “no new States shall be formed or erected within the Jurisdiction of any other State … without the Consent of the Legislatures of the States concerned as well as of the Congress.” The United States Supreme Court ruled for West Virginia in Virginia v. West Virginia, 78 U.S. 39 (1871). Why might this history be illuminating given the facts of Strauder?
Plessy v. Ferguson
163 U.S. 537 (1896)
Mr. Justice Brown, after stating the case, delivered the opinion of the court.
This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts
that all railway companies carrying passengers in their coaches in this State shall provide equal but separate accommodations for the white and colored races by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No person or persons, shall be admitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to.
By the second section, it was enacted
that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State.
The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that “nothing in this act shall be construed as applying to nurses attending children of the other race.” The fourth section is immaterial.
The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred. The petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach and take a seat in another assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.
The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States.
1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude—a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services. This amendment was said in the Slaughterhouse Cases, to have been intended primarily to abolish slavery as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade when they amounted to slavery or involuntary servitude, and that the use of the word “servitude” was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency.
So, too, in the Civil Rights Cases, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, properly cognizable by the laws of the State and presumably subject to redress by those laws until the contrary appears. “It would be running the slavery argument into the ground,” said Mr. Justice Bradley,
to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.
A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.
2. By the Fourteenth Amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof are made citizens of the United States and of the State wherein they reside, and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.
* * * *
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.
* * * * The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, it was held that a law of West Virginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon juries was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. * * * *
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.
* * * *
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. * * * *
The judgment of the court below is, therefore,
Affirmed.
Mr. Justice Harlan, dissenting.
By the Louisiana statute the validity of which is here involved, * * * * no colored person is permitted to occupy a seat in a coach assigned to white persons, nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, he is subject to be fined or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors and employees of railroad companies to comply with the provisions of the act.
Only “nurses attending children of the other race” are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant, personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.
While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act “white and colored races” necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.
Thus, the State regulates the use of a public highway by citizens of the United States solely upon the basis of race. * * * *
However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.
In respect of civil rights common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and, under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by everyone within the United States.
The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that
all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,
and that
no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it as declared by the Fifteenth Amendment that
the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely to secure to a race recently emancipated, a race that through many generations have been held in slavery, all the civil rights that the superior race enjoy. * * * *
It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor a to assert the contrary. * * * * If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in streetcars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid and yet, upon grounds of public policy, may well be characterized as unreasonable. * * * *
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; * * * * The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race—a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.
The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. * * * *
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he objecting, and ought never to cease objecting, to the proposition that citizens of the white and black race can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.
The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.
* * * *
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.
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Notes
The Court’s opinion in Plessy v. Ferguson is a betrayal of the Thirteenth and Fourteenth Amendments. It is a widely reviled decision that cements the end of Reconstruction and hobbles the potential for equality expressed in the Reconstruction Amendments.
Plessy is no longer “precedent.” How did that happen as a legal matter? What are the legal strategies available to “dismantle” a case? This is the subject of the next chapter.
Understanding the process of the legal strategies used to dismantle Plessy starts with analyzing the decision itself. Answer the following questions about the opinion:
1. What is the standard of federal judicial review of the state statute used by the Court in Plessy?
2. What are the differing perspectives of the “purpose” of the state statute in the majority and dissenting opinions?
3. What is the Court’s holding in Plessy?
4. How is the notion of “formal equality” deployed in Plessy v. Ferguson in both the majority and dissenting opinions?
5. What theoretical perspectives from the Civil Rights Cases, decided thirteen years earlier, are apparent in Plessy v. Ferguson?
6. Why does Harlan “allude to the Chinese race” in the dissent? | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.03%3A_CHAPTER_THREE-_Slavery_and_Racial_Equality.txt |
I. Toward Strict Scrutiny
A. Carolene Products, Footnote Four
It has been called the “most famous footnote in Constitutional Law” and certainly it is the most famous one in Equal Protection doctrine. The case in which it occurred, United States v. Carolene Products Company, 304 U.S. 144 (1938), did not involve the Equal Protection Clause or racial classifications. Instead, at issue was a federal statute regulating the shipment of “filled milk” (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream). The challenges to the law were based on a lack of Congressional power under the Commerce Clause and a Due Process Clause of the Fifth Amendment violation.
In footnote four, Justice Harlan Stone wrote for the Court:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
B. The Japanese Internment Cases
Hirabayashi v. United States
320 U.S. 81 (1943)
Mr. Chief Justice Stone delivered the opinion of the Court
Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act of Congress of March 21, 1942, 56 Stat. 173, 18 U.S.C. § 97a, which makes it a misdemeanor knowingly to disregard restrictions made applicable by a military commander to persons in a military area prescribed by him as such, all as authorized by an Executive Order of the President.
The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment. * * * *
{The evidence showed that} appellant was born in Seattle in 1918, of Japanese parents who had come from Japan to the United States, and who had never afterward returned to Japan; that he was educated in the Washington public schools and at the time of his arrest was a senior in the University of Washington; that he had never been in Japan or had any association with Japanese residing there.
The evidence showed that appellant had failed to report to the Civil Control Station on May 11 or May 12, 1942, as directed, to register for evacuation from the military area. He admitted failure to do so, and stated it had at all times been his belief that he would be waiving his rights as an American citizen by so doing. The evidence also showed that for like reason he was away from his place of residence after 8:00 p.m. on May 9, 1942. The jury returned a verdict of guilty on both counts and appellant was sentenced to imprisonment for a term of three months on each, the sentences to run concurrently.* * * *
The curfew order which appellant violated, and to which the sanction prescribed by the Act of Congress has been deemed to attach, purported to be issued pursuant to an Executive Order of the President. In passing upon the authority of the military commander to make and execute the order, it becomes necessary to consider in some detail the official action which preceded or accompanied the order and from which it derives its purported authority. * * * *
{We therefore conclude that} Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the Constitution. * * * *
In the critical days of March, 1942, the danger to our war production by sabotage and espionage in this area seems obvious. The German invasion of the Western European countries had given ample warning to the world of the menace of the ‘fifth column.’ Espionage by persons in sympathy with the Japanese Government had been found to have been particularly effective in the surprise attack on Pearl Harbor. At a time of threatened Japanese attack upon this country, the nature of our inhabitants’ attachments to the Japanese enemy was consequently a matter of grave concern. Of the 126,000 persons of Japanese descent in the United States, citizens and non-citizens, approximately 112,000 resided in California, Oregon and Washington at the time of the adoption of the military regulations. Of these approximately two-thirds are citizens because born in the United States. Not only did the great majority of such persons reside within the Pacific Coast states but they were concentrated in or near three of the large cities, Seattle, Portland and Los Angeles, all in Military Area No. 1.
There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population. In addition, large numbers of children of Japanese parentage are sent to Japanese language schools outside the regular hours of public schools in the locality. Some of these schools are generally believed to be sources of Japanese nationalistic propaganda, cultivating allegiance to Japan. Considerable numbers, estimated to be approximately 10,000, of American-born children of Japanese parentage have been sent to Japan for all or a part of their education.
Congress and the Executive, including the military commander, could have attributed special significance, in its bearing on the loyalties of persons of Japanese descent, to the maintenance by Japan of its system of dual citizenship. Children born in the United States of Japanese alien parents, and especially those children born before December 1, 1924, are under many circumstances deemed, by Japanese law, to be citizens of Japan. No official census of those whom Japan regards as having thus retained Japanese citizenship is available, but there is ground for the belief that the number is large.
The large number of resident alien Japanese, approximately one-third of all Japanese inhabitants of the country, are of mature years and occupy positions of influence in Japanese communities. The association of influential Japanese residents with Japanese Consulates has been deemed a ready means for the dissemination of propaganda and for the maintenance of the influence of the Japanese Government with the Japanese population in this country.
As a result of all these conditions affecting the life of the Japanese, both aliens and citizens, in the Pacific Coast area, there has been relatively little social intercourse between them and the white population. The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions.
Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions. * * * *
But appellant insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent.
Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. {citations omitted}. We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others. * * * *
Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew. We cannot close our eyes to the fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry. Nor can we deny that Congress, and the military authorities acting with its authorization, have constitutional power to appraise the danger in the light of facts of public notoriety. We need not now attempt to define the ultimate boundaries of the war power. We decide only the issue as we have defined it—we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power. In this case it is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made. Whether we would have made it is irrelevant. * * * *
The conviction under the second count is without constitutional infirmity. Hence we have no occasion to review the conviction on the first count since, as already stated, the sentences on the two counts are to run concurrently and conviction on the second is sufficient to sustain the sentence. For this reason also it is unnecessary to consider the Government’s argument that compliance with the order to report at the Civilian Control Station did not necessarily entail confinement in a relocation center.
Affirmed.
Mr. Justice Murphy, concurring
* * * * Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war. We cannot close our eyes to the fact that for centuries the Old World has been torn by racial and religious conflicts and has suffered the worst kind of anguish because of inequality of treatment for different groups. There was one law for one and a different law for another. Nothing is written more firmly into our law than the compact of the Plymouth voyagers to have just and equal laws. To say that any group cannot be assimilated is to admit that the great American experiment has failed, that our way of life has failed when confronted with the normal attachment of certain groups to the lands of their forefathers. As a nation we embrace many groups, some of them among the oldest settlements in our midst, which have isolated themselves for religious and cultural reasons.
Today is the first time, so far as I am aware, that we have sustained a substantial restriction of the personal liberty of citizens of the United States based upon the accident of race or ancestry. Under the curfew order here challenged no less than 70,000 American citizens have been placed under a special ban and deprived of their liberty because of their particular racial inheritance. In this sense it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. The result is the creation in this country of two classes of citizens for the purposes of a critical and perilous hour—to sanction discrimination between groups of United States citizens on the basis of ancestry. In my opinion this goes to the very brink of constitutional power.
Except under conditions of great emergency a regulation of this kind applicable solely to citizens of a particular racial extraction would not be regarded as in accord with the requirement of due process of law contained in the Fifth Amendment. * * * *
Korematsu v. United States
323 U.S. 214 (1944)
Mr. Justice Black delivered the opinion of the Court
The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. The Circuit Court of Appeals affirmed and the importance of the constitutional question involved caused us to grant certiorari.
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
* * * * {In Hirabayashi, it was argued that} to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.
In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. * * * *
It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that, at that time, these actions were unjustified.
Affirmed.
Mr. Justice Frankfurter, concurring.
* * * * * To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.
Mr. Justice Roberts, dissenting
I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.
This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. * * * *
Mr. Justice Murphy, dissenting
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power,” and falls into the ugly abyss of racism.
In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. * * * *
It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic, or experience could be marshalled in support of such an assumption.
That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt, rather than bona fide military necessity is evidenced by the Commanding General’s Final Report on the evacuation from the Pacific Coast area. In it, he refers to all individuals of Japanese descent as “subversive,” as belonging to “an enemy race” whose “racial strains are undiluted,” and as constituting “over 112,000 potential enemies . . . at large today” along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise, by their behavior, furnished reasonable ground for their exclusion as a group.
Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.” They are claimed to be given to “emperor worshipping ceremonies,” and to “dual citizenship.” Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty, together with facts as to certain persons being educated and residing at length in Japan. It is intimated that many of these individuals deliberately resided “adjacent to strategic points,” thus enabling them to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so. * * * *
No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group “were unknown and time was of the essence.” Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued, and the last of these “subversive” persons was not actually removed until almost eleven months had elapsed. * * * *
Mr. Justice Jackson, dissenting
* * * * Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case. * * * *
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Notes
1. Be prepared to articulate the standard(s) used by the Court in Hirabayshi and Korematsu? Is it reasonableness or something more “searching” as Carolene Products footnote four suggests would be appropriate?
2. The cases cited in the opinions as support for the proposition that the Court has previously held legislative classification on race alone violative of equal protection include Yick Wo v. Hopkins, which we will discuss later, and Hill v. Texas (1942), holding the exclusion of “negroes” in grand jury service in Texas violated the Equal Protection Clause.
3. Both Gordon Hirabayshi and Fred Korematsu were active in civil rights after World War II, including efforts to obtain reparations and apologies and were honored by Presidential Medals of Freedom.
II. Dismantling Plessy in Education
State of Missouri ex rel. Gaines v. Canada
305 U.S. 337 (1938)
Mr. Chief Justice Hughes delivered the opinion of the Court.
Petitioner Lloyd Gaines, a negro, was refused admission to the School of Law of the State University of Missouri. Asserting that this refusal constituted a denial by the State of the equal protection of the laws in violation of the Fourteenth Amendment of the Federal Constitution, petitioner brought this action for mandamus to compel the curators of the University to admit him. {Note: The Registrar of the law school was named Cy Woodson Canada, who is the Respondent}. On final hearing, an alternative writ was quashed and a peremptory writ was denied by the {state} Circuit Court. The Supreme Court of the State affirmed the judgment. We granted certiorari.
Petitioner is a citizen of Missouri. In August, 1935, he was graduated with the degree of Bachelor of Arts at the Lincoln University, an institution maintained by the State of Missouri for the higher education of negroes. That University has no law school. Upon the filing of his application for admission to the law school of the University of Missouri, the registrar advised him to communicate with the president of Lincoln University and the latter directed petitioner’s attention to § 9622 of the Revised Statutes of Missouri (1929), providing as follows:
May arrange for attendance at university of any adjacent state-tuition fees. Pending the full development of the Lincoln university, the board of curators shall have the authority to arrange for the attendance of negro residents of the state of Missouri at the university of any adjacent state to take any course or to study any subjects provided for at the state university of Missouri, and which are not taught at the Lincoln university and to pay the reasonable tuition fees for such attendance; provided that whenever the board of curators deem it advisable they shall have the power to open any necessary school or department.
Petitioner was advised to apply to the State Superintendent of Schools for aid under that statute. It was admitted on the trial that petitioner’s ‘work and credits at the Lincoln University would qualify him for admission to the School of Law of the University of Missouri if he were found otherwise eligible’. He was refused admission upon the ground that it was ‘contrary to the constitution, laws and public policy of the State to admit a negro as a student in the University of Missouri’. It appears that there are schools of law in connection with the state universities of four adjacent States, Kansas, Nebraska, Iowa and Illinois, where non-resident negroes are admitted.
The clear and definite conclusions of the state court in construing the pertinent state legislation narrow the issue. The action of the curators, who are representatives of the State in the management of the state university must be regarded as state action. The state constitution provides that separate free public schools shall be established for the education of children of African descent (Art. 11, Sec. 3), and by statute separate high school facilities are supplied for colored students equal to those provided for white students. While there is no express constitutional provision requiring that the white and negro races be separated for the purpose of higher education, the state court on a comprehensive review of the state statutes held that it was intended to separate the white and negro races for that purpose also. * * * *
In answering petitioner’s contention that this discrimination constituted a denial of his constitutional right, the state court has fully recognized the obligation of the State to provide negroes with advantages for higher education substantially equal to the advantages afforded to white students. The State has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions. Plessy v. Ferguson. Respondents’ counsel have appropriately emphasized the special solicitude of the State for the higher education of negroes as shown in the establishment of Lincoln University, a state institution well conducted on a plane with the University of Missouri so far as the offered courses are concerned. It is said that Missouri is a pioneer in that field and is the only State in the Union which has established a separate university for negroes on the same basis as the state university for white students. But, commendable as is that action, the fact remains that instruction in law for negroes is not now afforded by the State, either at Lincoln University or elsewhere within the State, and that the State excludes negroes from the advantages of the law school it has established at the University of Missouri.
It is manifest that this discrimination, if not relieved by the provisions we shall presently discuss, would constitute a denial of equal protection. * * * *
The state court stresses the advantages that are afforded by the law schools of the adjacent States, Kansas, Nebraska, Iowa and Illinois, which admit non-resident negroes. * * * * We think that these matters are beside the point. The basic consideration is not as to what sort of opportunities, other States provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color. The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State. The question here is not of a duty of the State to supply legal training, or of the quality of the training which it does supply, but of its duty when it provides such training to furnish it to the residents of the State upon the basis of an equality of right. By the operation of the laws of Missouri a privilege has been created for white law students which is denied to negroes by reason of their race. The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege which the State has set up, and the provision for the payment of tuition fees in another State does not remove the discrimination.
* * * *Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities, each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. * * * *
Here, petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity.
* * * *The judgment of the Supreme Court of Missouri is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Reversed and remanded.
Separate {dissenting} opinion of Mr. Justice McReynolds {joined by Mr. Justice Butler}.
Considering the disclosures of the record, the Supreme Court of Missouri arrived at a tenable conclusion and its judgment should be affirmed. That court well understood the grave difficulties of the situation and rightly refused to upset the settled legislative policy of the State by directing a mandamus. * * * *
Sweatt v. Painter
339 U.S. 629 (1950)
Mr. Chief Justice Vinson delivered the opinion of the {unanimous} Court.
This case {and another} present different aspects of this general question: to what extent does the Equal Protection Clause of the Fourteenth Amendment limit the power of a state to distinguish between students of different races in professional and graduate education in a state university? Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court. * * * *
In the instant case, petitioner filed an application for admission to the University of Texas Law School for the February, 1946, term. His application was rejected solely because he is a Negro. Petitioner thereupon brought this suit for mandamus against the appropriate school officials, respondents here, to compel his admission. At that time, there was no law school in Texas which admitted Negroes.
The state trial court recognized that the action of the State in denying petitioner the opportunity to gain a legal education while granting it to others deprived him of the equal protection of the laws guaranteed by the Fourteenth Amendment. The court did not grant the relief requested, however, but continued the case for six months to allow the State to supply substantially equal facilities. At the expiration of the six months, in December, 1946, the court denied the writ on the showing that the authorized university officials had adopted an order calling for the opening of a law school for Negroes the following February. While petitioner’s appeal was pending, such a school was made available, but petitioner refused to register therein. The Texas Court of Civil Appeals set aside the trial court’s judgment and ordered the cause “remanded generally to the trial court for further proceedings without prejudice to the rights of any party to this suit.”
On remand, a hearing was held on the issue of the equality of the educational facilities at the newly established school as compared with the University of Texas Law School. Finding that the new school offered petitioner “privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at the University of Texas,” the trial court denied mandamus. The Court of Civil Appeals affirmed. Petitioner’s application for a writ of error was denied by the Texas Supreme Court. We granted certiorari, because of the manifest importance of the constitutional issues involved.
The University of Texas Law School, from which petitioner was excluded, was staffed by a faculty of sixteen full-time and three part-time professors, some of whom are nationally recognized authorities in their field. Its student body numbered 850. The library contained over 65,000 volumes. Among the other facilities available to the students were a law review, moot court facilities, scholarship funds, and Order of the Coif affiliation. The school’s alumni occupy the most distinguished positions in the private practice of the law and in the public life of the State. It may properly be considered one of the nation’s ranking law schools.
The law school for Negroes which was to have opened in February, 1947, would have had no independent faculty or library. The teaching was to be carried on by four members of the University of Texas Law School faculty, who were to maintain their offices at the University of Texas while teaching at both institutions. Few of the 10,000 volumes ordered for the library had arrived, nor was there any full-time librarian. The school lacked accreditation.
Since the trial of this case, respondents report the opening of a law school at the Texas State University for Negroes. It is apparently on the road to full accreditation. It has a faculty of five full-time professors; a student body of 23; a library of some 16,500 volumes serviced by a full-time staff; a practice court and legal aid association, and one alumnus who has become a member of the Texas Bar.
Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.
Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.
It may be argued that excluding petitioner from that school is no different from excluding white students from the new law school. This contention overlooks realities. It is unlikely that a member of a group so decisively in the majority, attending a school with rich traditions and prestige which only a history of consistently maintained excellence could command, would claim that the opportunities afforded him for legal education were unequal to those held open to petitioner. * * * *
{P}etitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races. Such education is not available to him in a separate law school as offered by the State. We cannot, therefore, agree with respondents that the doctrine of Plessy v. Ferguson (1896), requires affirmance of the judgment below. Nor need we reach petitioner’s contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation.
We hold that the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School. The judgment is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.
Reversed.
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Brown v. Board of Education of Topeka
347 U.S. 483 (1954)
Mr. Chief Justice Warren delivered the opinion of the {unanimous} Court.
These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.
In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Fergson. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.
The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.
Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then-existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment’s history with respect to segregated schools is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states, and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.
In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of separate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education. * * * * In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff. * * * *
In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.
In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” * * * * Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority {footnote 11; see Notes}. Any language in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.
Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, * * * * for the reargument this Term The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so. * * * *
It is so ordered.
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Bolling v. Sharpe
347 U.S. 497 (1954)
Mr. Chief Justice Warren delivered the opinion of the {unanimous} Court.
This case challenges the validity of segregation in the public schools of the District of Columbia. * * * *
We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools {footnote citation to Brown}. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.
Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect. {footnote citation to Korematsu}. * * * *
Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.
In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution. * * * *
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CALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your understanding of an important principle articulated in Bolling v. Sharpe, the applicability of the Equal Protection Clause to the federal government, a constitutional doctrine often known as “reverse incorporation.”
Brown v. Board of Education of Topeka (Brown II)
349 U.S. 294 (1955)
Mr. Chief Justice Warren delivered the opinion of the {unanimous} Court.
{The Court’s previous opinions in Brown I} declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.* * * *
Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.
In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.
* * * *The cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. * * * *
It is so ordered.
Notes
1. Be prepared to articulate the holding of Bolling v. Sharpe with regard to the Fifth Amendment and the Fourteenth Amendment’s Equal Protection Clause. This is sometimes called “reverse incorporation.”
2. Footnote 11 in Brown I stating that the lower court’s finding was “amply supported by modern authority” provided:
K.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Mid-century White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generallyMyrdal, An American Dilemma (1944).
The first reference is to the famous “doll studies” by Kenneth and Mamie Clark, as explained here:
In the 1940s, psychologists Kenneth and Mamie Clark designed and conducted a series of experiments known colloquially as “the doll tests” to study the psychological effects of segregation on African-American children. {The methodology began as part of Mamie Clark’s masters’ thesis in psychology.}
In the famous “doll studies,” Drs. Clark used four dolls, identical except for color, to test children’s racial perceptions. Their subjects, children between the ages of three to seven, were asked to identify both the race of the dolls and which color doll they prefer. A majority of the children preferred the white doll and assigned positive characteristics to it. The Clarks concluded that “prejudice, discrimination, and segregation” created a feeling of inferiority among African-American children and damaged their self-esteem.
The doll test was only one part of Dr. Clark’s testimony in Brown – it did not constitute the largest portion of his analysis and expert report. His conclusions during his testimony were based on a comprehensive analysis of the most cutting-edge psychology scholarship of the period.
NAACP-LDF, Doctors Kenneth and Mamie Clark and “The Doll Test,”http://www.naacpldf.org/brown-at-60-the-doll-test. The doll study become a “symbol and lightning rod” for Brown; one of the dolls is now displayed in the National Historic Site for Brown v. Board of Education, https://www.nps.gov/brvb/learn/historyculture/clarkdoll.htm Kenneth Clark was a Professor at CUNY (City College) for a number of years and was the first African-American President of the American Psychological Ass’n.
Cooper v. Aaron
358 U.S. 1 (1958)
Opinion of the Court by The Chief Justice, Mr. Justice Black, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Burton, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, and Mr. Justice Whittaker.
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board’s plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions. * * * *
{The school district was preparing to a plan for desegregation even as Arkansas state officials} were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment. First came, in November 1956, an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose ‘in every Constitutional manner the Unconstitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court,’ Ark. Const. Amend. 44, and, through the initiative, a pupil assignment law, Ark. Stats. §§ 80-1519 to 80-1524. Pursuant to this state constitutional command, a law relieving school children from compulsory attendance at racially mixed schools, Ark. Stats. § 80-1525, and a law establishing a State Sovereignty Commission, Ark. Stats. §§ 6-801 to 6-824, were enacted by the General Assembly in February 1957. * * * *
We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position, in essence, was that, because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn and sent to segregated schools, and that all further steps to carry out the Board’s desegregation program be postponed for a period later suggested by the Board to be two and one-half years.
After a hearing, the District Court granted the relief requested by the Board. * * * * {While the proceedings are complex; the Eighth Circuit reversed, but stayed its mandate. The United States Supreme Court granted the petition for certiorari.} “Recognizing the vital importance of a decision of the issues in time to permit arrangements to be made for the 1958-1959 school year, we convened in Special Term on August 28, 1958, and heard oral argument on the respondents’ motions, and also argument of the Solicitor General who, by invitation, appeared for the United States as amicus curiae, and asserted that the Court of Appeals’ judgment was clearly correct. {The Court unanimously affirmed the Eighth Circuit on September 12, 1958, issued a brief per curiam opinion, and this opinion followed on September 29}.
{The Court held that the School Board and Superintendent were state actions bound by the Fourteenth Amendment to comply with Brown}.
What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine. Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.” * * * * No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. * * * *
It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe. The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion, three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.
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Note: Limiting Brown
In Brown II, the Court famously stated that the lower courts would oversee desegregation working with “all deliberate speed.” Plaintiffs represented by various civil rights law firms (including the NAACP Inc. Fund) as well as the Department of Justice brought desegregation lawsuits against school districts in federal court; often there was a “special master” appointed by the federal court as an expert to develop a plan and there were many “consent decrees.” Some school districts were undeniably hostile. For example, Prince Edward County, Virginia closed its public schools rather than comply with Brown: the Court found this violated the Equal Protection Clause in Griffin v. County School Board, 377 U.S. 218 (1964). Some school districts were cooperative; many were a mix and fluctuated.
In the litigation, decisions, and public discourse, rifts were not only between pro-Brown and anti-Brown but became more nuanced. One such divide concerned the ultimate goal: was it racial desegregation or was it racial integration? Another controversy centered on the role of the federal courts and their constitutional power to order remedies. Additionally, the relevance of time changed from accomplishing desegregation in public schools with “all deliberate speed” to tracing responsibility for present segregated conditions (“de facto” segregation) back to mandatory legal (“de jure”) segregation.
A number of cases reached the United States Supreme Court, but the following three are pivotal.
In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), involving schools in the city of Charlotte, North Carolina, and surrounding Mecklenburg County in a district of 550 square miles, a unanimous Supreme Court upheld court-ordered busing of students and transfer of teachers to achieve desegregation. Writing for the Court, Chief Justice Burger stated:
Absent a constitutional violation, there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation.
Nevertheless:
[T]he existence of some small number of one-race, or virtually one-race, schools within a district is not, in and of itself, the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, and will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but, in a system with a history of segregation, the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority’s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.
In Milliken v. Bradley, 418 U.S. 717 (1974), involving Detroit and surrounding areas in Michigan, the district judge had ordered “busing” between the school district of Detroit, which had been subject of a 1970 state law resisting racial desegregation, and 85 other “outlying” school districts in three other counties which had not been subject to any local or state laws regarding racial segregation in schools. The Court, in a majority five Justice opinion by Chief Justice Burger, reversed the remedial busing order across districts:
The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Swann. Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of inter-district segregation. Thus, an inter-district remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances, an inter-district remedy would be appropriate to eliminate the inter-district segregation directly caused by the constitutional violation. Conversely, without an inter-district violation and inter-district effect, there is no constitutional wrong calling for an inter-district remedy.
In other words, there must be a direct nexus of between the constitutional “wrong” and the remedy. In Milliken, the problematical connection is primarily one of “place.” When the case returned to the Court, Milliken II (1977), the Court upheld the district judge’s subsequent remedies that focused on reform only of the Detroit schools.
In Freeman v. Pitts, 498 U.S. 1081 (1992), the Court considered developments arising from a 1969 consent decree seeking to remedy racial segregation in the DeKalb County School System, in suburban Atlanta, Georgia. The question before the Court was whether the DeKalb County system had achieved “unitary” status and could thus be released from court supervision, despite the fact that the schools were not racially integrated.
Writing for the Court majority, Justice Kennedy stated:
That there was racial imbalance in student attendance zones was not tantamount to a showing that the school district was in noncompliance with the decree or with its duties under the law. Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors. Swann. * * * * If the unlawful de jure policy of a school system has been the cause of the racial imbalance in student attendance, that condition must be remedied. The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation. * * * *
Where resegregation is a product not of state action, but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated. Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies. * * * *
As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system. The causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith. In light of its finding that the demographic changes in DeKalb County are unrelated to the prior violation, the District Court was correct to entertain the suggestion that DCSS had no duty to achieve system wide racial balance in the student population.
Some of these principles and cases will resurface in Affirmative Action doctrine later in this chapter.
III. Evaluating Racial Classifications
Note: Strict Scrutiny
Racial classifications receive strict scrutiny, meaning the government interest must be compelling and the means chosen must be narrowly tailored to achieve that interest.
In contrast to strict scrutiny, rational basis scrutiny requires only that the government interest be legitimate and the means chosen to serve that interest be rationally related to it.
The United States Supreme Court does not always use this precise terminology, but it has clearly articulated it in a more than a few cases and it is evinced in many others. This is the terminology used by almost all other courts and lawyers.
Loving v. Virginia
388 U.S. 1 (1967)
Mr. Chief Justice Warren delivered the opinion of the {Unanimous} Court.
This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.
In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 199, the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.
After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment * * * * we noted probable jurisdiction* * * *.
The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 258 of the Virginia Code:
Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.
Section 259, which defines the penalty for miscegenation, provides:
Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.
Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all marriages between “a white person and a colored person” without any judicial proceeding, and §§ 20-54 and 1-14 which, respectively, define “white persons” and “colored persons and Indians” for purposes of the statutory prohibitions. {footnote 4: see Notes} The Lovings have never disputed in the course of this litigation that Mrs. Loving is a “colored person” or that Mr. Loving is a “white person” within the meanings given those terms by the Virginia statutes.
Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a “white person” marrying other than another “white person,” a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants’ statements as to their race are correct, certificates of “racial composition” to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage.
I
In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1965 decision in Naim v. Naim, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State’s legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride,” obviously an endorsement of the doctrine of White Supremacy. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.
While the state court is no doubt correct in asserting that marriage is a social relation subject to the State’s police power, Maynard v. Hill (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska (1923), and Skinner v. Oklahoma (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.
Because we reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York (1949) * * * * {other cases omitted}. In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.
The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s Bureau Bill, which President {Andrew} Johnson vetoed, and the Civil Rights Act of 1866, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes, and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem that, although these historical sources “cast some light” they are not sufficient to resolve the problem;
[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments, and wished them to have the most limited effect.
Brown v. Board of Education (1954). See also Strauder v. West Virginia (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished.
The State finds support for its “equal application” theory in the decision of the Court in Pace v. Alabama (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated “Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.” McLaughlin v. Florida. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases (1873); Strauder v. West Virginia (1880); Ex parte Virginia (1880); Shelley v. Kraemer (1948); Burton v. Wilmington Parking Authority (1961).
There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they cannot conceive of a valid legislative purpose . . . which makes the color of a person’s skin the test of whether his conduct is a criminal offense. McLaughlin v. Florida, (Stewart, J., joined by Douglas, J., concurring).
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
II
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma (1942). See also Maynard v. Hill (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.
These convictions must be reversed.
It is so ordered.
Mr. Justice Stewart, concurring.
I have previously expressed the belief that “it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” McLaughlin v. Florida (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.
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Notes
1. Be prepared to discuss all of the arguments of the parties as well as the Court’s conclusion using the strict scrutiny standard in Loving.
2. Be prepared to discuss the relevance of Footnote 4 of the Court’s opinion in Loving which reads:
Section 20-54 of the Virginia Code provides:
Intermarriage prohibited; meaning of term “white persons.”—It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term “white person” shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.
Va.Code Ann. § 20-54 (1960 Repl. Vol.).
The exception for persons with less than one-sixteenth “of the blood of the American Indian” is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by “the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocathontas. . . .” Plecker, The New Family and Race Improvement, 17 Va.Health Bull., Extra No. 12, at 25-26 (New Family Series No. 5, 1925)* * * *.
Section 1-14 of the Virginia Code provides:
Colored persons and Indians defined.—Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians.
Va.Code Ann. § 1-14 (1960 Repl. Vol.).
3. Section II of the Court’s opinion, which is brief and reproduced in full in the text, will resurface in Due Process Clause doctrine in later chapters.
IV. Neutral Classifications?
Yick Wo v. Hopkins
118 U.S. 356 (1886)
{The 1880 San Francisco Ordinance under which Yick Wo was convicted and imprisoned provided
It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone.
According to the allegations, there were about 320 laundries in the San Francisco, of which about 240 were owned and conducted by subjects of China, and of the whole number, viz., 320, about 310 were constructed of wood, the same material that constitutes nine-tenths of the houses in San Francisco. The case is consolidated with another similar case.}
Mr. Justice Matthews delivered the opinion of the {unanimous} Court.
In the case of the petitioner, brought here by writ of error to the Supreme Court of California, our jurisdiction is limited to the question whether the plaintiff in error has been denied a right in violation of the Constitution, laws, or treaties of the United States. The question whether his imprisonment is illegal under the constitution and laws of the State is not open to us. * * * *
That, however, does not preclude this court from putting upon the ordinances of the supervisors of the county and city of San Francisco an independent construction, for the determination of the question whether the proceedings under these ordinances and in enforcement of them are in conflict with the Constitution and laws of the United States necessarily involves the meaning of the ordinance, which, for that purpose, we are required to ascertain and adjudge.
We are consequently constrained, at the outset, to differ from the Supreme Court of California upon the real meaning of the ordinances in question. That court considered these ordinances as vesting in the board of supervisors a not unusual discretion in granting or withholding their assent to the use of wooden buildings as laundries, to be exercised in reference to the circumstances of each case with a view to the protection of the public against the dangers of fire. We are not able to concur in that interpretation of the power conferred upon the supervisors. * * * *
This erroneous view of the ordinances in question led the Supreme Court of California into the further error of holding that they were justified by the decisions of this court in the cases of Barbier v. Connolly (1885) and Soon Hing v. Crowley (1885). In both of these cases, the ordinance involved was simply a prohibition to carry on the washing and ironing of clothes in public laundries and washhouses within certain prescribed limits of the city and county of San Francisco from ten o’clock at night until six o’clock in the morning of the following day. This provision was held to be purely a police regulation within the competency of any municipality possessed of the ordinary powers belonging to such bodies, a necessary measure of precaution in a city composed largely of wooden buildings like San Francisco, in the application of which there was no invidious discrimination against anyone within the prescribed limits, all persons engaged in the same business being treated alike, and subject to the same restrictions and entitled to the same privileges under similar conditions.
For these reasons, that ordinance was adjudged not to be within the prohibitions of the Fourteenth Amendment to the Constitution of the United States * * * *
The ordinance drawn in question in the present case is of a very different character. It does not prescribe a rule and conditions for the regulation of the use of property for laundry purposes to which all similarly situated may conform. It allows without restriction the use for such purposes of buildings of brick or stone, but, as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupiers into two classes, not having respect to their personal character and qualifications for the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors, and on the other those from whom that consent is withheld at their mere will and pleasure. And both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of living. The ordinance, therefore, also differs from the not unusual case where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns, or places for the sale of spirituous liquors, and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because, in such cases, the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature.
The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the Emperor of China. {Treaty discussion omitted}. The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws. * * * *
The questions we have to consider and decide in these cases, therefore, are to be treated as invoking the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.
It is contended on the part of the petitioners that the ordinances for violations of which they are severally sentenced to imprisonment are void on their face as being within the prohibitions of the Fourteenth Amendment, and, in the alternative, if not so, that they are void by reason of their administration, operating unequally so as to punish in the present petitioners what is permitted to others as lawful, without any distinction of circumstances—an unjust and illegal discrimination, it is claimed, which, though not made expressly by the ordinances, is made possible by them.
When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but, in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision, and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth “may be a government of laws, and not of men.” For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.
There are many illustrations that might be given of this truth, which would make manifest that it was self-evident in the light of our system of jurisprudence. The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.
* * * *
In the present cases, we are not obliged to reason from the probable to the actual, and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust discrimination in their administration. For the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. * * * *
The present cases, as shown by the facts disclosed in the record, are within this class. It appears that both petitioners have complied with every requisite deemed by the law or by the public officers charged with its administration necessary for the protection of neighboring property from fire or as a precaution against injury to the public health. No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood. And while this consent of the supervisors is withheld from them and from two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on the same business under similar conditions. The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution. The imprisonment of the petitioners is, therefore, illegal, and they must be discharged.
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Washington v. Davis
426 U.S. 229 (1976)
Mr. Justice White delivered the opinion of the Court.
This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department. The test was sustained by the District Court but invalidated by the Court of Appeals. We are in agreement with the District Court and hence reverse the judgment of the Court of Appeals.
I
{The issue involved an assertion} that their applications to become officers in the Department had been rejected, and that the Department’s recruiting procedures discriminated on the basis of race against black applicants by a series of practices including, but not limited to, a written personnel test which excluded a disproportionately high number of Negro applicants. These practices were asserted to violate respondents’ rights “under the due process clause of the Fifth Amendment to the United States Constitution * * * *. Defendants answered, and discovery and various other proceedings followed. Respondents then filed a motion for partial summary judgment with respect to the recruiting phase of the case, seeking a declaration that the test administered to those applying to become police officers is “unlawfully discriminatory and thereby in violation of the due process clause of the Fifth Amendment . . . .” No issue under any statute or regulation was raised by the motion. The District of Columbia defendants, petitioners here, and the federal parties also filed motions for summary judgment with respect to the recruiting aspects of the case, asserting that respondents were entitled to relief on neither constitutional nor statutory grounds. The District Court granted petitioners’ and denied respondents’ motions.
According to the findings and conclusions of the District Court, to be accepted by the Department and to enter an intensive 17-week training program, the police recruit was required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on “Test 21,” which is “an examination that is used generally throughout the federal service,” which “was developed by the Civil Service Commission, not the Police Department,” and which was “designed to test verbal ability, vocabulary, reading and comprehension.”
The validity of Test 21 was the sole issue before the court on the motions for summary judgment. The District Court noted that there was no claim of “an intentional discrimination or purposeful discriminatory acts” but only a claim that Test 21 bore no relationship to job performance and “has a highly discriminatory impact in screening out black candidates.” Respondents’ evidence, the District Court said, warranted three conclusions: “(a) The number of black police officers, while substantial, is not proportionate to the population mix of the city. (b) A higher percentage of blacks fail the Test than whites. (c) The Test has not been validated to establish its reliability for measuring subsequent job performance.” This showing was deemed sufficient to shift the burden of proof to the defendants in the action, petitioners here; but the court nevertheless concluded that on the undisputed facts respondents were not entitled to relief. The District Court relied on several factors. Since August 1969, 44% of new police force recruits had been black; that figure also represented the proportion of blacks on the total force and was roughly equivalent to 20- to 29-year-old blacks in the 50-mile radius in which the recruiting efforts of the Police Department had been concentrated. It was undisputed that the Department had systematically and affirmatively sought to enroll black officers many of whom passed the test but failed to report for duty. The District Court rejected the assertion that Test 21 was culturally slanted to favor whites and was “satisfied that the undisputable facts prove the test to be reasonably and directly related to the requirements of the police recruit training program and that it is neither so designed nor operates [sic] to discriminate against otherwise qualified blacks.” It was thus not necessary to show that Test 21 was not only a useful indicator of training school performance but had also been validated in terms of job performance – “The lack of job performance validation does not defeat the Test, given its direct relationship to recruiting and the valid part it plays in this process.” The District Court ultimately concluded that “[t]he proof is wholly lacking that a police officer qualifies on the color of his skin rather than ability” and that the Department “should not be required on this showing to lower standards or to abandon efforts to achieve excellence.”
Having lost on both constitutional and statutory issues in the District Court, respondents brought the case to the Court of Appeals claiming that their summary judgment motion, which rested on purely constitutional grounds, should have been granted. The tendered constitutional issue was whether the use of Test 21 invidiously discriminated against Negroes and hence denied them due process of law contrary to the commands of the Fifth Amendment. The Court of Appeals, addressing that issue, announced that it would be guided by Griggs v. Duke Power Co. (1971), a case involving the interpretation and application of Title VII of the Civil Rights Act of 1964, and held that the statutory standards elucidated in that case were to govern the due process question tendered in this one. The court went on to declare that lack of discriminatory intent in designing and administering Test 21 was irrelevant; the critical fact was rather that a far greater proportion of blacks – four times as many – failed the test than did whites. This disproportionate impact, standing alone and without regard to whether it indicated a discriminatory purpose, was held sufficient to establish a constitutional violation, absent proof by petitioners that the test was an adequate measure of job performance in addition to being an indicator of probable success in the training program, a burden which the court ruled petitioners had failed to discharge. That the Department had made substantial efforts to recruit blacks was held beside the point and the fact that the racial distribution of recent hirings and of the Department itself might be roughly equivalent to the racial makeup of the surrounding community, broadly conceived, was put aside as a “comparison [not] material to this appeal.” The Court of Appeals, over a dissent, accordingly reversed the judgment of the District Court and directed that respondents’ motion for partial summary judgment be granted. We granted the petition for certiorari. * * * *
II
Because the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it, we reverse its judgment in respondents’ favor. * * * *
As the Court of Appeals understood Title VII, employees or applicants proceeding under it need not concern themselves with the employer’s possibly discriminatory purpose but instead may focus solely on the racially differential impact of the challenged hiring or promotion practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.
The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. Bolling v. Sharpe (1954). But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.
Almost 100 years ago, Strauder v. West Virginia (1880), established that the exclusion of Negroes from grand and petit juries in criminal proceedings violated the Equal Protection Clause, but the fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the Clause. “A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.” Akins v. Texas (1945). * * * *
The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. * * * *
This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law’s disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins (1886). It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an “unequal application of the law . . . as to show intentional discrimination.” Akins v. Texas * * * *
Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact – in the jury cases for example, the total or seriously disproportionate exclusion of Negroes from jury venires – may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, McLaughlin v. Florida (1964), that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.
There are some indications to the contrary in our cases. In Palmer v. Thompson (1971), the city of Jackson, Miss., following a court decree to this effect, desegregated all of its public facilities save five swimming pools which had been operated by the city and which, following the decree, were closed by ordinance pursuant to a determination by the city council that closure was necessary to preserve peace and order and that integrated pools could not be economically operated. Accepting the finding that the pools were closed to avoid violence and economic loss, this Court rejected the argument that the abandonment of this service was inconsistent with the outstanding desegregation decree and that the otherwise seemingly permissible ends served by the ordinance could be impeached by demonstrating that racially invidious motivations had prompted the city council’s action. The holding was that the city was not overtly or covertly operating segregated pools and was extending identical treatment to both whites and Negroes. The opinion warned against grounding decision on legislative purpose or motivation, thereby lending support for the proposition that the operative effect of the law rather than its purpose is the paramount factor. But the holding of the case was that the legitimate purposes of the ordinance – to preserve peace and avoid deficits – were not open to impeachment by evidence that the council-men were actually motivated by racial considerations. Whatever dicta the opinion may contain, the decision did not involve, much less invalidate, a statute or ordinance having neutral purposes but disproportionate racial consequences.
Wright v. Council of City of Emporia (1972) also indicates that in proper circumstances, the racial impact of a law, rather than its discriminatory purpose, is the critical factor. That case involved the division of a school district. The issue was whether the division was consistent with an outstanding order of a federal court to desegregate the dual school system found to have existed in the area. The constitutional predicate for the District Court’s invalidation of the divided district was “the enforcement until 1969 of racial segregation in a public school system of which Emporia had always been a part.” There was thus no need to find “an independent constitutional violation.” Citing Palmer v. Thompson, we agreed with the District Court that the division of the district had the effect of interfering with the federal decree and should be set aside.
That neither Palmer nor Wright was understood to have changed the prevailing rule is apparent from Keyes v. School Dist. No. 1, where the principal issue in litigation was whether and to what extent there had been purposeful discrimination resulting in a partially or wholly segregated school system. * * * *
Both before and after Palmer v. Thompson, however, various Courts of Appeals have held in several contexts, including public employment, that the substantially disproportionate racial impact of a statute or official practice standing alone and without regard to discriminatory purpose, suffices to prove racial discrimination violating the Equal Protection Clause absent some justification going substantially beyond what would be necessary to validate most other legislative classifications. The cases impressively demonstrate that there is another side to the issue; but, with all due respect, to the extent that those cases rested on or expressed the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation, we are in disagreement.
As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies “any person . . . equal protection of the laws” simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective police recruits.
Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. Even agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the Department discriminated on the basis of race or that “a police officer qualifies on the color of his skin rather than ability.”
Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be “validated” in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes of applying the Fifth and the Fourteenth Amendments in cases such as this.
A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.
Given that rule, such consequences would perhaps be likely to follow. However, in our view, extension of the rule beyond those areas where it is already applicable by reason of statute, such as in the field of public employment, should await legislative prescription.
As we have indicated, it was error to direct summary judgment for respondents based on the Fifth Amendment.
III
{procedural discussion omitted}
The judgment of the Court of Appeals accordingly is reversed.
So ordered.
Justice Stevens, concurring:
Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation. It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it.
My point in making this observation is to suggest that the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume. I agree, of course, that a constitutional issue does not arise every time some disproportionate impact is shown. On the other hand, when the disproportion is as dramatic as in * * * * Yick Wo v. Hopkins, it really does not matter whether the standard is phrased in terms of purpose or effect. Therefore, although I accept the statement of the general rule in the Court’s opinion, I am not yet prepared to indicate how that standard should be applied in the many cases which have formulated the governing standard in different language.
Justice Brennan, with whom Justice Marshall joins, dissenting.
{Omitted; the dissent argues that the Court of Appeals should be affirmed because petitioners have failed to prove that Test 21 satisfies the applicable statutory standards under Title VII}.
Arlington Heights v. Metropolitan Housing Dev. Corp.
429 U.S. 252 (1977)
Mr. Justice Powell delivered the opinion of the Court.
In 1971, respondent Metropolitan Housing Development Corporation (MHDC) applied to petitioner, the Village of Arlington Heights, Ill., for the rezoning of a 15-acre parcel from single-family to multiple family classification. Using federal financial assistance, MHDC planned to build 190 clustered townhouse units for low- and moderate-income tenants. The Village denied the rezoning request. MHDC, joined by other plaintiffs who are also respondents here, brought suit in the United States District Court for the Northern District of Illinois. They alleged that the denial was racially discriminatory and that it violated, inter alia, the Fourteenth Amendment and the Fair Housing Act of 1968. Following a bench trial, the District Court entered judgment for the Village and respondents appealed. The Court of Appeals for the Seventh Circuit reversed, finding that the “ultimate effect” of the denial was racially discriminatory, and that the refusal to rezone therefore violated the Fourteenth Amendment. We granted the Village’s petition for certiorari and now reverse.
I
Arlington Heights is a suburb of Chicago, located about 26 miles northwest of the downtown Loop area. Most of the land in Arlington Heights is zoned for detached single-family homes, and this is in fact the prevailing land use. The Village experienced substantial growth during the 1960’s, but, like other communities in northwest Cook County, its population of racial minority groups remained quite low. According to the 1970 census, only 27 of the Village’s 64,000 residents were black.
The Clerics of St. Viator, a religious order (Order), own an 80-acre parcel just east of the center of Arlington Heights. Part of the site is occupied by the Viatorian high school, and part by the Order’s three-story novitiate building, which houses dormitories and a Montessori school. Much of the site, however, remains vacant. Since 1959, when the Village first adopted a zoning ordinance, all the land surrounding the Viatorian property has been zoned R-3, a single-family specification with relatively small minimum lot-size requirements. On three sides of the Viatorian land there are single-family homes just across a street; to the east, the Viatorian property directly adjoins the backyards of other single-family homes.
The Order decided in 1970 to devote some of its land to low- and moderate-income housing. Investigation revealed that the most expeditious way to build such housing was to work through a nonprofit developer experienced in the use of federal housing subsidies under § 236 of the National Housing Act. MHDC is such a developer. It was organized in 1968 by several prominent Chicago citizens for the purpose of building low- and moderate-income housing throughout the Chicago area. In 1970, MHDC was in the process of building one § 236 development near Arlington Heights, and already had provided some federally assisted housing on a smaller scale in other parts of the Chicago area.
After some negotiation, MHDC and the Order entered into a 99-year lease and an accompanying agreement of sale covering a 15-acre site in the southeast corner of the Viatorian property. MHDC became the lessee immediately, but the sale agreement was contingent upon MHDC’s securing zoning clearances from the Village and § 236 housing assistance from the Federal Government. If MHDC proved unsuccessful in securing either, both the lease and the contract of sale would lapse. The agreement established a bargain purchase price of \$300,000, low enough to comply with federal limitations governing land-acquisition costs for § 236 housing.
MHDC engaged an architect and proceeded with the project, to be known as Lincoln Green. The plans called for 20 two-story buildings with a total of 190 units, each unit having its own private entrance from the outside. One hundred of the units would have a single bedroom, thought likely to attract elderly citizens. The remainder would have two, three, or four bedrooms. A large portion of the site would remain open, with shrubs and trees to screen the homes abutting the property to the east.
The planned development did not conform to the Village’s zoning ordinance, and could not be built unless Arlington Heights rezoned the parcel to R-5, its multiple family housing classification. Accordingly, MHDC filed with the Village Plan Commission a petition for rezoning, accompanied by supporting materials describing the development and specifying that it would be subsidized under § 236. The materials made clear that one requirement under § 236 is an affirmative marketing plan designed to assure that a subsidized development is racially integrated. MHDC also submitted studies demonstrating the need for housing of this type and analyzing the probable impact of the development. To prepare for the hearings before the Plan Commission and to assure compliance with the Village building code, fire regulations, and related requirements, MHDC consulted with the Village staff for preliminary review of the development. The parties have stipulated that every change recommended during such consultations was incorporated into the plans.
During the spring of 1971, the Plan Commission considered the proposal at a series of three public meetings, which drew large crowds. Although many of those attending were quite vocal and demonstrative in opposition to Lincoln Green, a number of individuals and representatives of community groups spoke in support of rezoning. Some of the comments, both from opponents and supporters, addressed what was referred to as the “social issue”—the desirability or undesirability of introducing at this location in Arlington Heights low- and moderate income housing, housing that would probably be racially integrated.
Many of the opponents, however, focused on the zoning aspects of the petition, stressing two arguments. First, the area always had been zoned single-family, and the neighboring citizens had built or purchased there in reliance on that classification. Rezoning threatened to cause a measurable drop in property value for neighboring sites. Second, the Village’s apartment policy, adopted by the Village Board in 1962 and amended in 1970, called for R-5 zoning primarily to serve as a buffer between single-family development and land uses thought incompatible, such as commercial or manufacturing districts. Lincoln Green did not meet this requirement, as it adjoined no commercial or manufacturing district.
At the close of the third meeting, the Plan Commission adopted a motion to recommend to the Village’s Board of Trustees that it deny the request. The motion stated: “While the need for low and moderate income housing may exist in Arlington Heights or its environs, the Plan Commission would be derelict in recommending it at the proposed location.”
Two members voted against the motion and submitted a minority report, stressing that, in their view, the change to accommodate Lincoln Green represented “good zoning.” The Village Board met on September 28, 1971, to consider MHDC’s request and the recommendation of the Plan Commission. After a public hearing, the Board denied the rezoning by a 6-1 vote.
The following June, MHDC and three Negro individuals filed this lawsuit against the Village, seeking declaratory and injunctive relief. A second nonprofit corporation and an individual of Mexican-American descent intervened as plaintiffs.
The trial resulted in a judgment for petitioners. Assuming that MHDC had standing to bring the suit, the District Court held that the petitioners were not motivated by racial discrimination or intent to discriminate against low income groups when they denied rezoning, but rather by a desire “to protect property values and the integrity of the Village’s zoning plan.” The District Court concluded also that the denial would not have a racially discriminatory effect.
A divided Court of Appeals reversed. It first approved the District Court’s finding that the defendants were motivated by a concern for the integrity of the zoning plan, rather than by racial discrimination. Deciding whether their refusal to rezone would have discriminatory effects was more complex. The court observed that the refusal would have a disproportionate impact on blacks. Based upon family income, blacks constituted 40% of those Chicago area residents who were eligible to become tenants of Lincoln Green, although they composed a far lower percentage of total area population. * * * * {T}he Court of Appeals ruled that the denial of rezoning must be examined in light of its “historical context and ultimate effect.” Northwest Cook County was enjoying rapid growth in employment opportunities and population, but it continued to exhibit a high degree of residential segregation. The court held that Arlington Heights could not simply ignore this problem. Indeed, it found that the Village had been “exploiting” the situation by allowing itself to become a nearly all-white community. The Village had no other current plans for building low- and moderate-income housing, and no other R-5 parcels in the Village were available to MHDC at an economically feasible price.
Against this background, the Court of Appeals ruled that the denial of the Lincoln Green proposal had racially discriminatory effects and could be tolerated only if it served compelling interests. Neither the buffer policy nor the desire to protect property values met this exacting standard. The court therefore concluded that the denial violated the Equal Protection Clause of the Fourteenth Amendment.
II
{standing discussion omitted}
III
Our decision last Term, in Washington v. Davis (1976) made it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. “Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.” Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Although some contrary indications may be drawn from some of our cases, the holding in Davis reaffirmed a principle well established in a variety of contexts.
Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action—whether it “bears more heavily on one race than another,” Washington v. Davis,—may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins (1886). The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Yick Wo, impact alone is not determinative, and the Court must look to other evidence.
The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes. For example, if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC’s plan to erect integrated housing, we would have a far different case. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.
The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances, the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege.
The foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed. With these in mind, we now address the case before us.
IV
This case was tried in the District Court and reviewed in the Court of Appeals before our decision in Washington v. Davis. The respondents proceeded on the erroneous theory that the Village’s refusal to rezone carried a racially discriminatory effect and was, without more, unconstitutional. But both courts below understood that at least part of their function was to examine the purpose underlying the decision.
In making its findings on this issue, the District Court noted that some of the opponents of Lincoln Green who spoke at the various hearings might have been motivated by opposition to minority groups. The court held, however, that the evidence “does not warrant the conclusion that this motivated the defendants.”
On appeal, the Court of Appeals focused primarily on respondents’ claim that the Village’s buffer policy had not been consistently applied and was being invoked with a strictness here that could only demonstrate some other underlying motive. The court concluded that the buffer policy, though not always applied with perfect consistency, had on several occasions formed the basis for the Board’s decision to deny other rezoning proposals. “The evidence does not necessitate a finding that Arlington Heights administered this policy in a discriminatory manner.” The Court of Appeals therefore approved the District Court’s findings concerning the Village’s purposes in denying rezoning to MHDC.
We also have reviewed the evidence. The impact of the Village’s decision does arguably bear more heavily on racial minorities. Minorities constitute 18% of the Chicago area population, and 40% of the income groups said to be eligible for Lincoln Green. But there is little about the sequence of events leading up to the decision that would spark suspicion. The area around the Viatorian property has been zoned R-3 since 1959, the year when Arlington Heights first adopted a zoning map. Single-family homes surround the 80-acre site, and the Village is undeniably committed to single-family homes as its dominant residential land use. The rezoning request progressed according to the usual procedures. The Plan Commission even scheduled two additional hearings, at least in part to accommodate MHDC and permit it to supplement its presentation with answers to questions generated at the first hearing.
The statements by the Plan Commission and Village Board members, as reflected in the official minutes, focused almost exclusively on the zoning aspects of the MHDC petition, and the zoning factors on which they relied are not novel criteria in the Village’s rezoning decisions. There is no reason to doubt that there has been reliance by some neighboring property owners on the maintenance of single-family zoning in the vicinity. The Village originally adopted its buffer policy long before MHDC entered the picture, and has applied the policy too consistently for us to infer discriminatory purpose from its application in this case. Finally, MHDC called one member of the Village Board to the stand at trial. Nothing in her testimony supports an inference of invidious purpose.
In sum, the evidence does not warrant overturning the concurrent findings of both courts below. Respondents simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village’s decision.
This conclusion ends the constitutional inquiry. The Court of Appeals’ further finding that the Village’s decision carried a discriminatory “ultimate effect” is without independent constitutional significance.
V
{Fair Housing Act discussion omitted}
Reversed and remanded.
{Omitted opinions suggested that the decision should have been remanded to the Court of Appeals to reconsider in light of Washington v. Davis}.
Check Your Understanding
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Notes
1. Be prepared to list the factors articulated by the Court in Arlington Heights for determining intent.
2. The Court further explained the intent requirement in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), a challenge to Massachusetts’ veterans’ preference statute regarding civil service positions. In an opinion by Justice Stewart, the Court stated that the decision to grant a preference to veterans was “intentional” and “it cannot seriously be argued that the Legislature of Massachusetts could have been unaware that most veterans are men.” Nevertheless,
“Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group. Yet nothing in the record demonstrates that this preference for veterans was originally devised or subsequently reenacted because it would accomplish the collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service.
To the contrary, the statutory history shows that the benefit of the preference was consistently offered to “any person” who was a veteran. That benefit has been extended to women under a very broad statutory definition of the term veteran.
3. A famous critique of the intent test is articulated by Critical Race Theorist Professor Charles R. Lawrence III, in The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987). Professor Lawrence argues that most racism (and other prejudice) is not overt but is the product of unconscious bias. He suggests that a better method “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance.” Others have suggested that this “symbolic message” test would itself be subject to unconscious bias in its articulation and application.
4. Be prepared to identify the slippery slope rationale articulated by Justice White in Washington v. Davis. Do you agree?
5. Yick Wo (1886) is the most famous of the trio sometimes called “the Chinese Laundry Cases;” the other cases are Barbier v. Connolly, 113 U.S. 27 (1884), and Soon Hing v. Crowley, 113 U.S. 703 (1885), also involving San Francisco. An important principle of these cases is that “subjects of the Emperor of China” and thus all non-citizens were included by the term “person” in the Fourteenth Amendment. Note that the so-called Chinese Exclusion Act, Sess. I, Chap. 126; 22 Stat. 58 (1882), sought to limit immigration and excluded Chinese persons from becoming citizens.
Thus, Yick Wo is a foundational case in two distinct Equal Protection doctrines: intent and non-citizen coverage.
Check Your Understanding
CALI Lesson: Race and Equal Protection
CALI, The Center for Assisted Legal Instruction, has a lesson designed to further your understanding of the constitutional issues, doctrine, and theories regarding the legal treatment of race under the Equal Protection Clause of the Fourteenth Amendment as well as under other constitutional provisions (with the exception of “affirmative action” which is the subject of a separate lesson). This lesson begins with an overview of slavery in constitutional law, proceeds to the early cases under the Reconstruction Amendments, concentrates on the development of the strict scrutiny standard, and considers how seemingly neutral classifications may be deemed to be racial classifications. This completion time for this lesson is approximately 80 minutes. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.04%3A_CHAPTER_FOUR-_Race_and_Equal_Protection__Part_1.txt |
V. Affirmative Action
A. The Standard of Scrutiny
Note: Bakke
The first university affirmative action case to come before the Court was Regents of the University of California v. Bakke, 438 U.S. 265 (1978). It resulted in a highly fractured decision and highlights many of the doctrinal and theoretical issues that continue to permeate affirmative action.
The University of California at Davis Medical School twice rejected Allan Bakke, a white man, for admission for two years. The Medical School’s admissions goal was 100 students, with 16 seats in the “special admissions program” for applicants who wished to be considered as members of a “minority group,” “which the Medical School apparently viewed as “Blacks,” “Chicanos,” “Asians,” and “American Indians.” He sued in California state court on the basis of the Fourteenth Amendment’s Equal Protection Clause, as well as the California constitution, and statutes. The California Supreme Court ruled in his favor on the Equal Protection claim.
The United States Supreme Court’s decision affirmed the California Supreme Court, but there was no clear majority opinion. Justice Powell, however, rendered the “judgment of the Court” – – – yet Justice Powell was the only Justice in this majority judgment who rested his decision on the Equal Protection Clause; the other Justices who ruled in favor of Bakke and against the university rested their decision on Title VI of the Civil Rights Act. On the other hand, four Justices – – – Brennan, White, Marshall, and Blackmun – – – would have ruled that the university special admissions program did not violate the Equal Protection Clause.
Powell contended that strict scrutiny should apply:
En route to this crucial battle over the scope of judicial review, the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a “goal” of minority representation in the Medical School. Respondent, echoing the courts below, labels it a racial quota.
This semantic distinction is beside the point: the special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status.
The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” It is settled beyond question that the rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights, Shelley v. Kraemer. Accord, Missouri ex rel. Gaines v. Canada. The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.
Nevertheless, petitioner argues that the court below erred in applying strict scrutiny to the special admissions program because white males, such as respondent, are not a “discrete and insular minority” requiring extraordinary protection from the majoritarian political process. Carolene Products Co. This rationale, however, has never been invoked in our decisions as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that discreteness and insularity constitute necessary preconditions to a holding that a particular classification is invidious. These characteristics may be relevant in deciding whether or not to add new types of classifications to the list of “suspect” categories or whether a particular classification survives close examination. Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics. We declared as much in the first cases explicitly to recognize racial distinctions as suspect: “Distinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi.
Justice Powell then considered the interests asserted and whether the means chosen (the 16 seats) was narrowly tailored to achieve that interest. The purposes put forward by the university were these:
1. “reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession,”
2. countering the effects of societal discrimination;
3. increasing the number of physicians who will practice in communities currently underserved; and
4. obtaining the educational benefits that flow from an ethnically diverse student body.
Powell rejected the first interest as facially invalid because it prefers one group over another. He concluded that the university did not have a sufficient basis or competency to make a finding of societal discrimination. As to the third, he found that while “a State’s interest in facilitating the health care of its citizens” might be “sufficiently compelling to support the use of a suspect classification,” here there was not a close enough fit because there “is no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.” Finally, Powell concluded that attainment of a diverse student body “clearly is a constitutionally permissible goal for an institution of higher education.” However, again the university program was not sufficiently narrowly tailored for Powell:
It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner’s argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense, the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element. Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder, rather than further, attainment of genuine diversity.
Powell lauded the Harvard College Admissions Program and appended a description of the policy to his opinion.
For the oft-called “Brennan four,” the university’s affirmative action plan should be subject only to intermediate scrutiny rather than strict scrutiny. Generally, intermediate scrutiny requires an important (rather than compelling) government interest that is served by substantially related means (rather than narrowly tailored). While the Brennan four recognized that there was a racial classification, they argued that it was a benign (rather than invidious) classification. They would have held that the University of California at Davis satisfied this intermediate scrutiny standard.
Justice Blackmun, who joined the Brennan four, also wrote separately and stated:
I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy.
Note: Fullilove and Wygant
During the 1980s, the increasingly divisive “affirmative action” debate included the legal issue of how affirmative action programs and policies should be evaluated by courts. The United States Supreme Court’s opinions did little to solve the issue because the Court itself was divided.
In Fullilove v. Klutznick, 448 U.S. 448 (1980), a 6 Justice majority upheld the “minority business enterprise” (MBE) provision of the federal Public Works Employment Act of 1977 which required that, absent an administrative waiver, at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members, defined as United States citizens “who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.” The main plurality opinion, by Chief Justice Burger, joined by two other Justices (White and Powell), concluded that the “remedial” MBE program on its face did not violate the equal protection component of the Due Process Clause of the Fifth Amendment. Burger’s opinion rejected arguments that the MBE program was underinclusive or overinclusive. Three other Justices, in an opinion by Justice Thurgood Marshall and joined by Brennan and Blackmun, concurred, but concluded that the proper inquiry for determining the constitutionality of racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination is whether the classifications serve important governmental objectives and are substantially related to achievement of those objectives.
In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the Court held unconstitutional an exemption to a “last-hired first-fired” collective bargaining provision between a teachers’ union and Board of Education in Jackson, Michigan that sought to maintain the current level of “minority personnel” (defined as “Black, American Indian, Oriental, or Spanish descendancy”). Wygant and other nonminority teachers who faced being laid off, challenged the agreement entered into by the school board. The plurality opinion by Justice Powell, joined by Chief Justice Burger, Justice Rehnquist, and in part by Justice O’Connor), applied strict scrutiny, and held that the lay off plan did not have a strong basis in the evidence that remedial action was necessary to address the school’s own discrimination and that the desire for role models for students was not compelling. Justice White concurred but wrote separately. Four other Justices dissented.
Note that Fullilove challenged an act by Congress (and thus invoked the Fifth Amendment) and Wygnant challenged an act by a subdivision of the state of Michigan (and thus invoked the Fourteenth Amendment).
The next case includes discussions of both Fullilove and Wygant.
City of Richmond v. J.A. Croson Co.
488 U.S. 469 (1989)
O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, in which Rehnquist, C. J., and White, Stevens, and Kennedy, JJ., joined, an opinion with respect to Part II, in which Rehnquist, C. J., and White, J., joined, and an opinion with respect to Parts III-A and V, in which Rehnquist, C. J., and White and Kennedy, JJ., joined.
In this case, we confront once again the tension between the Fourteenth Amendment’s guarantee of equal treatment to all citizens, and the use of race-based measures to ameliorate the effects of past discrimination on the opportunities enjoyed by members of minority groups in our society. In Fullilove v. Klutznick (1980), we held that a congressional program requiring that 10% of certain federal construction grants be awarded to minority contractors did not violate the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. Relying largely on our decision in Fullilove, some lower federal courts have applied a similar standard of review in assessing the constitutionality of state and local minority set-aside provisions under the Equal Protection Clause of the Fourteenth Amendment. * * * * We noted probable jurisdiction in this case to consider * * * * a minority set-aside program adopted by the city of Richmond, Virginia.
I
On April 11, 1983, the Richmond City Council adopted the Minority Business Utilization Plan (the Plan). The Plan required prime contractors to whom the city awarded construction contracts to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises (MBE’s). Ordinance No. 83-69-59, codified in Richmond, Va., City Code, 12-156(a) (1985). The 30% set-aside did not apply to city contracts awarded to minority-owned prime contractors.
The Plan defined an MBE as “[a] business at least fifty-one (51) percent of which is owned and controlled . . . by minority group members.” “Minority group members” were defined as “[c]itizens of the United States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” There was no geographic limit to the Plan; an otherwise qualified MBE from anywhere in the United States could avail itself of the 30% set-aside. The Plan declared that it was “remedial” in nature, and enacted “for the purpose of promoting wider participation by minority business enterprises in the construction of public projects.” The Plan expired on June 30, 1988, and was in effect for approximately five years.
The Plan authorized the Director of the Department of General Services to promulgate rules which “shall allow waivers in those individual situations where a contractor can prove to the satisfaction of the director that the requirements herein cannot be achieved.”* * * *
The Director also promulgated “purchasing procedures” to be followed in the letting of city contracts in accordance with the Plan. Bidders on city construction contracts were provided with a “Minority Business Utilization Plan Commitment Form.” Within 10 days of the opening of the bids, the lowest otherwise responsive bidder was required to submit a commitment form naming the MBE’s to be used on the contract and the percentage of the total contract price awarded to the minority firm or firms. * * * *
The Plan was adopted by the Richmond City Council after a public hearing. Seven members of the public spoke to the merits of the ordinance: five were in opposition, two in favor. Proponents of the set-aside provision relied on a study which indicated that, while the general population of Richmond was 50% black, only 0.67% of the city’s prime construction contracts had been awarded to minority businesses in the 5-year period from 1978 to 1983. It was also established that a variety of contractors’ associations, whose representatives appeared in opposition to the ordinance, had virtually no minority businesses within their membership. The city’s legal counsel indicated his view that the ordinance was constitutional under this Court’s decision in Fullilove * * * *
{J. A. Croson Company (Croson), a mechanical plumbing and heating contractor, had a successful bid for the provision and installation of certain plumbing fixtures at the city jail. But the City decided to rebid the project because Croson could not comply with the MBE requirement, although the company attempted to have a MBE supply fixtures and attempted to get a waiver. Croson sued in federal district court, challenging the constitutionality of the plan. The procedural history included two decisions by the Fourth Circuit Court of Appeals.}
The District Court upheld the Plan in all respects. In its original opinion, a divided panel of the Fourth Circuit Court of Appeals affirmed. Both courts applied a test derived from “the common concerns articulated by the various Supreme Court opinions” in Fullilove and Bakke. Relying on the great deference which this Court accorded Congress’ findings of past discrimination in Fullilove, the panel majority indicated its view that the same standard should be applied to the Richmond City Council. * * * *
Croson sought certiorari from this Court. We granted the writ, vacated the opinion of the Court of Appeals, and remanded the case for further consideration in light of our intervening decision in Wygant v. Jackson Board of Education (1986).
On remand, a divided panel of the Court of Appeals struck down the Richmond set-aside program as violating both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The majority found that the “core” of this Court’s holding in Wygant was that, “[t]o show that a plan is justified by a compelling governmental interest, a municipality that wishes to employ a racial preference cannot rest on broad-brush assumptions of historical discrimination.” As the court read this requirement, “[f]indings of societal discrimination will not suffice; the findings must concern ‘prior discrimination by the government unit involved.’”
In this case, the debate at the city council meeting “revealed no record of prior discrimination by the city in awarding public contracts . . . .” Moreover, the statistics comparing the minority population of Richmond to the percentage of prime contracts awarded to minority firms had little or no probative value in establishing prior discrimination in the relevant market, and actually suggested “more of a political than a remedial basis for the racial preference.” ****
The Court of Appeals went on to hold that even if the city had demonstrated a compelling interest in the use of a race-based quota, the 30% set-aside was not narrowly tailored to accomplish a remedial purpose. The court found that the 30% figure was “chosen arbitrarily” and was not tied to the number of minority subcontractors in Richmond or to any other relevant number. The dissenting judge argued that the majority had “misconstrue[d] and misapplie[d]” our decision in Wygant. We noted probable jurisdiction of the city’s appeal, and we now affirm the judgment.
II
The parties and their supporting amici fight an initial battle over the scope of the city’s power to adopt legislation designed to address the effects of past discrimination. Relying on our decision in Wygant, appellee argues that the city must limit any race-based remedial efforts to eradicating the effects of its own prior discrimination. This is essentially the position taken by the Court of Appeals below. Appellant argues that our decision in Fullilove is controlling, and that as a result the city of Richmond enjoys sweeping legislative power to define and attack the effects of prior discrimination in its local construction industry. We find that neither of these two rather stark alternatives can withstand analysis.
In Fullilove, we upheld the minority set-aside contained in 103(f)(2) of the Public Works Employment Act of 1977, Pub. L. 95-28, 91 Stat. 116, 42 U.S.C. 6701 et seq. (Act) against a challenge based on the equal protection component of the Due Process Clause. The Act authorized a \$4 billion appropriation for federal grants to state and local governments for use in public works projects. The primary purpose of the Act was to give the national economy a quick boost in a recessionary period; funds had to be committed to state or local grantees by September 30, 1977. The Act also contained the following requirement: “‘Except to the extent the Secretary determines otherwise, no grant shall be made under this Act . . . unless the applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises.’” MBE’s were defined as businesses effectively controlled by “citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.”
The principal opinion in Fullilove, written by Chief Justice Burger, did not employ “strict scrutiny” or any other traditional standard of equal protection review. The Chief Justice noted at the outset that although racial classifications call for close examination, the Court was at the same time “bound to approach [its] task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to ‘provide for the . . . general Welfare of the United States’ and ‘to enforce by appropriate legislation,’ the equal protection guarantees of the Fourteenth Amendment.” * * * *
Because of {Congress’s} unique powers, the Chief Justice concluded that “Congress not only may induce voluntary action to assure compliance with existing federal statutory or constitutional antidiscrimination provisions, but also, where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct.”
In reviewing the legislative history behind the Act, the principal opinion focused on the evidence before Congress that a nationwide history of past discrimination had reduced minority participation in federal construction grants. The Chief Justice also noted that Congress drew on its experience under 8(a) of the Small Business Act of 1953, which had extended aid to minority businesses. The Chief Justice concluded that “Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination.”
The second factor emphasized by the principal opinion in Fullilove was the flexible nature of the 10% set-aside. * * * *The Chief Justice indicated that without this fine tuning to remedial purpose, the statute would not have “pass[ed] muster.”
In his concurring opinion, Justice Powell relied on the legislative history adduced by the principal opinion in finding that “Congress reasonably concluded that private and governmental discrimination had contributed to the negligible percentage of public contracts awarded minority contractors.” Justice Powell also found that the means chosen by Congress, particularly in light of the flexible waiver provisions, were “reasonably necessary” to address the problem identified. * * * *
Appellant and its supporting amici rely heavily on Fullilove for the proposition that a city council, like Congress, need not make specific findings of discrimination to engage in race-conscious relief. * * * *
That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate. Section 1 of the Fourteenth Amendment is an explicit constraint on state power, and the States must undertake any remedial efforts in accordance with that provision. To hold otherwise would be to cede control over the content of the Equal Protection Clause to the 50 state legislatures and their myriad political subdivisions. The mere recitation of a benign or compensatory purpose for the use of a racial classification would essentially entitle the States to * * * * insulate any racial classification from judicial scrutiny* * * *. We believe that such a result would be contrary to the intentions of the Framers of the Fourteenth Amendment, who desired to place clear limits on the States’ use of race as a criterion for legislative action, and to have the federal courts enforce those limitations. * * * *
It would seem equally clear, however, that a state or local subdivision (if delegated the authority from the State) has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction. This authority must, of course, be exercised within the constraints of 1 of the Fourteenth Amendment. Our decision in Wygant is not to the contrary. Wygant addressed the constitutionality of the use of racial quotas by local school authorities pursuant to an agreement reached with the local teachers’ union. It was in the context of addressing the school board’s power to adopt a race-based layoff program affecting its own work force that the Wygant plurality indicated that the Equal Protection Clause required “some showing of prior discrimination by the governmental unit involved.” * * * *
Thus, if the city could show that it had essentially become a “passive participant” in a system of racial exclusion practiced by elements of the local construction industry, we think it clear that the city could take affirmative steps to dismantle such a system. It is beyond dispute that any public entity, state or federal, has a compelling interest in assuring that public dollars, drawn from the tax contributions of all citizens, do not serve to finance the evil of private prejudice.
A
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) As this Court has noted in the past, the “rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.” Shelley v. Kraemer (1948). The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race. To whatever racial group these citizens belong, their “personal rights” to be treated with equal dignity and respect are implicated by a rigid rule erecting race as the sole criterion in an aspect of public decisionmaking.
Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are “benign” or “remedial” and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to “smoke out” illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen “fit” this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.
Classification based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility. See Bakke (opinion of Powell, J.) (“[P]referential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relation to individual worth”). We thus reaffirm the view expressed by the plurality in Wygant that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification. * * * *
Even were we to accept a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different groups to defend their interests in the representative process, heightened scrutiny would still be appropriate in the circumstances of this case. One of the central arguments for applying a less exacting standard to “benign” racial classifications is that such measures essentially involve a choice made by dominant racial groups to disadvantage themselves. If one aspect of the judiciary’s role under the Equal Protection Clause is to protect “discrete and insular minorities” from majoritarian prejudice or indifference, see United States v. Carolene Products Co., n. 4 (1938), some maintain that these concerns are not implicated when the “white majority” places burdens upon itself. SeeJ. Ely, Democracy and Distrust 170 (1980).
In this case, blacks constitute approximately 50% of the population of the city of Richmond. Five of the nine seats on the city council are held by blacks. The concern that a political majority will more easily act to the disadvantage of a minority based on unwarranted assumptions or incomplete facts would seem to militate for, not against, the application of heightened judicial scrutiny in this case. * * * *
B
We think it clear that the factual predicate offered in support of the Richmond Plan suffers from the same two defects identified as fatal in Wygant. The District Court found the city council’s “findings sufficient to ensure that, in adopting the Plan, it was remedying the present effects of past discrimination in the construction industry.” Like the “role model” theory employed in Wygant, a generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. It “has no logical stopping point.” Wygant (plurality opinion). “Relief” for such an ill-defined wrong could extend until the percentage of public contracts awarded to MBE’s in Richmond mirrored the percentage of minorities in the population as a whole. * * * *
While there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts in Richmond, Virginia. Like the claim that discrimination in primary and secondary schooling justifies a rigid racial preference in medical school admissions, an amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.
It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination, just as it was sheer speculation how many minority medical students would have been admitted to the medical school at Davis absent past discrimination in educational opportunities. Defining these sorts of injuries as “identified discrimination” would give local governments license to create a patchwork of racial preferences based on statistical generalizations about any particular field of endeavor. * * * *
Finally, the city and the District Court relied on Congress’ finding in connection with the set-aside approved in Fullilove that there had been nationwide discrimination in the construction industry. The probative value of these findings for demonstrating the existence of discrimination in Richmond is extremely limited. By its inclusion of a waiver procedure in the national program addressed in Fullilove, Congress explicitly recognized that the scope of the problem would vary from market area to market area. ***
In sum, none of the evidence presented by the city points to any identified discrimination in the Richmond construction industry. We, therefore, hold that the city has failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race. To accept Richmond’s claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. “Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications . . . .” Bakke (Powell, J.). We think such a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.
The foregoing analysis applies only to the inclusion of blacks within the Richmond set-aside program. There is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the Richmond construction industry. The District Court took judicial notice of the fact that the vast majority of “minority” persons in Richmond were black. It may well be that Richmond has never had an Aleut or Eskimo citizen. The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city’s purpose was not in fact to remedy past discrimination.
If a 30% set-aside was “narrowly tailored” to compensate black contractors for past discrimination, one may legitimately ask why they are forced to share this “remedial relief” with an Aleut citizen who moves to Richmond tomorrow? The gross overinclusiveness of Richmond’s racial preference strongly impugns the city’s claim of remedial motivation.
IV
As noted by the court below, it is almost impossible to assess whether the Richmond Plan is narrowly tailored to remedy prior discrimination since it is not linked to identified discrimination in any way. We limit ourselves to two observations in this regard.
First, there does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting. Many of the barriers to minority participation in the construction industry relied upon by the city to justify a racial classification appear to be race neutral. If MBE’s disproportionately lack capital or cannot meet bonding requirements, a race-neutral program of city financing for small firms would, a fortiori, lead to greater minority participation. The principal opinion in Fullilove found that Congress had carefully examined and rejected race-neutral alternatives before enacting the MBE set-aside. There is no evidence in this record that the Richmond City Council has considered any alternatives to a race-based quota.
Second, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. It rests upon the “completely unrealistic” assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.
Since the city must already consider bids and waivers on a case-by-case basis, it is difficult to see the need for a rigid numerical quota. As noted above, the congressional scheme upheld in Fullilove allowed for a waiver of the set-aside provision where an MBE’s higher price was not attributable to the effects of past discrimination. Based upon proper findings, such programs are less problematic from an equal protection standpoint because they treat all candidates individually, rather than making the color of an applicant’s skin the sole relevant consideration. Unlike the program upheld in Fullilove, the Richmond Plan’s waiver system focuses solely on the availability of MBE’s; there is no inquiry into whether or not the particular MBE seeking a racial preference has suffered from the effects of past discrimination by the city or prime contractors.
Given the existence of an individualized procedure, the city’s only interest in maintaining a quota system rather than investigating the need for remedial action in particular cases would seem to be simple administrative convenience. But the interest in avoiding the bureaucratic effort necessary to tailor remedial relief to those who truly have suffered the effects of prior discrimination cannot justify a rigid line drawn on the basis of a suspect classification. Under Richmond’s scheme, a successful black, Hispanic, or Oriental entrepreneur from anywhere in the country enjoys an absolute preference over other citizens based solely on their race. We think it obvious that such a program is not narrowly tailored to remedy the effects of prior discrimination.
V
Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction. If the city of Richmond had evidence before it that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities, it could take action to end the discriminatory exclusion. Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality’s prime contractors, an inference of discriminatory exclusion could arise. Under such circumstances, the city could act to dismantle the closed business system by taking appropriate measures against those who discriminate on the basis of race or other illegitimate criteria. In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion.
Nor is local government powerless to deal with individual instances of racially motivated refusals to employ minority contractors. Where such discrimination occurs, a city would be justified in penalizing the discriminator and providing appropriate relief to the victim of such discrimination. Moreover, evidence of a pattern of individual discriminatory acts can, if supported by appropriate statistical proof, lend support to a local government’s determination that broader remedial relief is justified.
Even in the absence of evidence of discrimination, the city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races would open the public contracting market to all those who have suffered the effects of past societal discrimination or neglect. Many of the formal barriers to new entrants may be the product of bureaucratic inertia more than actual necessity, and may have a disproportionate effect on the opportunities open to new minority firms. Their elimination or modification would have little detrimental effect on the city’s interests and would serve to increase the opportunities available to minority business without classifying individuals on the basis of race. The city may also act to prohibit discrimination in the provision of credit or bonding by local suppliers and banks. Business as usual should not mean business pursuant to the unthinking exclusion of certain members of our society from its rewards. * * * *
Because the city of Richmond has failed to identify the need for remedial action in the awarding of its public construction contracts, its treatment of its citizens on a racial basis violates the dictates of the Equal Protection Clause. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is
Affirmed.
Justice Marshall, with whom Justice Brennan and Justice Blackmun join, dissenting.
It is a welcome symbol of racial progress when the former capital of the Confederacy acts forthrightly to confront the effects of racial discrimination in its midst. In my view, nothing in the Constitution can be construed to prevent Richmond, Virginia, from allocating a portion of its contracting dollars for businesses owned or controlled by members of minority groups. ***
A majority of this Court holds today, however, that the Equal Protection Clause of the Fourteenth Amendment blocks Richmond’s initiative. The essence of the majority’s position is that Richmond has failed to catalog adequate findings to prove that past discrimination has impeded minorities from joining or participating fully in Richmond’s construction contracting industry. I find deep irony in second-guessing Richmond’s judgment on this point. As much as any municipality in the United States, Richmond knows what racial discrimination is; a century of decisions by this and other federal courts has richly documented the city’s disgraceful history of public and private racial discrimination. In any event, the Richmond City Council has supported its determination that minorities have been wrongly excluded from local construction contracting. Its proof includes statistics showing that minority-owned businesses have received virtually no city contracting dollars and rarely if ever belonged to area trade associations; testimony by municipal officials that discrimination has been widespread in the local construction industry; and the same exhaustive and widely publicized federal studies relied on in Fullilove, studies which showed that pervasive discrimination in the Nation’s tight-knit construction industry had operated to exclude minorities from public contracting. These are precisely the types of statistical and testimonial evidence which, until today, this Court had credited in cases approving of race-conscious measures designed to remedy past discrimination.
More fundamentally, today’s decision marks a deliberate and giant step backward in this Court’s affirmative-action jurisprudence. Cynical of one municipality’s attempt to redress the effects of past racial discrimination in a particular industry, the majority launches a grapeshot attack on race-conscious remedies in general. The majority’s unnecessary pronouncements will inevitably discourage or prevent governmental entities, particularly States and localities, from acting to rectify the scourge of past discrimination. This is the harsh reality of the majority’s decision, but it is not the Constitution’s command.
I
As an initial matter, the majority takes an exceedingly myopic view of the factual predicate on which the Richmond City Council relied when it passed the Minority Business Utilization Plan. The majority analyzes Richmond’s initiative as if it were based solely upon the facts about local construction and contracting practices adduced during the city council session at which the measure was enacted. ***
So long as one views Richmond’s local evidence of discrimination against the backdrop of systematic nationwide racial discrimination which Congress had so painstakingly identified in this very industry, this case is readily resolved.
II
“Agreement upon a means for applying the Equal Protection Clause to an affirmative-action program has eluded this Court every time the issue has come before us.” Wygant v. Jackson Bd. of Education (1986) (Marshall, J., dissenting). My view has long been that race-conscious classifications designed to further remedial goals “must serve important governmental objectives and must be substantially related to achievement of those objectives” in order to withstand constitutional scrutiny. University of California Regents v. Bakke (1978) (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.) Analyzed in terms of this two-pronged standard, Richmond’s set-aside, like the federal program on which it was modeled, is “plainly constitutional.” * * * * {analysis omitted}
III
I would ordinarily end my analysis at this point and conclude that Richmond’s ordinance satisfies both the governmental interest and substantial relationship prongs of our Equal Protection Clause analysis. However, I am compelled to add more, for the majority has gone beyond the facts of this case to announce a set of principles which unnecessarily restricts the power of governmental entities to take race-conscious measures to redress the effects of prior discrimination.
A
Today, for the first time, a majority of this Court has adopted strict scrutiny as its standard of Equal Protection Clause review of race-conscious remedial measures. This is an unwelcome development. A profound difference separates governmental actions that themselves are racist, and governmental actions that seek to remedy the effects of prior racism or to prevent neutral governmental activity from perpetuating the effects of such racism.
Racial classifications “drawn on the presumption that one race is inferior to another or because they put the weight of government behind racial hatred and separatism” warrant the strictest judicial scrutiny because of the very irrelevance of these rationales. By contrast, racial classifications drawn for the purpose of remedying the effects of discrimination that itself was race based have a highly pertinent basis: the tragic and indelible fact that discrimination against blacks and other racial minorities in this Nation has pervaded our Nation’s history and continues to scar our society. As I stated in Fullilove: “Because the consideration of race is relevant to remedying the continuing effects of past racial discrimination, and because governmental programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, . . . such programs should not be subjected to conventional ‘strict scrutiny’ – scrutiny that is strict in theory, but fatal in fact.”
In concluding that remedial classifications warrant no different standard of review under the Constitution than the most brutal and repugnant forms of state-sponsored racism, a majority of this Court signals that it regards racial discrimination as largely a phenomenon of the past, and that government bodies need no longer preoccupy themselves with rectifying racial injustice. I, however, do not believe this Nation is anywhere close to eradicating racial discrimination or its vestiges. In constitutionalizing its wishful thinking, the majority today does a grave disservice not only to those victims of past and present racial discrimination in this Nation whom government has sought to assist, but also to this Court’s long tradition of approaching issues of race with the utmost sensitivity.
B
I am also troubled by the majority’s assertion that, even if it did not believe generally in strict scrutiny of race-based remedial measures, “the circumstances of this case” require this Court to look upon the Richmond City Council’s measure with the strictest scrutiny. The sole such circumstance which the majority cites, however, is the fact that blacks in Richmond are a “dominant racial grou[p]” in the city. In support of this characterization of dominance, the majority observes that “blacks constitute approximately 50% of the population of the city of Richmond” and that “[f]ive of the nine seats on the City Council are held by blacks.”
While I agree that the numerical and political supremacy of a given racial group is a factor bearing upon the level of scrutiny to be applied, this Court has never held that numerical inferiority, standing alone, makes a racial group “suspect” and thus entitled to strict scrutiny review. * * * *
It cannot seriously be suggested that nonminorities in Richmond have any “history of purposeful unequal treatment.” Nor is there any indication that they have any of the disabilities that have characteristically afflicted those groups this Court has deemed suspect. Indeed, the numerical and political dominance of nonminorities within the State of Virginia and the Nation as a whole provides an enormous political check against the “simple racial politics” at the municipal level which the majority fears. * * * *
* * * * Richmond’s own recent political history underscores the facile nature of the majority’s assumption that elected officials’ voting decisions are based on the color of their skins. In recent years, white and black councilmembers in Richmond have increasingly joined hands on controversial matters. When the Richmond City Council elected a black man mayor in 1982, for example, his victory was won with the support of the city council’s four white members. The vote on the set-aside plan a year later also was not purely along racial lines. Of the four white councilmembers, one voted for the measure and another abstained. The majority’s view that remedial measures undertaken by municipalities with black leadership must face a stiffer test of Equal Protection Clause scrutiny than remedial measures undertaken by municipalities with white leadership implies a lack of political maturity on the part of this Nation’s elected minority officials that is totally unwarranted. Such insulting judgments have no place in constitutional jurisprudence.
C
Today’s decision, finally, is particularly noteworthy for the daunting standard it imposes upon States and localities contemplating the use of race-conscious measures to eradicate the present effects of prior discrimination and prevent its perpetuation. * * * *
In short, there is simply no credible evidence that the Framers of the Fourteenth Amendment sought “to transfer the security and protection of all the civil rights . . . from the States to the Federal government.” The Slaughter-House Cases, 16 Wall. 36, 77-78 (1873). The three Reconstruction Amendments undeniably “worked a dramatic change in the balance between congressional and state power”: they forbade state-sanctioned slavery, forbade the state-sanctioned denial of the right to vote, and (until the content of the Equal Protection Clause was substantially applied to the Federal Government through the Due Process Clause of the Fifth Amendment) uniquely forbade States to deny equal protection. The Amendments also specifically empowered the Federal Government to combat discrimination at a time when the breadth of federal power under the Constitution was less apparent than it is today. But nothing in the Amendments themselves, or in our long history of interpreting or applying those momentous charters, suggests that States, exercising their police power, are in any way constitutionally inhibited from working alongside the Federal Government in the fight against discrimination and its effects.
IV
The majority today sounds a full-scale retreat from the Court’s longstanding solicitude to race-conscious remedial efforts “directed toward deliverance of the century-old promise of equality of economic opportunity.” Fullilove. The new and restrictive tests it applies scuttle one city’s effort to surmount its discriminatory past, and imperil those of dozens more localities. I, however, profoundly disagree with the cramped vision of the Equal Protection Clause which the majority offers today and with its application of that vision to Richmond, Virginia’s, laudable set-aside plan. The battle against pernicious racial discrimination or its effects is nowhere near won. I must dissent.
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Adarand Constructors, Inc. v. Peña
515 U.S. 200 (1995)
Justice O’Connor announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which is for the Court except insofar as it might be inconsistent with the views expressed in Justice Scalia’s concurrence, and an opinion with respect to Part III-C in which Justice Kennedy joins.
Petitioner Adarand Constructors, Inc., claims that the Federal Government’s practice of giving general contractors on government projects a financial incentive to hire subcontractors controlled by “socially and economically disadvantaged individuals,” and, in particular, the Government’s use of race-based presumptions in identifying such individuals, violates the equal protection component of the Fifth Amendment’s Due Process Clause. The Court of Appeals rejected Adarand’s claim. We conclude, however, that courts should analyze cases of this kind under a different standard of review than the one the Court of Appeals applied. We therefore vacate the Court of Appeals’ judgment and remand the case for further proceedings.
I
In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States Department of Transportation (DOT), awarded the prime contract for a highway construction project in Colorado to Mountain Gravel & Construction Company. Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, submitted the low bid. Gonzales Construction Company also submitted a bid.
The prime contract’s terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small businesses controlled by “socially and economically disadvantaged individuals.” Gonzales is certified as such a business; Adarand is not. Mountain Gravel awarded the subcontract to Gonzales, despite Adarand’s low bid, and Mountain Gravel’s Chief Estimator has submitted an affidavit stating that Mountain Gravel would have accepted Adarand’s bid had it not been for the additional payment it received by hiring Gonzales instead. Federal law requires that a subcontracting clause similar to the one used here must appear in most federal agency contracts, and it also requires the clause to state that
[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the [Small Business] Administration pursuant to section 8(a) of the Small Business Act.
15 U.S.C. §§ 637(d)(2), (3).
Adarand claims that the presumption set forth in that statute discriminates on the basis of race in violation of the Federal Government’s Fifth Amendment obligation not to deny anyone equal protection of the laws.
These fairly straightforward facts implicate a complex scheme of federal statutes and regulations, to which we now turn. * * * * {discussion omitted}
After losing the guardrail subcontract to Gonzales, Adarand filed suit against various federal officials in the United States District Court for the District of Colorado, claiming that the race-based presumptions involved in the use of subcontracting compensation clauses violate Adarand’s right to equal protection. The District Court granted the Government’s motion for summary judgment. The Court of Appeals for the Tenth Circuit affirmed. It understood our decision in Fullilove v. Klutznick (1980), to have adopted “a lenient standard, resembling intermediate scrutiny, in assessing” the constitutionality of federal race-based action. Applying that “lenient standard,” as further developed in Metro Broadcasting, Inc. v. FCC (1990), the Court of Appeals upheld the use of subcontractor compensation clauses. We granted certiorari.
II
{The Court found that Adarand had standing to challenge the government action}
III
The Government urges that “[t]he Subcontracting Compensation Clause program is . . . a program based on disadvantage, not on race,” and thus that it is subject only to “the most relaxed judicial scrutiny.” To the extent that the statutes and regulations involved in this case are race-neutral, we agree. The Government concedes, however, that “the race-based rebuttable presumption used in some certification determinations under the Subcontracting Compensation Clause” is subject to some heightened level of scrutiny. The parties disagree as to what that level should be. * * * *
Adarand’s claim arises under the Fifth Amendment to the Constitution, which provides that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Although this Court has always understood that Clause to provide some measure of protection against arbitrary treatment by the Federal Government, it is not as explicit a guarantee of equal treatment as the Fourteenth Amendment, which provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws” (emphasis added). Our cases have accorded varying degrees of significance to the difference in the language of those two Clauses. We think it necessary to revisit the issue here.
A
{discussion of equal protection under the Fifth Amendment omitted}
B
Most of the cases discussed above involved classifications burdening groups that have suffered discrimination in our society. In 1978, the Court confronted the question whether race-based governmental action designed to benefit such groups should also be subject to “the most rigid scrutiny.” * * * *
The Court’s failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the proper analysis for remedial race-based governmental action. * * * *
The Court resolved the issue at least in part, in 1989. Richmond v. J. A. Croson Co. (1989), concerned a city’s determination that 30% of its contracting work should go to minority-owned businesses. * * * *
With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. But Croson of course had no occasion to declare what standard of review the Fifth Amendment requires for such action taken by the Federal Government. * * * *
Despite lingering uncertainty in the details, however, the Court’s cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: “‘[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination,’” Wygant, 476 U.S. at 273 (plurality opinion of Powell, J.); Fullilove, 448 U.S. at 491 (opinion of Burger, C.J.); see also id. at 523 (Stewart, J., dissenting) (“[A]ny official action that treats a person differently on account of his race or ethnic origin is inherently suspect”); McLaughlin, 379 U.S. at 192 (“[R]acial classifications [are] ‘constitutionally suspect’”); Hirabayashi, 320 U.S. at 100 (“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people”). Second, consistency: “the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification,” Croson, 488 U.S. at 494 (plurality opinion); id. at 520 (Scalia, J., concurring in judgment); see also Bakke, 438 U.S. at 289-290 (opinion of Powell, J.), i. e., all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third, congruence: “[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment,” Buckley v. Valeo, 424 U.S. at 93; see also Weinberger v. Wiesenfeld, 420 U.S. at 638, n. 2; Bolling v. Sharpe, 347 U.S. at 500. Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. * * * *
A year later {after Croson}, however, the Court took a surprising turn. Metro Broadcasting, Inc. v. FCC (1990), involved a Fifth Amendment challenge to two race-based policies of the Federal Communications Commission. In Metro Broadcasting, the Court repudiated the long-held notion that “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government” than it does on a State to afford equal protection of the laws, Bolling. It did so by holding that “benign” federal racial classifications need only satisfy intermediate scrutiny, even though Croson had recently concluded that such classifications enacted by a State must satisfy strict scrutiny. “[B]enign” federal racial classifications, the Court said,
—even if those measures are not “remedial” in the sense of being designed to compensate victims of past governmental or societal discrimination—are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.
Metro Broadcasting. The Court did not explain how to tell whether a racial classification should be deemed “benign,” other than to express
confiden[ce] that an “examination of the legislative scheme and its history” will separate benign measures from other types of racial classifications.
Applying this test, the Court first noted that the FCC policies at issue did not serve as a remedy for past discrimination. Proceeding on the assumption that the policies were nonetheless “benign,” it concluded that they served the “important governmental objective” of “enhancing broadcast diversity,” and that they were “substantially related” to that objective. It therefore upheld the policies. * * * *
The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race – – – a group classification long recognized as “in most circumstances irrelevant and therefore prohibited,” Hirabayashi, – – – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court’s understanding of equal protection, and holding “benign” state and federal racial classifications to different standards does not square with them. “[A] free people whose institutions are founded upon the doctrine of equality,” should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons. Accordingly, we hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled.
C
{discussion of stare decisis omitted}
D
Finally, we wish to dispel the notion that strict scrutiny is “strict in theory, but fatal in fact.” Fullilove (Marshall, J., concurring in judgment). The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it. * * * * When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the “narrow tailoring” test this Court has set out in previous cases.
IV
Because our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced. * * * *
The question whether any of the ways in which the Government uses subcontractor compensation clauses can survive strict scrutiny, and any relevance distinctions such as these may have to that question, should be addressed in the first instance by the lower courts.
Accordingly, 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.
Justice Scalia, concurring in part and concurring in the judgment.
I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: in my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co. (1989) (Scalia, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole, but, under our Constitution, there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt. 14, § 1 (“[N]or shall any State . . . deny to any person” the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, § 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, § 3 (“[N]o Attainder of Treason shall work Corruption of Blood”); Art. I, § 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
It is unlikely, if not impossible, that the challenged program would survive under this would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand.
Justice Thomas, concurring in part and concurring in the judgment.
I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying Justice Stevens’ and Justice Ginsburg’s dissents: that there is a racial paternalism exception to the principle of equal protection* * * * Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an engine of oppression,” {Justice Stevens’ dissent}. It is also true that “[r]emedial” racial preferences may reflect “a desire to foster equality in society.” But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. * * * *
In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.
Justice Stevens, with whom Justice Ginsburg joins, dissenting.
Instead of deciding this case in accordance with controlling precedent, the Court today delivers a disconcerting lecture about the evils of governmental racial classifications. For its text, the Court has selected three propositions, represented by the bywords “skepticism,” “consistency,” and “congruence.” I shall comment on each of these propositions, then add a few words about stare decisis, and finally explain why I believe this Court has a duty to affirm the judgment of the Court of Appeals.
I
The Court’s concept of skepticism is, at least in principle, a good statement of law and of common sense. Undoubtedly, a court should be wary of a governmental decision that relies upon a racial classification.
* * * * In my judgment, because uniform standards are often anything but uniform, we should evaluate the Court’s comments on “consistency,” “congruence,” and stare decisis with the same type of skepticism that the Court advocates for the underlying issue.
II
The Court’s concept of “consistency” assumes that there is no significant difference between a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority notwithstanding its incidental burden on some members of the majority. In my opinion that assumption is untenable. There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society. * * * *
The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat. It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency” does not justify treating differences as though they were similarities.
The Court’s explanation for treating dissimilar race-based decisions as though they were equally objectionable is a supposed inability to differentiate between “invidious” and “benign” discrimination. But the term “affirmative action” is common and well understood. Its presence in everyday parlance shows that people understand the difference between good intentions and bad. As with any legal concept, some cases may be difficult to classify * * * *
Moreover, the Court may find that its new “consistency” approach to race-based classifications is difficult to square with its insistence upon rigidly separate categories for discrimination against different classes of individuals. For example, as the law currently stands, the Court will apply “intermediate scrutiny” to cases of invidious gender discrimination and “strict scrutiny” to cases of invidious race discrimination, while applying the same standard for benign classifications as for invidious ones. If this remains the law, then today’s lecture about “consistency” will produce the anomalous result that the Government can more easily enact affirmative action programs to remedy discrimination against women than it can enact affirmative action programs to remedy discrimination against African Americans-even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. When a court becomes preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency.
As a matter of constitutional and democratic principle, a decision by representatives of the majority to discriminate against the members of a minority race is fundamentally different from those same representatives’ decision to impose incidental costs on the majority of their constituents in order to provide a benefit to a disadvantaged minority. Indeed, as I have previously argued, the former is virtually always repugnant to the principles of a free and democratic society, whereas the latter is, in some circumstances, entirely consistent with the ideal of equality. Wygant v. Jackson Board of Ed. (1986) (Stevens, J., dissenting). By insisting on a doctrinaire notion of “consistency” in the standard applicable to all race-based governmental actions, the Court obscures this essential dichotomy.
III
The Court’s concept of “congruence” assumes that there is no significant difference between a decision by the Congress of the United States to adopt an affirmative action program and such a decision by a State or a municipality. In my opinion, that assumption is untenable. It ignores important practical and legal differences between federal and state or local decisionmakers.
These differences have been identified repeatedly and consistently both in opinions of the Court and in separate opinions authored by members of today’s majority. Thus, in Metro Broadcasting, Inc. v. FCC (1990), in which we upheld a federal program designed to foster racial diversity in broadcasting, we identified the special “institutional competence” of our National Legislature. * * * *
What the record shows, in other words, is that racial discrimination against any group finds a more ready expression at the state and local than at the federal level. To the children of the Founding Fathers, this should come as no surprise. An acute awareness of the heightened danger of oppression from political factions in small, rather than large, political units dates to the very beginning of our national history. See G. Wood, The Creation of the American Republic, 1776-1787 (1969). * * * *
In my judgment, the Court’s novel doctrine of “congruence” is seriously misguided. Congressional deliberations about a matter as important as affirmative action should be accorded far greater deference than those of a State or municipality.
IV
The Court’s concept of stare decisis treats some of the language we have used in explaining our decisions as though it were more important than our actual holdings. In my opinion, that treatment is incorrect.
This is the third time in the Court’s entire history that it has considered the constitutionality of a federal affirmative action program. On each of the two prior occasions, the first in 1980, Fullilove v. Klutznick, and the second in 1990, Metro Broadcasting, Inc. v. FCC, the Court upheld the program. Today the Court explicitly overrules Metro Broadcasting (at least in part), and undermines Fullilove by recasting the standard on which it rested and by calling even its holding into question. By way of explanation, Justice O’Connor advises the federal agencies and private parties that have made countless decisions in reliance on those cases that “we do not depart from the fabric of the law; we restore it.” A skeptical observer might ask whether this pronouncement is a faithful application of the doctrine of stare decisis.
* * * *
V
{discussion of Fullilove omitted}
VI
My skeptical scrutiny of the Court’s opinion leaves me in dissent. The majority’s concept of “consistency” ignores a difference, fundamental to the idea of equal protection, between oppression and assistance. The majority’s concept of “congruence” ignores a difference, fundamental to our constitutional system, between the Federal Government and the States. And the majority’s concept of stare decisis ignores the force of binding precedent. I would affirm the judgment of the Court of Appeals.
Check Your Understanding
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Notes
1. Consider O’Connor’s three principles in Adarand. Are they doctrine, theoretical perspective, or something else? Are they supported by the citations?
2. Be prepared to discuss dissenting Justice Stevens’ reference to “the anomalous result” regarding the application of the consistency principle.
3. Be prepared to articulate the standard of “intermediate scrutiny.” While the Court in Adarand rejects this as the standard for “affirmative action” racial classifications, note that this is the standard that is applicable to sex/gender classifications as decided by the Court in Craig v. Boren, 429 U.S. 190 (1976), discussed in a later chapter.
B. Diversity and Education
Grutter v. Bollinger
539 U.S. 306 (2003)
Justice O’Connor delivered the opinion of the Court.
This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful.
A
The Law School ranks among the Nation’s top law schools. It receives more than 3,500 applications each year for a class of around 350 students. Seeking to “admit a group of students who individually and collectively are among the most capable,” the Law School looks for individuals with “substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others.” More broadly, the Law School seeks “a mix of students with varying backgrounds and experiences who will respect and learn from each other.” In 1992, the dean of the Law School charged a faculty committee with crafting a written admissions policy to implement these goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity complied with this Court’s most recent ruling on the use of race in university admissions. See Bakke (1978). Upon the unanimous adoption of the committee’s report by the Law School faculty, it became the Law School’s official admissions policy.
The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential “to contribute to the learning of those around them.” The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. In reviewing an applicant’s file, admissions officials must consider the applicant’s undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. The policy stresses that “no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems.”
The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School. Nor does a low score automatically disqualify an applicant. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School’s educational objectives. So-called “soft’ variables” such as “the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of undergraduate course selection” are all brought to bear in assessing an “applicant’s likely contributions to the intellectual and social life of the institution.”
The policy aspires to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.” The policy does not restrict the types of diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes “many possible bases for diversity admissions.” The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” By enrolling a “ ‘critical mass’ of [underrepresented] minority students,” the Law School seeks to “ensur[e] their ability to make unique contributions to the character of the Law School.”
The policy does not define diversity “solely in terms of racial and ethnic status.” Nor is the policy “insensitive to the competition among all students for admission to the [L]aw [S]chool.” Rather, the policy seeks to guide admissions officers in “producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession.”
B
Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 grade point average and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit in the United States District Court for the Eastern District of Michigan against the Law School, the Regents of the University of Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President of the University of Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis Shields (Director of Admissions at the Law School from 1991 until 1998). Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment * * * *{as well Title VI of the Civil Rights Act of 1964}.
Petitioner further alleged that her application was rejected because the Law School uses race as a “predominant” factor, giving applicants who belong to certain minority groups “a significantly greater chance of admission than students with similar credentials from disfavored racial groups.” Petitioner also alleged that respondents “had no compelling interest to justify their use of race in the admissions process.” * * * *
During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School’s use of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant’s race along with all other factors. Shields testified that at the height of the admissions season, he would frequently consult the so-called “daily reports” that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). This was done, Shields testified, to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body. Shields stressed, however, that he did not seek to admit any particular number or percentage of underrepresented minority students.
Erica Munzel, who succeeded Shields as Director of Admissions, testified that “ ‘critical mass’ ” means “ ‘meaningful numbers’ ” or “ ‘meaningful representation,’ ” which she understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated. Munzel stated there is no number, percentage, or range of numbers or percentages that constitute critical mass. Munzel also asserted that she must consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores.
The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses, Lehman did not quantify critical mass in terms of numbers or percentages. He indicated that critical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race. When asked about the extent to which race is considered in admissions, Lehman testified that it varies from one applicant to another. In some cases, according to Lehman’s testimony, an applicant’s race may play no role, while in others it may be a “ ‘determinative’ ” factor.
The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with diverse interests and backgrounds to enhance classroom discussion and the educational experience both inside and outside the classroom. When asked about the policy’s “ ‘commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,’ ” Lempert explained that this language did not purport to remedy past discrimination, but rather to include students who may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination. Lempert acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers.
Kent Syverud was the final witness to testify about the Law School’s use of race in admissions decisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted several expert reports on the educational benefits of diversity. Syverud’s testimony indicated that when a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn there is no “ ‘minority viewpoint’ ” but rather a variety of viewpoints among minority students.
In an attempt to quantify the extent to which the Law School actually considers race in making admissions decisions, the parties introduced voluminous evidence at trial. Relying on data obtained from the Law School, petitioner’s expert, Dr. Kinley Larntz, generated and analyzed “admissions grids” for the years in question (1995—2000). These grids show the number of applicants and the number of admittees for all combinations of GPAs and LSAT scores. Dr. Larntz made “ ‘cell-by-cell’ ” comparisons between applicants of different races to determine whether a statistically significant relationship existed between race and admission rates. He concluded that membership in certain minority groups “ ‘is an extremely strong factor in the decision for acceptance,’ ” and that applicants from these minority groups “ ‘are given an extremely large allowance for admission’ ” as compared to applicants who are members of nonfavored groups. Dr. Larntz conceded, however, that race is not the predominant factor in the Law School’s admissions calculus.
Dr. Stephen Raudenbush, the Law School’s expert, focused on the predicted effect of eliminating race as a factor in the Law School’s admission process. In Dr. Raudenbush’s view, a race-blind admissions system would have a “ ‘very dramatic,’ ” negative effect on underrepresented minority admissions. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Under this scenario, underrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent.
In the end, the District Court concluded that the Law School’s use of race as a factor in admissions decisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School’s asserted interest in assembling a diverse student body was not compelling because “the attainment of a racially diverse class … was not recognized as such by Bakke and is not a remedy for past discrimination.” The District Court went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of race to further that interest. The District Court granted petitioner’s request for declaratory relief and enjoined the Law School from using race as a factor in its admissions decisions. The Court of Appeals entered a stay of the injunction pending appeal.
Sitting en banc, the Court of Appeals reversed the District Court’s judgment and vacated the injunction. The Court of Appeals first held that Justice Powell’s opinion in Bakke was binding precedent establishing diversity as a compelling state interest. * * * *The Court of Appeals also held that the Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the Law School’s program was “virtually identical” to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion. * * * *
We granted certiorari, to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Compare Hopwood v. Texas (5th Cir. 1996) (Hopwood I) (holding that diversity is not a compelling state interest), with Smith v. University of Wash. Law School (9th Cir. 2000) (holding that it is).
A
We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. The decision produced six separate opinions, none of which commanded a majority of the Court. * * * *
In the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice Powell’s diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent. * * * *
[T]oday we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.
B
The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” Because the Fourteenth Amendment “protect[s] persons, not groups,” all “governmental action based on race–a group classification long recognized as in most circumstances irrelevant and therefore prohibited–should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Adarand Constructors, Inc. v. Peña (1995). We are a “free people whose institutions are founded upon the doctrine of equality.” Loving v. Virginia (1967). It follows from that principle that “government may treat people differently because of their race only for the most compelling reasons.” Adarand.
We have held that all racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny.” Adarand. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. “Absent searching judicial inquiry into the justification for such race-based measures,” we have no way to determine what “classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Richmond v. J. A. Croson Co. (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to “ ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” Croson.
Strict scrutiny is not “strict in theory, but fatal in fact.” Adarand. Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Adarand. But that observation “says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny.” Id. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.
Context matters when reviewing race-based governmental action under the Equal Protection Clause. In Adarand Constructors, Inc. v. Peña, we made clear that strict scrutiny must take “ ‘relevant differences’ into account.” Indeed, as we explained, that is its “fundamental purpose.” Not every decision influenced by race is equally objectionable and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.
A
With these principles in mind, we turn to the question whether the Law School’s use of race is justified by a compelling state interest. Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow from a diverse student body.” In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity.
We first wish to dispel the notion that the Law School’s argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e.g., Richmond v. J. A. Croson Co., (plurality opinion) (stating that unless classifications based on race are “strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility”). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.
The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.
We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: “The freedom of a university to make its own judgments as to education includes the selection of its student body.” Bakke. From this premise, Justice Powell reasoned that by claiming “the right to select those students who will contribute the most to the ‘robust exchange of ideas,’ ” a university “seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.” Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission, and that “good faith” on the part of a university is “presumed” absent “a showing to the contrary.”
As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly diverse,” the Law School seeks to “enroll a ‘critical mass’ of minority students.” The Law School’s interest is not simply “to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke (opinion of Powell, J.). That would amount to outright racial balancing, which is patently unconstitutional. Bakke; Freeman v. Pitts (1992) (“Racial balance is not to be achieved for its own sake”); Richmond v. J. A. Croson Co. Rather, the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.
These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.” These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.”
The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” Brief for American Educational Research Association et al. as Amici Curiae 3; see, e.g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003).
These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3—4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its mission, the military “must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.” Id., at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.” Ibid.
We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to “sustaining our political and cultural heritage” with a fundamental role in maintaining the fabric of society. Plyler v. Doe (1982). This Court has long recognized that “education … is the very foundation of good citizenship.” Brown v. Board of Education (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms that “[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” And, “[n]owhere is the importance of such openness more acute than in the context of higher education.” Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.
Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. Sweatt v. Painter (1950) (describing law school as a “proving ground for legal learning and practice”). Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. See Brief for Association of American Law Schools as Amicus Curiae 5—6. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” See Sweatt v. Painter. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.
The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a “critical mass” of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.
B
Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still “constrained in how it may pursue that end: [T]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” The purpose of the narrow tailoring requirement is to ensure that “the means chosen ‘fit’ … th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Richmond v. J. A. Croson Co. (plurality opinion).
* * * * To be narrowly tailored, a race-conscious admissions program cannot use a quota system–it cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” Bakke (opinion of Powell, J.). Instead, a university may consider race or ethnicity only as a “ ‘plus’ in a particular applicant’s file,” without “insulat[ing] the individual from comparison with all other candidates for the available seats.” In other words, an admissions program must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.”
We find that the Law School’s admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Universities can, however, consider race or ethnicity more flexibly as a “plus” factor in the context of individualized consideration of each and every applicant.
We are satisfied that the Law School’s admissions program, like the Harvard plan described by Justice Powell, does not operate as a quota. Properly understood, a “quota” is a program in which a certain fixed number or proportion of opportunities are “reserved exclusively for certain minority groups.” Richmond v. J. A. Croson Co. (plurality opinion). Quotas “ ‘impose a fixed number or percentage which must be attained, or which cannot be exceeded,’ ” and “insulate the individual from comparison with all other candidates for the available seats.” Bakke (opinion of Powell, J.). In contrast, “a permissible goal … require[s] only a good-faith effort … to come within a range demarcated by the goal itself,” and permits consideration of race as a “plus” factor in any given case while still ensuring that each candidate “compete[s] with all other qualified applicants.”
* * * * The Law School’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. As the Harvard plan described by Justice Powell recognized, there is of course “some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.” “[S]ome attention to numbers,” without more, does not transform a flexible admissions system into a rigid quota. Nor, as Justice Kennedy posits {in a dissenting opinion} does the Law School’s consultation of the “daily reports,” which keep track of the racial and ethnic composition of the class (as well as of residency and gender), “suggest[ ] there was no further attempt at individual review save for race itself” during the final stages of the admissions process. To the contrary, the Law School’s admissions officers testified without contradiction that they never gave race any more or less weight based on the information contained in these reports. Moreover, as Justice Kennedy concedes, between 1993 and 2000, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota.
The Chief Justice {in his dissenting opinion} believes that the Law School’s policy conceals an attempt to achieve racial balancing, and cites admissions data to contend that the Law School discriminates among different groups within the critical mass. But, as The Chief Justice concedes, the number of underrepresented minority students who ultimately enroll in the Law School differs substantially from their representation in the applicant pool and varies considerably for each group from year to year.
That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. See Bakke (opinion of Powell, J.) (identifying the “denial … of th[e] right to individualized consideration” as the “principal evil” of the medical school’s admissions program).
Here, the Law School engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single “soft” variable. Unlike the program at issue in Gratz v. Bollinger, the Law School awards no mechanical, predetermined diversity “bonuses” based on race or ethnicity. Like the Harvard plan, the Law School’s admissions policy “is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Bakke (opinion of Powell, J.).
We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation’s struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.
The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear “[t]here are many possible bases for diversity admissions,” and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields. The Law School seriously considers each “applicant’s promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic–e.g., an unusual intellectual achievement, employment experience, nonacademic performance, or personal background.” All applicants have the opportunity to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.
What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. This shows that the Law School seriously weighs many other diversity factors besides race that can make a real and dispositive difference for nonminority applicants as well. By this flexible approach, the Law School sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body. Justice Kennedy {in dissenting opinion} speculates that “race is likely outcome determinative for many members of minority groups” who do not fall within the upper range of LSAT scores and grades. But the same could be said of the Harvard plan discussed approvingly by Justice Powell in Bakke, and indeed of any plan that uses race as one of many factors.
Petitioner and the United States argue that the Law School’s plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See Wygant v. Jackson Bd. of Ed (1986) (alternatives must serve the interest “ ‘about as well’ ”); Richmond v. J. A. Croson Co.(plurality opinion) (city had a “whole array of race-neutral” alternatives because changing requirements “would have [had] little detrimental effect on the city’s interests”). Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.
We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral alternatives. The District Court took the Law School to task for failing to consider race-neutral alternatives such as “using a lottery system” or “decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores.” But these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.
The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention every other kind of diversity. So too with the suggestion that the Law School simply lower admissions standards for all students, a drastic remedy that would require the Law School to become a much different institution and sacrifice a vital component of its educational mission. The United States advocates “percentage plans,” recently adopted by public undergraduate institutions in Texas, Florida, and California to guarantee admission to all students above a certain class-rank threshold in every high school in the State. Brief for United States as Amicus Curiae 14—18. The United States does not, however, explain how such plans could work for graduate and professional schools. More-over, even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university. We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.
We acknowledge that “there are serious problems of justice connected with the idea of preference itself.” Bakke (opinion of Powell, J.). Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally “remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” Id. To be narrowly tailored, a race-conscious admissions program must not “unduly burden individuals who are not members of the favored racial and ethnic groups.” Metro Broadcasting, Inc. v. FCC (1990) (O’Connor, J., dissenting).
We are satisfied that the Law School’s admissions program does not. Because the Law School considers “all pertinent elements of diversity,” it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. See Bakke (opinion of Powell, J.). As Justice Powell recognized in Bakke, so long as a race-conscious admissions program uses race as a “plus” factor in the context of individualized consideration, a rejected applicant “will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname…. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.”
We agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.
We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.”
In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. * * * *
We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
IV
In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. * * * * The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.
Chief Justice Rehnquist, with whom Justice Scalia, Justice Kennedy, and Justice Thomas join, dissenting.
I agree with the Court that, “in the limited circumstance when drawing racial distinctions is permissible,” the government must ensure that its means are narrowly tailored to achieve a compelling state interest. I do not believe, however, that the University of Michigan Law School’s (Law School) means are narrowly tailored to the interest it asserts. The Law School claims it must take the steps it does to achieve a “ ‘critical mass’ ” of underrepresented minority students. But its actual program bears no relation to this asserted goal. Stripped of its “critical mass” veil, the Law School’s program is revealed as a naked effort to achieve racial balancing.
* * * * Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.
* * * * Respondents’ asserted justification for the Law School’s use of race in the admissions process is “obtaining ‘the educational benefits that flow from a diverse student body.’ ” They contend that a “critical mass” of underrepresented minorities is necessary to further that interest. Respondents and school administrators explain generally that “critical mass” means a sufficient number of underrepresented minority students to achieve several objectives: To ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. * * * *
In practice, the Law School’s program bears little or no relation to its asserted goal of achieving “critical mass.” Respondents explain that the Law School seeks to accumulate a “critical mass” of each underrepresented minority group. But the record demonstrates that the Law School’s admissions practices with respect to these groups differ dramatically and cannot be defended under any consistent use of the term “critical mass.”
From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-Americans, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case, how can this possibly constitute a “critical mass” of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School’s explanation of “critical mass,” one would have to believe that the objectives of “critical mass” offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving “critical mass,” without any explanation of why that concept is applied differently among the three underrepresented minority groups.* * * *
Only when the “critical mass” label is discarded does a likely explanation for these numbers emerge. * * * *
[T]he correlation between the percentage of the Law School’s pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying “some attention to [the] numbers.” As the tables below show, from 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school’s applicant pool who were from the same groups.
* * * *For example, in 1995, when 9.7% of the applicant pool was African-American, 9.4% of the admitted class was African-American. By 2000, only 7.5% of the applicant pool was African-American, and 7.3% of the admitted class was African-American. This correlation is striking. Respondents themselves emphasize that the number of underrepresented minority students admitted to the Law School would be significantly smaller if the race of each applicant were not considered. But, as the examples above illustrate, the measure of the decrease would differ dramatically among the groups. The tight correlation between the percentage of applicants and admittees of a given race, therefore, must result from careful race based planning by the Law School. It suggests a formula for admission based on the aspirational assumption that all applicants are equally qualified academically, and therefore that the proportion of each group admitted should be the same as the proportion of that group in the applicant pool. * * * *
I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.”.
Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions. * * * *
{other dissenting opinions omitted}
Note: Gratz v. Bollinger
In Gratz v. Bollinger, 539 U.S. 244 (2003), a companion case to Grutter, the Court decided that the undergraduate admissions policy of University of Michigan violated the Equal Protection Clause. The admissions policy allocated points to candidates on a number of factors: high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, leadership, and racial/ethnic minority status. Applicants from an “under-represented racial or ethnic minority” were awarded 20 points toward the 100 needed for admission. In a 5-4 opinion issued the same day as Grutter, the majority opinion by Chief Justice Rehnquist (joined by O’Connor, Scalia, Kennedy, and Thomas) found that “the University’s policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single ‘underrepresented minority’ applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.”
Notable among the dissenting opinions is the one by Justice Ginsburg (joined by Justice Souter), which pointed out a possible consequence of the Court’s opinion for universities that wish to promote diversity:
The stain of generations of racial oppression is still visible in our society and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment–and the networks and opportunities thereby opened to minority graduates–whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers’ recommendations may emphasize who a student is as much as what he or she has accomplished. See, e.g., Steinberg, Using Synonyms for Race, College Strives for Diversity, N. Y. Times, Dec. 8, 2002, section 1, p. 1, col. 3 (describing admissions process at Rice University); cf. Brief for United States as Amicus Curiae 14—15 (suggesting institutions could consider, inter alia, “a history of overcoming disadvantage,” “reputation and location of high school,” and “individual outlook as reflected by essays”). If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.
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Parents Involved in Community Schools v. Seattle School District No. 1
551 U.S. 701 (2007)
Chief Justice Roberts announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, and an opinion with respect to Parts III–B and IV, in which Justices Scalia, Thomas, and Alito join.
The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or nonwhite; the Jefferson County school district as black or “other.” In Seattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests. In each case, the school district relies upon an individual student’s race in assigning that student to a particular school, so that the racial balance at the school falls within a predetermined range based on the racial composition of the school district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection. The Courts of Appeals below upheld the plans. We granted certiorari, and now reverse.
I
Both cases present the same underlying legal question—whether a public school that had not operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making school assignments. Although we examine the plans under the same legal framework, the specifics of the two plans, and the circumstances surrounding their adoption, are in some respects quite different.
A
Seattle School District No. 1 operates 10 regular public high schools. In 1998, it adopted the plan at issue in this case for assigning students to these schools. The plan allows incoming ninth graders to choose from among any of the district’s high schools, ranking however many schools they wish in order of preference.
Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of “tiebreakers” to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district’s public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. If an oversubscribed school is not within 10 percentage points of the district’s overall white/nonwhite racial balance, it is what the district calls “integration positive,” and the district employs a tiebreaker that selects for assignment students whose race “will serve to bring the school into balance.” If it is still necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is the geographic proximity of the school to the student’s residence.
Seattle has never operated segregated schools—legally separate schools for students of different races—nor has it ever been subject to court-ordered desegregation. It nonetheless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments. Most white students live in the northern part of Seattle, most students of other racial backgrounds in the southern part. Four of Seattle’s high schools are located in the north—Ballard, Nathan Hale, Ingraham, and Roosevelt—and five in the south—Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin. One school—Garfield—is more or less in the center of Seattle.
For the 2000–2001 school year, five of these schools were oversubscribed—Ballard, Nathan Hale, Roosevelt, Garfield, and Franklin—so much so that 82 percent of incoming ninth graders ranked one of these schools as their first choice. Three of the oversubscribed schools were “integration positive” because the school’s white enrollment the previous school year was greater than 51 percent—Ballard, Nathan Hale, and Roosevelt. Thus, more nonwhite students (107, 27, and 82, respectively) who selected one of these three schools as a top choice received placement at the school than would have been the case had race not been considered, and proximity been the next tiebreaker. Franklin was “integration positive” because its nonwhite enrollment the previous school year was greater than 69 percent; 89 more white students were assigned to Franklin by operation of the racial tiebreaker in the 2000–2001 school year than otherwise would have been. Garfield was the only oversubscribed school whose composition during the 1999–2000 school year was within the racial guidelines, although in previous years Garfield’s enrollment had been predominantly nonwhite, and the racial tiebreaker had been used to give preference to white students.
Petitioner Parents Involved in Community Schools (Parents Involved) is a nonprofit corporation comprising the parents of children who have been or may be denied assignment to their chosen high school in the district because of their race. The concerns of Parents Involved are illustrated by Jill Kurfirst, who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High School’s special Biotechnology Career Academy. Andy suffered from attention deficit hyperactivity disorder and dyslexia, but had made good progress with hands-on instruction, and his mother and middle school teachers thought that the smaller biotechnology program held the most promise for his continued success. Andy was accepted into this selective program but, because of the racial tiebreaker, was denied assignment to Ballard High School. Parents Involved commenced this suit in the Western District of Washington, alleging that Seattle’s use of race in assignments violated the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and the Washington Civil Rights Act.
The District Court granted summary judgment to the school district, finding that state law did not bar the district’s use of the racial tiebreaker and that the plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit initially reversed based on its interpretation of the Washington Civil Rights Act * * * * {and after proceedings on this issue, a} panel of the Ninth Circuit then again reversed the District Court, this time ruling on the federal constitutional question. The panel determined that while achieving racial diversity and avoiding racial isolation are compelling government interests, Seattle’s use of the racial tiebreaker was not narrowly tailored to achieve these interests. The Ninth Circuit granted rehearing en banc, and overruled the panel decision, affirming the District Court’s determination that Seattle’s plan was narrowly tailored to serve a compelling government interest. We granted certiorari.
B
Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson County had maintained a segregated school system, and in 1975 the District Court entered a desegregation decree. Jefferson County operated under this decree until 2000, when the District Court dissolved the decree after finding that the district had achieved unitary status by eliminating “[t]o the greatest extent practicable” the vestiges of its prior policy of segregation.
In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment plan at issue in this case. Approximately 34 percent of the district’s 97,000 students are black; most of the remaining 66 percent are white. The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent.
At the elementary school level, based on his or her address, each student is designated a “resides” school to which students within a specific geographic area are assigned; elementary resides schools are “grouped into clusters in order to facilitate integration.” The district assigns students to nonmagnet schools in one of two ways: Parents of kindergartners, first-graders, and students new to the district may submit an application indicating a first and second choice among the schools within their cluster; students who do not submit such an application are assigned within the cluster by the district. “Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines in the District’s current student assignment plan.” If a school has reached the “extremes of the racial guidelines,” a student whose race would contribute to the school’s racial imbalance will not be assigned there. After assignment, students at all grade levels are permitted to apply to transfer between nonmagnet schools in the district. Transfers may be requested for any number of reasons, and may be denied because of lack of available space or on the basis of the racial guidelines.
When petitioner Crystal Meredith moved into the school district in August 2002, she sought to enroll her son, Joshua McDonald, in kindergarten for the 2002–2003 school year. His resides school was only a mile from his new home, but it had no available space—assignments had been made in May, and the class was full. Jefferson County assigned Joshua to another elementary school in his cluster, Young Elementary. This school was 10 miles from home, and Meredith sought to transfer Joshua to a school in a different cluster, Bloom Elementary, which—like his resides school—was only a mile from home. Space was available at Bloom, and intercluster transfers are allowed, but Joshua’s transfer was nonetheless denied because, in the words of Jefferson County, “[t]he transfer would have an adverse effect on desegregation compliance” of Young.
Meredith brought suit in the Western District of Kentucky, alleging violations of the Equal Protection Clause of the Fourteenth Amendment. The District Court found that Jefferson County had asserted a compelling interest in maintaining racially diverse schools, and that the assignment plan was (in all relevant respects) narrowly tailored to serve that compelling interest. The Sixth Circuit affirmed in a per curiam opinion relying upon the reasoning of the District Court, concluding that a written opinion “would serve no useful purpose.” We granted certiorari.
II
{standing discussion omitted}
A
It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Grutter v. Bollinger; Adarand. As the Court recently reaffirmed, “ ‘racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’ ” Gratz v. Bollinger. In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand.
Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. See Freeman v. Pitts (1992). Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees. The Jefferson County public schools were previously segregated by law and were subject to a desegregation decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson County had “eliminated the vestiges associated with the former policy of segregation and its pernicious effects,” and thus had achieved “unitary” status. Jefferson County accordingly does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students.
Nor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that “the Constitution is not violated by racial imbalance in the schools, without more.” Milliken v. Bradley (1977). See also Freeman v. Pitts. Once Jefferson County achieved unitary status, it had remedied the constitutional wrong that allowed race-based assignments. Any continued use of race must be justified on some other basis.
The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” * * * *
The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review.” As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.”
In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints;” race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz, the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way.
Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County. The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in “[p]roviding students the opportunity to attend schools with diverse student enrollment.” But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “ ‘broadly diverse,’ ” Grutter. * * * *
In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” See also Bakke (opinion of Powell, J.). The Court explained that “[c]ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” Grutter. The Court in Grutter expressly articulated key limitations on its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter.
B
Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment.” Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contends that because the diversity they seek is racial diversity—not the broader diversity at issue in Grutter—it makes sense to promote that interest directly by relying on race alone.
The parties and their amici dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits. The debate is not one we need to resolve, however, because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.
The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. In Seattle, the district seeks white enrollment of between 31 and 51 percent (within 10 percent of “the district white average” of 41 percent), and nonwhite enrollment of between 49 and 69 percent (within 10 percent of “the district minority average” of 59 percent). In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or more than 50 percent, a range designed to be “equally above and below Black student enrollment systemwide,” based on the objective of achieving at “all schools … an African-American enrollment equivalent to the average district-wide African-American enrollment” of 34 percent. In Seattle, then, the benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at least 50 percent. There must be at least 15 percent nonwhite students under Jefferson County’s plan; in Seattle, more than three times that figure. This comparison makes clear that the racial demographics in each district—whatever they happen to be—drive the required “diversity” numbers. The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and Demographics, to “the goal established by the school board of attaining a level of diversity within the schools that approximates the district’s overall demographics.”
The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective school districts—or rather the white/nonwhite or black/“other” balance of the districts, since that is the only diversity addressed by the plans. Indeed, in its brief Seattle simply assumes that the educational benefits track the racial breakdown of the district. When asked for “a range of percentage that would be diverse,” however, Seattle’s expert said it was important to have “sufficient numbers so as to avoid students feeling any kind of specter of exceptionality.” The district did not attempt to defend the proposition that anything outside its range posed the “specter of exceptionality.” Nor did it demonstrate in any way how the educational and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent Asian-American, which would qualify as diverse under Seattle’s plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattle’s definition would be racially concentrated.
Similarly, Jefferson County’s expert referred to the importance of having “at least 20 percent” minority group representation for the group “to be visible enough to make a difference,” and noted that “small isolated minority groups in a school are not likely to have a strong effect on the overall school.” The Jefferson County plan, however, is based on a goal of replicating at each school “an African-American enrollment equivalent to the average district-wide African-American enrollment.” Joshua McDonald’s requested transfer was denied because his race was listed as “other” rather than black, and allowing the transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the school he sought to leave. At the time, however, Young Elementary was 46.8 percent black. The transfer might have had an adverse effect on the effort to approach district-wide racial proportionality at Young, but it had nothing to do with preventing either the black or “other” group from becoming “small” or “isolated” at Young.
In fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve the stated goals, even as defined by the districts. For example, at Franklin High School in Seattle, the racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming ninth-grade class in 2000–2001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent Native-American, and 40.5 percent Caucasian. Without the racial tiebreaker, the class would have been 39.6 percent Asian-American, 30.2 percent African-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity.
* * * *Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, (plurality opinion of O’Connor, J.). An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.”
* * * *The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration—they offer no definition of the interest that suggests it differs from racial balance. (“Q. What’s your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that”); (“I don’t think we’ve ever sat down and said, ‘Define racially concentrated school exactly on point in quantitative terms.’ I don’t think we’ve ever had that conversation”); (“Q. How does the Jefferson County School Board define diversity …?” “A. Well, we want to have the schools that make up the percentage of students of the population”).
Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required. * * * *
However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled “racial diversity” or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end.
C
The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Approximately 307 student assignments were affected by the racial tiebreaker in 2000–2001; the district was able to track the enrollment status of 293 of these students. Of these, 209 were assigned to a school that was one of their choices, 87 of whom were assigned to the same school to which they would have been assigned without the racial tiebreaker. Eighty-four students were assigned to schools that they did not list as a choice, but 29 of those students would have been assigned to their respective school without the racial tiebreaker, and 3 were able to attend one of the oversubscribed schools due to waitlist and capacity adjustments. In over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned. * * * *
Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students.* * * *
While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school—from 4 to 14.5 percent. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15–50% range.’ ” Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it. * * * *
IV
Justice Breyer’s dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision. * * * *
At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, Justice Breyer’s dissent candidly dismisses the significance of this Court’s repeated holdings that all racial classifications must be reviewed under strict scrutiny, arguing that a different standard of review should be applied because the districts use race for beneficent rather than malicious purposes.
This Court has recently reiterated, however, that “ ‘all racial classifications [imposed by government] … must be analyzed by a reviewing court under strict scrutiny.’ ” (quoting Adarand). See also Grutter (“[G]overnmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry” (internal quotation marks and emphasis omitted)). Justice Breyer nonetheless relies on the good intentions and motives of the school districts, stating that he has found “no case that … repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races.” We have found many. * * * *
This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz (Breyer, J., concurring in judgment) and (Ginsburg, J., dissenting); Adarand (Stevens, J., dissenting); Wygant, (Stevens, J., dissenting), and has been repeatedly rejected. See also Bakke (opinion of Powell, J.) (rejecting argument that strict scrutiny should be applied only to classifications that disadvantage minorities, stating “[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination”).
* * * Justice Breyer’s position comes down to a familiar claim: The end justifies the means. He admits that “there is a cost in applying ‘a state-mandated racial label,’ ” but he is confident that the cost is worth paying. Our established strict scrutiny test for racial classifications, however, insists on “detailed examination, both as to ends and as to means.” Adarand (emphasis added). Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny.
Despite his argument that these cases should be evaluated under a “standard of review that is not ‘strict’ in the traditional sense of that word,” Justice Breyer still purports to apply strict scrutiny to these cases. It is evident, however, that Justice Breyer’s brand of narrow tailoring is quite unlike anything found in our precedents. * * * *
Justice Breyer repeatedly urges deference to local school boards on these issues. Such deference “is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified.”
Justice Breyer’s dissent ends on an unjustified note of alarm. It predicts that today’s decision “threaten[s]” the validity of “[h]undreds of state and federal statutes and regulations.” But the examples the dissent mentions—for example, a provision of the No Child Left Behind Act that requires States to set measurable objectives to track the achievement of students from major racial and ethnic groups—have nothing to do with the pertinent issues in these cases.
Justice Breyer also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. These other means—e.g., where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools—implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity—not even in dicta. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissent’s cataclysmic concerns. Under that approach, the school districts have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosen—classifying individual students on the basis of their race and discriminating among them on that basis.
* * *
If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. “[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Metro Broadcasting (O’Connor, J., dissenting). As the Court explained in Rice v. Cayetano (2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”
All this is true enough in the contexts in which these statements were made—government contracting, voting districts, allocation of broadcast licenses, and electing state officers—but when it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education (1954) (Brown I), we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. See id., at 494 (“‘The impact [of segregation] is greater when it has the sanction of the law’ ”). The next Term, we accordingly stated that “full compliance” with Brown I required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown II (emphasis added).
The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis? Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
The judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are remanded for further proceedings.
Justice Kennedy, concurring in part and concurring in the judgment.
The Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts of the country seek to teach that principle by having classrooms that reflect the racial makeup of the surrounding community. That the school districts consider these plans to be necessary should remind us our highest aspirations are yet unfulfilled. But the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome. In my view the state-mandated racial classifications at issue, official labels proclaiming the race of all persons in a broad class of citizens—elementary school students in one case, high school students in another—are unconstitutional as the cases now come to us.
I agree with The Chief Justice that we have jurisdiction to decide the cases before us and join Parts I and II of the Court’s opinion. I also join Parts III–A and III–C for reasons provided below. My views do not allow me to join the balance of the opinion by The Chief Justice, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause.
I
{omitted}
{Justice Kennedy does state that “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue, but finds the school districts’ use of racial categories are not justified and are not narrowly tailored.}
II
Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.
This is by way of preface to my respectful submission that parts of the opinion by The Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education (1954) should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.
The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most certainly justified in the context of his dissent in Plessy v. Ferguson (1896). The Court’s decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.
In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger (2003); id (Kennedy, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.
School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.
Each respondent has asserted that its assignment of individual students by race is permissible because there is no other way to avoid racial isolation in the school districts. Yet, as explained, each has failed to provide the support necessary for that proposition. And individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest.
In the cases before us it is noteworthy that the number of students whose assignment depends on express racial classifications is limited. I join Part III–C of the Court’s opinion because I agree that in the context of these plans, the small number of assignments affected suggests that the schools could have achieved their stated ends through different means. These include the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter, though of course the criteria relevant to student placement would differ based on the age of the students, the needs of the parents, and the role of the schools.
III
{discussion of Justice Breyer’s dissent omitted}
* * *
This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand.
That statement, to be sure, invites this response: A sense of stigma may already become the fate of those separated out by circumstances beyond their immediate control. But to this the replication must be: Even so, measures other than differential treatment based on racial typing of individuals first must be exhausted.
The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors—some influenced by government, some not—neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.
With this explanation I concur in the judgment of the Court.
Stevens, J., filed a dissenting opinion.
While I join Justice Breyer’s eloquent and unanswerable dissent in its entirety, it is appropriate to add these words.
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions. * * * *
Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education long ago promised—efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.
The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause. * * * *
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Fisher v. University of Texas at Austin (Fisher I)
570 U.S. ___ (2013)
A
Located in Austin, Texas, on the most renowned campus of the Texas state university system, the University is one of the leading institutions of higher education in the Nation. Admission is prized and competitive. In 2008, when petitioner sought admission to the University’s entering class, she was 1 of 29,501 applicants. From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner was denied admission.
In recent years the University has used three different programs to evaluate candidates for admission. The first is the program it used for some years before 1997, when the University considered two factors: a numerical score reflecting an applicant’s test scores and academic performance in high school (Academic Index or AI), and the applicant’s race. In 1996, this system was held unconstitutional by the United States Court of Appeals for the Fifth Circuit. It ruled the University’s consideration of race violated the Equal Protection Clause because it did not further any compelling government interest. Hopwood v. Texas.
The second program was adopted to comply with the Hopwood decision. The University stopped considering race in admissions and substituted instead a new holistic metric of a candidate’s potential contribution to the University, to be used in conjunction with the Academic Index. This “Personal Achievement Index” (PAI) measures a student’s leadership and work experience, awards, extracurricular activities, community service, and other special circumstances that give insight into a student’s background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family. Seeking to address the decline in minority enrollment after Hopwood, the University also expanded its outreach programs.
The Texas State Legislature also responded to the Hopwood decision. It enacted a measure known as the Top Ten Percent Law * * * * [which] grants automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards.
The University’s revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University’s entering freshman class was 4.1% African-American and 14.5% Hispanic.
Following this Court’s decisions in Grutter v. Bollinger and Gratz v. Bollinger, the University adopted a third admissions program, the 2004 program in which the University reverted to explicit consideration of race. This is the program here at issue. In Grutter, the Court upheld the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate. In Gratz, by contrast, the Court held unconstitutional Michigan’s undergraduate admissions program, which automatically awarded points to applicants from certain racial minorities.
The University’s plan to resume race-conscious admissions was given formal expression in June 2004 in an internal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal). The Proposal relied in substantial part on a study of a subset of undergraduate classes containing between 5 and 24 students. It showed that few of these classes had significant enrollment by members of racial minorities. In addition the Proposal relied on what it called “anecdotal” reports from students regarding their “interaction in the classroom.” The Proposal concluded that the University lacked a “critical mass” of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.
To implement the Proposal the University included a student’s race as a component of the PAI score, beginning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.
Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college—such as Liberal Arts or Engineering—admits students separately. So a student is considered initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major.
Petitioner applied for admission to the University’s 2008 entering class and was rejected. She sued the University and various University officials in the United States District Court for the Western District of Texas. She alleged that the University’s consideration of race in admissions violated the Equal Protection Clause. The parties cross-moved for summary judgment. The District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit affirmed. It held that Grutter required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the University’s admissions plan.
Over the dissent of seven judges, the Court of Appeals denied petitioner’s request for rehearing en banc. Petitioner sought a writ of certiorari. The writ was granted.
B
Among the Court’s cases involving racial classifications in education, there are three decisions that directly address the question of considering racial minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student body: Bakke; Gratz; and Grutter. We take those cases as given for purposes of deciding this case.
We begin with the principal opinion authored by Justice Powell in Bakke. In Bakke, the Court considered a system used by the medical school of the University of California at Davis. From an entering class of 100 students the school had set aside 16 seats for minority applicants. In holding this program impermissible under the Equal Protection Clause Justice Powell’s opinion stated certain basic premises. First, “decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment.” The principle of equal protection admits no “artificial line of a ‘two-class theory’ ” that “permits the recognition of special wards entitled to a degree of protection greater than that accorded others.” It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny, for when government decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.”
Next, Justice Powell identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body. Redressing past discrimination could not serve as a compelling interest, because a university’s “broad mission [of] education” is incompatible with making the “judicial, legislative, or administrative findings of constitutional or statutory violations” necessary to justify remedial racial classification.
The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced class-room dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is “a special concern of the First Amendment.” Part of “ ‘the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation,’ ” and this in turn leads to the question of “ ‘who may be admitted to study.’ ”
Justice Powell’s central point, however, was that this interest in securing diversity’s benefits, although a permissible objective, is complex. “It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”
In Gratz and Grutter the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court reaffirmed his conclusion that obtaining the educational benefits of “student body diversity is a compelling state interest that can justify the use of race in university admissions.”
As Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular admissions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny. “Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.” Gratz. “To be narrowly tailored, a race-conscious admissions program cannot use a quota system,” Grutter, but instead must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Strict scrutiny requires the university to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.” Bakke (opinion of Powell, J.).
While these are the cases that most specifically address the central issue in this case, additional guidance may be found in the Court’s broader equal protection jurisprudence which applies in this context. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,” and therefore “are contrary to our traditions and hence constitutionally suspect.” “ ‘[B]ecause racial characteristics so seldom provide a relevant basis for disparate treatment,’ ” Richmond v. J. A. Croson Co., “the Equal Protection Clause demands that racial classifications . . . be subjected to the ‘most rigid scrutiny.’ ” Loving v. Virginia.
To implement these canons, judicial review must begin from the position that “any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” Strict scrutiny is a searching examination, and it is the government that bears the burden to prove “ ‘that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate,’ ” Croson.
II
Grutter made clear that racial “classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” And Grutter endorsed Justice Powell’s conclusion in Bakke that “the attainment of a diverse student body . . . is a constitutionally permissible goal for an institution of higher education.” Thus, under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications.
According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” Grutter concluded that the decision to pursue “the educational benefits that flow from student body diversity,” that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University’s conclusion, “ ‘based on its experience and expertise,’ ” that a diverse student body would serve its educational goals. There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.
A university is not permitted to define diversity as “some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke. “That would amount to outright racial balancing, which is patently unconstitutional.” Grutter. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ” Parents Involved in Community Schools v. Seattle School Dist. No. 1.
Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”
Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. Bakke. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.” See Grutter (emphasis added). Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “ ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ ” then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.
Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration.” The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].”. Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.”
These expressions of the controlling standard are at odds with Grutter’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ” In Grutter, the Court approved the plan at issue upon concluding that it was not a quota, was sufficiently flexible, was limited in time, and followed “serious, good faith consideration of workable race-neutral alternatives.” As noted above, the parties do not challenge, and the Court therefore does not consider, the correctness of that determination.
Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that “the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled to little or no weight.” Croson. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.
* * * *The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. Unlike Grutter, which was decided after trial, this case arises from cross-motions for summary judgment. In this case, as in similar cases, in determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. Whether this record—and not “simple . . . assurances of good intention”—is sufficient is a question for the Court of Appeals in the first instance.
Strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’ ” Adarand. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke (opinion of Powell, J.). 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.
Justice Thomas, concurring.
I join the Court’s opinion because I agree that the Court of Appeals did not apply strict scrutiny to the University of Texas at Austin’s (University) use of racial discrimination in admissions decisions. I write separately to explain that I would overrule Grutter v. Bollinger, and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.
A
The Fourteenth Amendment provides that no State shall “deny to any person . . . the equal protection of the laws.” The Equal Protection Clause guarantees every person the right to be treated equally by the State, without regard to race. “At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.” Missouri v. Jenkins (1995) (Thomas, J., concurring). “It is for this reason that we must subject all racial classifications to the strictest of scrutiny.” Id.
Under strict scrutiny, all racial classifications are categorically prohibited unless they are “ ‘necessary to further a compelling governmental interest’ ” and “narrowly tailored to that end.” This most exacting standard “has proven automatically fatal” in almost every case. Jenkins (Thomas, J., concurring). And rightly so. “Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that [racial] classifications ultimately have a destructive impact on the individual and our society.” Adarand Constructors, Inc. v. Peña (Thomas, J., concurring in part and concurring in judgment). “The Constitution abhors classifications based on race” because “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Grutter (Thomas, J., concurring in part and dissenting in part).
1
The Court first articulated the strict-scrutiny standard in Korematsu v. United States (1944). There, we held that “[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can.” Aside from Grutter, the Court has recognized only two instances in which a “[p]ressing public necessity” may justify racial discrimination by the government. First, in Korematsu, the Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court upheld an evacuation order directed at “all persons of Japanese ancestry” on the grounds that the Nation was at war with Japan and that the order had “a definite and close relationship to the prevention of espionage and sabotage.” Second, the Court has recognized that the government has a compelling interest in remedying past discrimination for which it is responsible, but we have stressed that a government wishing to use race must provide “a ‘strong basis in evidence for its conclusion that remedial action [is] necessary.’ ” Richmond v. J. A. Croson Co.
In contrast to these compelling interests that may, in a narrow set of circumstances, justify racial discrimination, the Court has frequently found other asserted interests insufficient. * * * *
2
Grutter was a radical departure from our strict-scrutiny precedents. * * * *
A
The University claims that the District Court found that it has a compelling interest in attaining “a diverse student body and the educational benefits flowing from such diversity.” The use of the conjunction, “and,” implies that the University believes its discrimination furthers two distinct interests. The first is an interest in attaining diversity for its own sake. The second is an interest in attaining educational benefits that allegedly flow from diversity.
Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible “racial balancing.” Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.
Unfortunately for the University, the educational benefits flowing from student body diversity—assuming they exist—hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education (1954), the alleged educational benefits of diversity cannot justify racial discrimination today. * * * *
B
My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.
This principle is neither new nor difficult to understand. In 1868, decades before Plessy, the Iowa Supreme Court held that schools may not discriminate against applicants based on their skin color. In Clark v. Board of Directors, 24 Iowa 266 (1868), a school denied admission to a student because she was black, and “public sentiment [was] opposed to the intermingling of white and colored children in the same schools.” The Iowa Supreme Court rejected that flimsy justification, holding that “all the youths are equal before the law, and there is no discretion vested in the board . . . or elsewhere, to interfere with or disturb that equality.” “For the courts to sustain a board of school directors . . . in limiting the rights and privileges of persons by reason of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races.” This simple, yet fundamental, truth was lost on the Court in Plessy and Grutter.
I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.
III
While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.
A
Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. * * * *
A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. And they even appealed to the fact that many blacks agreed that separate schools were in the “best interests” of both races.
Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. * * * * It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.
B
While it does not, for constitutional purposes, matter whether the University’s racial discrimination is benign, I note that racial engineering does in fact have insidious consequences. There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful.
Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Brief for Richard Sander et al. as Amici Curiae 3–4, and n. 4. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991.
Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University. * * * *
Furthermore, the University’s discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally. Instead, the University’s discrimination has a pervasive shifting effect. See T. Sowell, Affirmative Action Around the World 145–146 (2004). The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched. But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete. Setting aside the damage wreaked upon the self-confidence of these overmatched students, there is no evidence that they learn more at the University than they would have learned at other schools for which they were better prepared. Indeed, they may learn less.
The Court of Appeals believed that the University needed to enroll more blacks and Hispanics because they remained “clustered in certain programs.” But racial discrimination may be the cause of, not the solution to, this clustering. There is some evidence that students admitted as a result of racial discrimination are more likely to abandon their initial aspirations to become scientists and engineers than are students with similar qualifications who attend less selective schools. These students may well drift towards less competitive majors because the mismatch caused by racial discrimination in admissions makes it difficult for them to compete in more rigorous majors.
Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand (opinion of Thomas, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination. And, it taints the accomplishments of all those who are the same race as those admitted as a result of racial discrimination. In this case, for example, most blacks and Hispanics attending the University were admitted without discrimination under the Top Ten Percent plan, but no one can distinguish those students from the ones whose race played a role in their admission. “When blacks [and Hispanics] take positions in the highest places of government, industry, or academia, it is an open question . . . whether their skin color played a part in their advancement.” See Grutter (opinion of Thomas, J.). “The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those . . . who would succeed without discrimination.” Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping.
For the foregoing reasons, I would overrule Grutter. However, because the Court correctly concludes that the Court of Appeals did not apply strict scrutiny, I join its opinion.
Justice Ginsburg, dissenting.
The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke. The University has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats. And, like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger.
Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. * * * *
Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. See House Research Organization, Bill Analysis, HB 588, pp. 4–5 (Apr. 15, 1997) (“Many regions of the state, school districts, and high schools in Texas are still predominantly composed of people from a single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10 percent of all high schools would provide a diverse population and ensure that a large, well qualified pool of minority students was admitted to Texas universities.”). It is race consciousness, not blindness to race, that drives such plans. As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.” Gratz (Ginsburg, J., dissenting).
I have several times explained why government actors, including state universities, need not be blind to the lingering effects of “an overtly discriminatory past,” the legacy of “centuries of law-sanctioned inequality.” Among constitutionally permissible options, I remain convinced, “those that candidly disclose their consideration of race [are] preferable to those that conceal it.” Gratz (dissenting opinion).
Accordingly, I would not return this case for a second look. As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University’s educational objectives. Justice Powell’s opinion in Bakke and the Court’s decision in Grutter require no further determinations.
The Court rightly declines to cast off the equal protection framework settled in Grutter. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals’ judgment and remands for the Court of Appeals to “assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court’s Bakke and Grutter pathmarkers, merits our approbation.
Note: Fisher on remand in the Fifth Circuit
In Fisher v. Univ. of Texas at Austin, 758 F.3d 633 (5th Cir. 2014), the Fifth Circuit on remand affirmed its earlier ruling that the University of Texas plan was constitutional in a 2-1 decision. [Recall that panels on the Courts of Appeals are comprised of three judges].
Many found the result surprising.
The Fifth Circuit majority opinion concluded:
In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals—each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school—whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws from majority-white and majority-minority schools flows directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from
It is settled that instruments of state may pursue facially neutral policies calculated to promote equality of opportunity among students to whom the public schools of Texas assign quite different starting places in the annual race for seats in its flagship university. It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity. This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts—the classic assertion of the humanities. Yet the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.
For these reasons, we AFFIRM.
The Fifth Circuit declined en banc review by a vote of 10-5. http://lawprofessors.typepad.com/conlaw/2014/11/fifth-circuit-denies-en-banc-review-in-fisher-remand-.html. Not surprisingly, the United States Supreme Court granted certiorari to review the Fifth Circuit’s 2014 decision.
Fisher v. University of Texas at Austin (Fisher II)
579 U.S. ___ (2016)
Justice Kennedy delivered the opinion of the Court.
The Court is asked once again to consider whether the race-conscious admissions program at the University of Texas is lawful under the Equal Protection Clause.
I
The University of Texas at Austin (or University) relies upon a complex system of admissions that has undergone significant evolution over the past two decades. {remainder of facts omitted}.
II
Fisher I set forth three controlling principles relevant to assessing the constitutionality of a public university’s affirmative-action program. First, “because racial characteristics so seldom provide a relevant basis for disparate treatment,” Richmond v. J. A. Croson Co., “[r]ace may not be considered [by a university] unless the admissions process can withstand strict scrutiny,” Fisher I. Strict scrutiny requires the university to demonstrate with clarity that its “‘purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.’”
Second, Fisher I confirmed that “the decision to pursue ‘the educational benefits that flow from student body diversity’ … is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” A university cannot impose a fixed quota or otherwise “define diversity as ‘some specified percentage of a particular group merely because of its race or ethnic origin.’” Once, however, a university gives “a reasoned, principled explanation” for its decision, deference must be given “to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.”
Third, Fisher I clarified that no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals. A university, Fisher I explained, bears the burden of proving a “nonracial approach” would not promote its interest in the educational benefits of diversity “about as well and at tolerable administrative expense.” Though “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative” or “require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunities to members of all racial groups,” Grutter, it does impose “on the university the ultimate burden of demonstrating” that “race-neutral alternatives” that are both “available” and “workable” “do not suffice.” Fisher I.
Fisher I set forth these controlling principles, while taking no position on the constitutionality of the admissions program at issue in this case. The Court held only that the District Court and the Court of Appeals had “confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications.” The Court remanded the case, with instructions to evaluate the record under the correct standard and to determine whether the University had made “a showing that its plan is narrowly tailored to achieve” the educational benefits that flow from diversity. On remand, the Court of Appeals determined that the program conformed with the strict scrutiny mandated by Fisher I. Judge Garza dissented.
III
The University’s program is sui generis. Unlike other approaches to college admissions considered by this Court, it combines holistic review with a percentage plan. This approach gave rise to an unusual consequence in this case: The component of the University’s admissions policy that had the largest impact on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review process but rather the Top Ten Percent Plan. Because petitioner did not graduate in the top 10 percent of her high school class, she was categorically ineligible for more than three-fourths of the slots in the incoming freshman class. It seems quite plausible, then, to think that petitioner would have had a better chance of being admitted to the University if the school used race-conscious holistic review to select its entire incoming class, as was the case in Grutter.
Despite the Top Ten Percent Plan’s outsized effect on petitioner’s chances of admission, she has not challenged it. * * * *
IV
In seeking to reverse the judgment of the Court of Appeals, petitioner makes four arguments. First, she argues that the University has not articulated its compelling interest with sufficient clarity. According to petitioner, the University must set forth more precisely the level of minority enrollment that would constitute a “critical mass.” Without a clearer sense of what the University’s ultimate goal is, petitioner argues, a reviewing court cannot assess whether the University’s admissions program is narrowly tailored to that goal.
As this Court’s cases have made clear, however, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.” Fisher I, see also Grutter. As this Court has said, enrolling a diverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”
Increasing minority enrollment may be instrumental to these educational benefits, but it is not, as petitioner seems to suggest, a goal that can or should be reduced to pure numbers. Indeed, since the University is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.
On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.
The record reveals that in first setting forth its current admissions policy, the University articulated concrete and precise goals. On the first page of its 2004 “Proposal to Consider Race and Ethnicity in Admissions,” the University identifies the educational values it seeks to realize through its admissions process: the destruction of stereotypes, the “‘promot[ion of] cross-racial understanding,’” the preparation of a student body “‘for an increasingly diverse workforce and society,’” and the “‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’” Later in the proposal, the University explains that it strives to provide an “academic environment” that offers a “robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.” All of these objectives, as a general matter, mirror the “compelling interest” this Court has approved in its prior cases.
The University has provided in addition a “reasoned, principled explanation” for its decision to pursue these goals. Fisher I. The University’s 39-page proposal was written following a year-long study, which concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful” in “provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.” Further support for the University’s conclusion can be found in the depositions and affidavits from various admissions officers, all of whom articulate the same, consistent “reasoned, principled explanation.” Petitioner’s contention that the University’s goal was insufficiently concrete is rebutted by the record.
Second, petitioner argues that the University has no need to consider race because it had already “achieved critical mass” by 2003 using the Top Ten Percent Plan and race-neutral holistic review. Petitioner is correct that a university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan. The record reveals, however, that, at the time of petitioner’s application, the University could not be faulted on this score. Before changing its policy the University conducted “months of study and deliberation, including retreats, interviews, [and] review of data,” and concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful in achieving” sufficient racial diversity at the University. At no stage in this litigation has petitioner challenged the University’s good faith in conducting its studies, and the Court properly declines to consider the extrarecord materials the dissent relies upon, many of which are tangential to this case at best and none of which the University has had a full opportunity to respond to. See, e.g., post, at 45– 46 (opinion of Alito, J.) (describing a 2015 report regarding the admission of applicants who are related to “politically connected individuals”).
The record itself contains significant evidence, both statistical and anecdotal, in support of the University’s position. To start, the demographic data the University has submitted show consistent stagnation in terms of the percentage of minority students enrolling at the University from 1996 to 2002. In 1996, for example, 266 African-American freshmen enrolled, a total that constituted 4.1 percent of the incoming class. In 2003, the year Grutter was decided, 267 African-American students enrolled—again, 4.1 percent of the incoming class. The numbers for Hispanic and Asian-American students tell a similar story. Although demographics alone are by no means dispositive, they do have some value as a gauge of the University’s ability to enroll students who can offer underrepresented perspectives.
In addition to this broad demographic data, the University put forward evidence that minority students admitted under the Hopwood regime experienced feelings of loneliness and isolation. This anecdotal evidence is, in turn, bolstered by further, more nuanced quantitative data. In 2002, 52 percent of undergraduate classes with at least five students had no African-American students enrolled in them, and 27 percent had only one African-American student. In other words, only 21 percent of undergraduate classes with five or more students in them had more than one African-American student enrolled. Twelve percent of these classes had no Hispanic students, as compared to 10 percent in 1996. Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the University had not yet attained its goals.
Third, petitioner argues that considering race was not necessary because such consideration has had only a “‘minimal impact’ in advancing the [University’s] compelling interest.” Brief for Petitioner 46; see also Tr. of Oral Arg. 23:10–12; 24:13–25:2, 25:24–26:3. Again, the record does not support this assertion. In 2003, 11 percent of the Texas residents enrolled through holistic review were Hispanic and 3.5 percent were African-American. In 2007, by contrast, 16.9 percent of the Texas holistic-review freshmen were Hispanic and 6.8 percent were African-American. Those increases—of 54 percent and 94 percent, respectively—show that consideration of race has had a meaningful, if still limited, effect on the diversity of the University’s freshman class.
In any event, it is not a failure of narrow tailoring for the impact of racial consideration to be minor. The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.
Petitioner’s final argument is that “there are numerous other available race-neutral means of achieving” the University’s compelling interest. A review of the record reveals, however, that, at the time of petitioner’s application, none of her proposed alternatives was a workable means for the University to attain the benefits of diversity it sought. For example, petitioner suggests that the University could intensify its outreach efforts to African-American and Hispanic applicants. But the University submitted extensive evidence of the many ways in which it already had intensified its outreach efforts to those students. The University has created three new scholarship programs, opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events. Perhaps more significantly, in the wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using race-neutral holistic review. None of these efforts succeeded, and petitioner fails to offer any meaningful way in which the University could have improved upon them at the time of her application.
Petitioner also suggests altering the weight given to academic and socioeconomic factors in the University’s admissions calculus. This proposal ignores the fact that the University tried, and failed, to increase diversity through enhanced consideration of socioeconomic and other factors. And it further ignores this Court’s precedent making clear that the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence. Grutter.
Petitioner’s final suggestion is to uncap the Top Ten Percent Plan, and admit more—if not all—the University’s students through a percentage plan. As an initial matter, petitioner overlooks the fact that the Top Ten Percent Plan, though facially neutral, cannot be understood apart from its basic purpose, which is to boost minority enrollment. Percentage plans are “adopted with racially segregated neighborhoods and schools front and center stage.” Fisher I (Ginsburg, J., dissenting). “It is race consciousness, not blindness to race, that drives such plans.” Ibid. Consequently, petitioner cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy more race neutral.
Even if, as a matter of raw numbers, minority enrollment would increase under such a regime, petitioner would be hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone. That approach would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students. A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.
These are but examples of the general problem. Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others. This does not imply that students admitted through holistic review are necessarily more capable or more desirable than those admitted through the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to a diverse student body. Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it. See Grutter (explaining that percentage plans “may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university”); Fisher (5th Cir.) (pointing out that the Top Ten Percent Law leaves out students “who fell outside their high school’s top ten percent but excelled in unique ways that would enrich the diversity of [the University’s] educational experience” and “leaves a gap in an admissions process seeking to create the multi-dimensional diversity that [Regents of Univ. of Cal. v. Bakke] envisions”). At its center, the Top Ten Percent Plan is a blunt instrument that may well compromise the University’s own definition of the diversity it seeks.
In addition to these fundamental problems, an admissions policy that relies exclusively on class rank creates perverse incentives for applicants. Percentage plans “encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point averages.” Gratz (Ginsburg, J., dissenting).
For all these reasons, although it may be true that the Top Ten Percent Plan in some instances may provide a path out of poverty for those who excel at schools lacking in resources, the Plan cannot serve as the admissions solution that petitioner suggests. Wherever the balance between percentage plans and holistic review should rest, an effective admissions policy cannot prescribe, realistically, the exclusive use of a percentage plan.
In short, none of petitioner’s suggested alternatives—nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. Fisher I. The University has thus met its burden of showing that the admissions policy it used at the time it rejected petitioner’s application was narrowly tailored. * * * *
A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.
The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies. The judgment of the Court of Appeals is affirmed.
Justice Alito, with whom The Chief Justice and Justice Thomas join, dissenting.
Something strange has happened since our prior decision in this case. (Fisher I). In that decision, we held that strict scrutiny requires the University of Texas at Austin (UT or University) to show that its use of race and ethnicity in making admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends. Rejecting the argument that we should defer to UT’s judgment on those matters, we made it clear that UT was obligated (1) to identify the interests justifying its plan with enough specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met, and (2) to show that those requirements were in fact satisfied. On remand, UT failed to do what our prior decision demanded. The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests. This is nothing less than the plea for deference that we emphatically rejected in our prior decision. Today, however, the Court inexplicably grants that request. * * * *
I
Over the past 20 years, UT has frequently modified its admissions policies, and it has generally employed race and ethnicity in the most aggressive manner permitted under controlling precedent. {remainder of discussion of facts omitted}.
II
UT’s race-conscious admissions program cannot satisfy strict scrutiny. UT says that the program furthers its interest in the educational benefits of diversity, but it has failed to define that interest with any clarity or to demonstrate that its program is narrowly tailored to achieve that or any other particular interest. By accepting UT’s rationales as sufficient to meet its burden, the majority licenses UT’s perverse assumptions about different groups of minority students—the precise assumptions strict scrutiny is supposed to stamp out. * * * *
A
“The moral imperative of racial neutrality is the driving force of the Equal Protection Clause.” Richmond v. J. A. Croson Co. (Kennedy, J., concurring in part and concurring in judgment). * * * *
B
Here, UT has failed to define its interest in using racial preferences with clarity. As a result, the narrow tailoring inquiry is impossible, and UT cannot satisfy strict scrutiny.
When UT adopted its challenged policy, it characterized its compelling interest as obtaining a “‘critical mass’” of underrepresented minorities. * * * * But to this day, UT has not explained in anything other than the vaguest terms what it means by “critical mass.” * * * *
C
Although UT’s primary argument is that it need not point to any interest more specific than “the educational benefits of diversity,” it has—at various points in this litigation—identified four more specific goals: demographic parity, classroom diversity, intraracial diversity, and avoiding racial isolation. Neither UT nor the majority has demonstrated that any of these four goals provides a sufficient basis for satisfying strict scrutiny. And UT’s arguments to the contrary depend on a series of invidious assumptions.
1
First, both UT and the majority cite demographic data as evidence that African-American and Hispanic students are “underrepresented” at UT and that racial preferences are necessary to compensate for this underrepresentation. But neither UT nor the majority is clear about the relationship between Texas demographics and UT’s interest in obtaining a critical mass.
Does critical mass depend on the relative size of a particular group in the population of a State? For example, is the critical mass of African-Americans and Hispanics in Texas, where African-Americans are about 11.8% of the population and Hispanics are about 37.6%, different from the critical mass in neighboring New Mexico, where the African-American population is much smaller (about 2.1%) and the Hispanic population constitutes a higher percentage of the State’s total (about 46.3%)? * * * *
To the extent that UT is pursuing parity with Texas demographics, that is nothing more than “outright racial balancing,” which this Court has time and again held “patently unconstitutional.” * * * *
The record here demonstrates the pitfalls inherent in racial balancing. Although UT claims an interest in the educational benefits of diversity, it appears to have paid little attention to anything other than the number of minority students on its campus and in its classrooms. UT’s 2004 Proposal illustrates this approach by repeatedly citing numerical assessments of the racial makeup of the student body and various classes as the justification for adopting a race-conscious plan. Instead of focusing on the benefits of diversity, UT seems to have resorted to a simple racial census. * * * *
2
The other major explanation UT offered in the Proposal was its desire to promote classroom diversity. The Proposal stressed that UT “has not reached a critical mass at the classroom level.”
UT now equivocates, disclaiming any discrete interest in classroom diversity. Instead, UT has taken the position that the lack of classroom diversity was merely a “red flag that UT had not yet fully realized” “the constitutionally permissible educational benefits of diversity.”
* * * *[I]f UT is truly seeking to expose its students to a diversity of ideas and perspectives, its policy is poorly tailored to serve that end. UT’s own study—which the majority touts as the best “nuanced quantitative data” supporting UT’s position, demonstrated that classroom diversity was more lacking for students classified as Asian-American than for those classified as Hispanic. But the UT plan discriminates against Asian-American students. UT is apparently unconcerned that Asian-Americans “may be made to feel isolated or may be seen as . . . ‘spokesperson[s]’ of their race or ethnicity.” And unless the University is engaged in unconstitutional racial balancing based on Texas demographics (where Hispanics outnumber Asian-Americans), it seemingly views the classroom contributions of Asian-American students as less valuable than those of Hispanic students. In UT’s view, apparently, “Asian Americans are not worth as much as Hispanics in promoting ‘cross-racial understanding,’ breaking down ‘racial stereotypes,’ and enabling students to ‘better understand persons of different races.’” Brief for Asian American Legal Foundation et al. as Amici Curiae 11 (representing 117 Asian-American organizations). The majority opinion effectively endorses this view, crediting UT’s reliance on the classroom study as proof that the University assessed its need for racial discrimination (including racial discrimination that undeniably harms Asian-Americans) “with care.”
* * * * In addition to demonstrating that UT discriminates against Asian-American students, the classroom study also exhibits UT’s use of a few crude, overly simplistic racial and ethnic categories. Under the UT plan, both the favored and the disfavored groups are broad and consist of students from enormously diverse backgrounds (“five predefined racial categories”). Because “[c]rude measures of this sort threaten to reduce [students] to racial chits,” Parents Involved (opinion of Kennedy, J.), UT’s reliance on such measures further undermines any claim based on classroom diversity statistics, see id., at 723 (majority opinion) (criticizing school policies that viewed race in rough “white/nonwhite” or “black/’other’” terms); id., at 786 (opinion of Kennedy, J.) (faulting government for relying on “crude racial categories”); Metro Broadcasting, (Kennedy, J., dissenting) (concluding that “‘the very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals,’” and noting that if the government “‘is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935’”).
For example, students labeled “Asian American,” seemingly include “individuals of Chinese, Japanese, Korean, Vietnamese, Cambodian, Hmong, Indian and other backgrounds comprising roughly 60% of the world’s population,” Brief for Asian American Legal Foundation et al. as Amici Curiae. It would be ludicrous to suggest that all of these students have similar backgrounds and similar ideas and experiences to share. So why has UT lumped them together and concluded that it is appropriate to discriminate against Asian-American students because they are “overrepresented” in the UT student body? UT has no good answer. And UT makes no effort to ensure that it has a critical mass of, say, “Filipino Americans” or “Cambodian Americans.” As long as there are a sufficient number of “Asian Americans,” UT is apparently satisfied.
UT’s failure to provide any definition of the various racial and ethnic groups is also revealing. UT does not specify what it means to be “African-American,” “Hispanic,” “Asian American,” “Native American,” or “White.” And UT evidently labels each student as falling into only a single racial or ethnic group, without explaining how individuals with ancestors from different groups are to be characterized. As racial and ethnic prejudice recedes, more and more students will have parents (or grandparents) who fall into more than one of UT’s five groups. According to census figures, individuals describing themselves as members of multiple races grew by 32% from 2000 to 2010. A recent survey reported that 26% of Hispanics and 28% of Asian-Americans marry a spouse of a different race or ethnicity.
UT’s crude classification system is ill suited for the more integrated country that we are rapidly becoming. UT assumes that if an applicant describes himself or herself as a member of a particular race or ethnicity, that applicant will have a perspective that differs from that of applicants who describe themselves as members of different groups. But is this necessarily so? If an applicant has one grandparent, great-grandparent, or great-great-grandparent who was a member of a favored group, is that enough to permit UT to infer that this student’s classroom contribution will reflect a distinctive perspective or set of experiences associated with that group? UT does not say. It instead relies on applicants to “classify themselves.” Fisher I. This is an invitation for applicants to game the system.
Finally, it seems clear that the lack of classroom diversity is attributable in good part to factors other than the representation of the favored groups in the UT student population. UT offers an enormous number of classes in a wide range of subjects, and it gives undergraduates a very large measure of freedom to choose their classes. UT also offers courses in subjects that are likely to have special appeal to members of the minority groups given preferential treatment under its challenged plan, and this of course diminishes the number of other courses in which these students can enroll. Having designed an undergraduate program that virtually ensures a lack of classroom diversity, UT is poorly positioned to argue that this very result provides a justification for racial and ethnic discrimination, which the Constitution rarely allows.
3
UT’s purported interest in intraracial diversity, or “diversity within diversity,” also falls short. At bottom, this argument relies on the unsupported assumption that there is something deficient or at least radically different about the African-American and Hispanic students admitted through the Top Ten Percent Plan. * * * *
IV
It is important to understand what is and what is not at take in this case. What is not at stake is whether UT or any other university may adopt an admissions plan that results in a student body with a broad representation of students from all racial and ethnic groups. UT previously had a race-neutral plan that it claimed had “effectively compensated for the loss of affirmative action,” App. 396a, and UT could have taken other steps that would have increased the diversity of its admitted students without taking race or ethnic background into account.
What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve “the educational benefits of diversity,” without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives. Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable—and remarkably wrong.
Because UT has failed to satisfy strict scrutiny, I respectfully dissent.
Check Your Understanding
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Notes
1. Justice Alito’s dissenting opinion in Fisher II is substantially edited in the above text; it more than 50 pages. Justice Kennedy’s opinion for the majority is 20 pages. Thoughts?
2. Fisher II was decided by seven Justices. Justice Scalia died in February 2016, after the oral argument in December 2015, but before the Court’s opinion in June 2016.
Justice Elana Kagan did not participate in Fisher I or Fisher II. Justices make the decision whether or not to recuse themselves from a case (although presumably in consultation with their Justice colleagues) and need not provide a reason. Recusal is rooted in an actual or potential conflict of interest. In Fisher, the widely presumed reason is that Kagan served as Solicitor General for the United States when the Department of Justice (DOJ) made the decision to file an amicus brief in Fisher when it was pending in the Fifth Circuit Court of Appeals. As Solicitor General, Kagan would have made the ultimate decision to file the amicus brief and had ultimate responsibility for the content of the brief.
3. What do you think the United States argued in its 2010 amicus brief to the Fifth Circuit? Here is the introduction to the Brief’s Argument section (its “umbrella” section):
In the view of the United States, the University’s limited use of race in its admissions program falls within the constitutional bounds delineated by the Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003). The University has a compelling interest in attaining the level of student diversity necessary to fulfill its educational mission. Before instituting its policy, the University undertook a careful study of diversity in its undergraduate enrollment, including the relative absence of minority students in the small classes that permit the highest level of student interaction and therefore benefit most from students with a range of experiences and viewpoints. See id. at 330. Finding that it lacked adequate student diversity, the University instituted a narrowly tailored policy that considers race as one among many contextual elements that can indicate that the applicant will bring to the University experiences and attributes that increase the diversity of the student body. Notably, in keeping with the University’s broad conception of diversity, an individual of any race can benefit from having his or her race considered. And critically, the policy benefits the entire University community, and each individual within it, by helping to bring students of all races together into an educational environment where they can learn from and share experiences with one another.
Given the prominent position of the University in the State of Texas, its admissions policy is a crucial means of ensuring that “the path to leadership [is] visibly open to talented and qualified individuals of every race and ethnicity.” Grutter, 539 U.S. at 332. As the Supreme Court emphasized in Grutter, “[e]ffective participation of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.” Ibid. The challenged admissions policy is an important means of promoting that goal. That is particularly so because the University’s admissions policy considers race in an extremely limited way. In 2008, the year plaintiffs applied for admission, fully 80% of entering freshmen were selected through the Top Ten Percent program—an entirely race-neutral process. Race comes into play only when selecting the non-Top Ten Percent admittees, and then only as “a factor of a factor of a factor of a factor.” R.E. 49.
The University’s effort to promote diversity is a paramount government objective. See Grutter, 539 U.S. at 330-331. In view of the importance of diversity in educational institutions, the United States, through the Departments of Education and Justice, supports the efforts of school systems and post-secondary educational institutions that wish to develop admissions policies that endeavor to achieve the educational benefits of diversity in accordance with Grutter.
Brief for the United States as Amicus Curiae Supporting Appellees in Fisher v. University of Texas, Fisher v. Univ. of Texas at Austin, 631 F.3d 213 (5th Cir. 2011), vacated and remanded, 570 U.S. __, 133 S. Ct. 2411, 186 L. Ed. 2d 474 (2013).
C. “Affirmative Action” and the Political Process
Schuette v. Coalition to Defend Affirmation Action By Any Means Necessary (BAMN)
572 U.S. ___ (2014)
Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Alito join.
The Court in this case must determine whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, is invalid under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
In 2003 the Court reviewed the constitutionality of two admissions systems at the University of Michigan, one for its undergraduate class and one for its law school. The undergraduate admissions plan was addressed in Gratz v. Bollinger. The law school admission plan was addressed in Grutter v. Bollinger. Each admissions process permitted the explicit consideration of an applicant’s race. In Gratz, the Court invalidated the undergraduate plan as a violation of the Equal Protection Clause. In Grutter, the Court found no constitutional flaw in the law school admission plan’s more limited use of race-based preferences.
In response to the Court’s decision in Gratz, the university revised its undergraduate admissions process, but the revision still allowed limited use of race-based preferences. After a statewide debate on the question of racial preferences in the context of governmental decisionmaking, the voters, in 2006, adopted an amendment to the State Constitution prohibiting state and other governmental entities in Michigan from granting certain preferences, including race-based preferences, in a wide range of actions and decisions. Under the terms of the amendment, race-based preferences cannot be part of the admissions process for state universities. That particular prohibition is central to the instant case.
The ballot proposal was called Proposal 2 and, after it passed by a margin of 58 percent to 42 percent, the resulting enactment became Article I, § 26, of the Michigan Constitution. As noted, the amendment is in broad terms. Section 26 states, in relevant part, as follows:
“(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
“(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
“(3) For the purposes of this section ‘state’ includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.”
Section 26 was challenged in two cases. Among the plaintiffs in the suits were the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN); students; faculty; and prospective applicants to Michigan public universities.
[In 2008, the District Court granted summary judgment to Michigan, thus upholding § 26 (Proposal 2). A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment, thus invalidating § 26. In a closely divided decision, the Sixth Circuit en banc agreed that § 26 was unconstitutional. The United States Supreme Court granted certiorari.]
Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.
This Court has noted that some States have decided to prohibit race-conscious admissions policies. In Grutter, the Court noted: “Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.” In this way, Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States. There was recognition that our federal structure “permits ‘innovation and experimentation’ ” and “enables greater citizen ‘involvement in democratic processes.’ ” While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education.
In Michigan, the State Constitution invests independent boards of trustees with plenary authority over public universities, including admissions policies. Mich. Const., Art. VIII, § 5. Although the members of the boards are elected, some evidence in the record suggests they delegated authority over admissions policy to the faculty. But whether the boards or the faculty set the specific policy, Michigan’s public universities did consider race as a factor in admissions decisions before 2006.
In holding § 26 invalid in the context of student admissions at state universities, the Court of Appeals relied in primary part on Washington v. Seattle School Dist. No. 1 (1982) {Note: This is NOT Parents Involved v. Seattle Schools decided in 2007}. * * * * But that determination extends Seattle’s holding in a case presenting quite different issues to reach a conclusion that is mistaken here. Before explaining this further, it is necessary to consider the relevant cases that preceded Seattle and the background against which Seattle itself arose.
Though it has not been prominent in the arguments of the parties, this Court’s decision in Reitman v. Mulkey (1967) is a proper beginning point for discussing the controlling decisions. In Mulkey, voters amended the California Constitution to prohibit any state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis. Two different cases gave rise to Mulkey. In one a couple could not rent an apartment, and in the other a couple were evicted from their apartment. Those adverse actions were on account of race. In both cases the complaining parties were barred, on account of race, from invoking the protection of California’s statutes; and, as a result, they were unable to lease residential property. This Court concluded that the state constitutional provision was a denial of equal protection. * * * * In a dissent joined by three other Justices, Justice Harlan disagreed with the majority’s holding. The dissent reasoned that California, by the action of its voters, simply wanted the State to remain neutral in this area, so that the State was not a party to discrimination. That dissenting voice did not prevail against the majority’s conclusion that the state action in question encouraged discrimination, causing real and specific injury.
The next precedent of relevance, Hunter v. Erickson (1969) is central to the arguments the respondents make in the instant case. In Hunter the Court for the first time elaborated what the Court of Appeals here styled the “political process” doctrine. There, the Akron City Council found that the citizens of Akron consisted of “‘people of different race[s], . . . many of whom live in circumscribed and segregated areas, under sub-standard unhealthful, unsafe, unsanitary and overcrowded conditions, because of discrimination in the sale, lease, rental and financing of housing.’” To address the problem, Akron enacted a fair housing ordinance to prohibit that sort of discrimination. In response, voters amended the city charter to overturn the ordinance and to require that any additional antidiscrimination housing ordinance be approved by referendum. But most other ordinances “regulating the real property market” were not subject to those threshold requirements. The plaintiff, a black woman in Akron, Ohio, alleged that her real estate agent could not show her certain residences because the owners had specified they would not sell to black persons.
Central to the Court’s reasoning in Hunter was that the charter amendment was enacted in circumstances where widespread racial discrimination in the sale and rental of housing led to segregated housing, forcing many to live in “‘unhealthful, unsafe, unsanitary and overcrowded conditions.’” The Court stated: “It is against this background that the referendum required by [the charter amendment] must be assessed.” Akron attempted to characterize the charter amendment “simply as a public decision to move slowly in the delicate area of race relations” and as a means “to allow the people of Akron to participate” in the decision. The Court rejected Akron’s flawed “justifications for its discrimination,” justifications that by their own terms had the effect of acknowledging the targeted nature of the charter amendment. * * * * The Court found that the city charter amendment, by singling out antidiscrimination ordinances, “places special burden on racial minorities within the governmental process,” thus becoming as impermissible as any other government action taken with the invidious intent to injure a racial minority. Justice Harlan filed a concurrence. He argued the city charter amendment “has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.” * * * * Thus, in Mulkey and Hunter, there was a demonstrated injury on the basis of race that, by reasons of state encouragement or participation, became more aggravated.
Seattle is the third case of principal relevance here. There, the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools. Voters who opposed the school board’s busing plan passed a state initiative that barred busing to desegregate. The Court first determined that, although “white as well as Negro children benefit from” diversity, the school board’s plan “inures primarily to the benefit of the minority.” The Court next found that “the practical effect” of the state initiative was to “remov[e] the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests” because advocates of busing “now must seek relief from the state legislature, or from the statewide electorate.” The Court therefore found that the initiative had “explicitly us[ed] the racial nature of a decision to determine the decisionmaking process.” (emphasis deleted).
Seattle is best understood as a case in which the state action in question (the bar on busing enacted by the State’s voters) had the serious risk, if not purpose, of causing specific injuries on account of race, just as had been the case in Mulkey and Hunter. Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that “permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1 (Breyer, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically, the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle.
As this Court held in Parents Involved, the school board’s purported remedial action would not be permissible today absent a showing of de jure segregation. That holding prompted Justice Breyer to observe in dissent, as noted above, that one permissible reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools. In all events we must understand Seattle as Seattle understood itself, as a case in which neither the State nor the United States “challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation.” In other words the legitimacy and constitutionality of the remedy in question (busing for desegregation) was assumed, and Seattle must be understood on that basis. Seattle involved a state initiative that “was carefully tailored to interfere only with desegregative busing.” The Seattle Court, accepting the validity of the school board’s busing remedy as a predicate to its analysis of the constitutional question, found that the State’s disapproval of the school board’s busing remedy was an aggravation of the very racial injury in which the State itself was complicit.
The broad language used in Seattle, however, went well beyond the analysis needed to resolve the case. The Court there seized upon the statement in Justice Harlan’s concurrence in Hunter that the procedural change in that case had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.” That language, taken in the context of the facts in Hunter, is best read simply to describe the necessity for finding an equal protection violation where specific injuries from hostile discrimination were at issue. The Seattle Court, however, used the language from the Hunter concurrence to establish a new and far-reaching rationale. Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities . . . consider” the policy to be “‘in their interest,’” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny. In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.
* * * * The {Sixth Circuit’s} expansive reading of Seattle has no principled limitation and raises serious questions of compatibility with the Court’s settled equal protection jurisprudence. To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of Appeals elaborated and respondents seek to establish here would contradict central equal protection principles.
In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.” Shaw v. Reno (1993); see also Metro Broadcasting, Inc. v. FCC (1990) (Kennedy, J., dissenting) (rejecting the “demeaning notion that members of . . . defined racial groups ascribe to certain ‘minority views’ that must be different from those of other citizens”). It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control, as the Court of Appeals held it did in this case. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. But in a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend. Were courts to embark upon this venture not only would it be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.
Even assuming these initial steps could be taken in a manner consistent with a sound analytic and judicial framework, the court would next be required to determine the policy realms in which certain groups—groups defined by race—have a political interest. That undertaking, again without guidance from any accepted legal standards, would risk, in turn, the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Thus could racial antagonisms and conflict tend to arise in the context of judicial decisions as courts undertook to announce what particular issues of public policy should be classified as advantageous to some group defined by race. This risk is inherent in adopting the Seattle formulation.
There would be no apparent limiting standards defining what public policies should be included in what Seattle called policies that “inur[e] primarily to the benefit of the minority” and that “minorities . . . consider” to be “ ‘in their interest.’ ” Those who seek to represent the interests of particular racial groups could attempt to advance those aims by demanding an equal protection ruling that any number of matters be foreclosed from voter review or participation. In a nation in which governmental policies are wide ranging, those who seek to limit voter participation might be tempted, were this Court to adopt the Seattle formulation, to urge that a group they choose to define by race or racial stereotypes are advantaged or disadvantaged by any number of laws or decisions. Tax policy, housing subsidies, wage regulations, and even the naming of public schools, highways, and monuments are just a few examples of what could become a list of subjects that some organizations could insist should be beyond the power of voters to decide, or beyond the power of a legislature to decide when enacting limits on the power of local authorities or other governmental entities to address certain subjects. Racial division would be validated, not discouraged, were the Seattle formulation, and the reasoning of the Court of Appeals in this case, to remain in force.
Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.
One response to these concerns may be that objections to the larger consequences of the Seattle formulation need not be confronted in this case, for here race was an undoubted subject of the ballot issue. But a number of problems raised by Seattle, such as racial definitions, still apply. And this principal flaw in the ruling of the Court of Appeals does remain: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools. Here there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan governmental entities should be ended.
* * * * By approving Proposal 2 and thereby adding § 26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States “respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times.” Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.
The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, Brown v. Board of Education (1954); a wrongful invasion of the home, Silverman v. United States (1961); or punishing a protester whose views offend others, Texas v. Johnson (1989); and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.
The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. * * * *
For reasons already discussed, Mulkey, Hunter, and Seattle are not precedents that stand for the conclusion that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race. What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the grant of favored status to persons in some racial categories and not others. The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed to increase diversity—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism.
This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
Chief Justice Roberts, concurring.
The dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions, while nonetheless concluding that it “do[es] not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court.” (opinion of Sotomayor, J.). The dissent concedes that the governing boards of the State’s various universities could have implemented a policy making it illegal to “discriminate against, or grant preferential treatment to,” any individual on the basis of race. On the dissent’s view, if the governing boards conclude that drawing racial distinctions in university admissions is undesirable or counterproductive, they are permissibly exercising their policymaking authority. But others who might reach the same conclusion are failing to take race seriously.
The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” And it urges that “[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger (2003) (Scalia, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.
Even taking this Court’s sorry line of race-based-admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits? Reacting to those race-based-admissions decisions, some States—whether deterred by the prospect of costly litigation; aware that Grutter’s bell may soon toll; or simply opposed in principle to the notion of “benign” racial discrimination—have gotten out of the racial-preferences business altogether. And with our express encouragement: “Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaging in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.” Respondents seem to think this admonition was merely in jest. The experiment, they maintain, is not only over; it never rightly began. Neither the people of the States nor their legislatures ever had the option of directing subordinate public-university officials to cease considering the race of applicants, since that would deny members of those minority groups the option of enacting a policy designed to further their interest, thus denying them the equal protection of the laws. Never mind that it is hotly disputed whether the practice of race-based admissions is ever in a racial minority’s interest. And never mind that, were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional.
* * * * I part ways with Hunter, Seattle, and (I think) the plurality for an additional reason: Each endorses a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. Few equal-protection theories have been so squarely and soundly rejected. “An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent,” and that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” * * * *
Notwithstanding our dozens of cases confirming the exception-less nature of the Washington v. Davis rule, the plurality opinion leaves ajar an effects-test escape hatch modeled after Hunter and Seattle, suggesting that state action denies equal protection when it “ha[s] the serious risk, if not purpose, of causing specific injuries on account of race,” or is either “designed to be used, or . . . likely to be used, to encourage infliction of injury by reason of race.” (emphasis added). Since these formulations enable a determination of an equal-protection violation where there is no discriminatory intent, they are inconsistent with the long Washington v. Davis line of cases.
Respondents argue that we need not bother with the discriminatory-purpose test, since § 26 may be struck more straightforwardly as a racial “classification.” Admitting (as they must) that § 26 does not on its face “distribut[e] burdens or benefits on the basis of individual racial classifications,” Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), respondents rely on Seattle’s statement that “when the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment,” then that “singling out” is a racial classification. But this is just the political-process theory bedecked in different doctrinal dress. A law that “neither says nor implies that persons are to be treated differently on account of their race” is not a racial classification. That is particularly true of statutes mandating equal treatment. “[A] law that prohibits the State from classifying individuals by race . . . a fortiori does not classify individuals by race.” {Coalition for Economic Equity v. Wilson, 9th Circuit (O’Scannlain, J.)}.
Thus, the question in this case, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the action reflects a racially discriminatory purpose. Seattle stresses that “singling out the political processes affecting racial issues for uniquely disadvantageous treatment inevitably raises dangers of impermissible motivation.” True enough, but that motivation must be proved. And respondents do not have a prayer of proving it here. The District Court noted that, under “conventional equal protection” doctrine, the suit was “doom[ed].” Though the Court of Appeals did not opine on this question, I would not leave it for them on remand. In my view, any law expressly requiring state actors to afford all persons equal protection of the laws (such as Initiative 350 in Seattle, though not the charter amendment in Hunter) does not—cannot—deny “to any person . . . equal protection of the laws,” U. S. Const., Amdt. 14, § 1, regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court.
As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.
Justice Breyer, concurring in the judgment.
* * * * I continue to believe that the Constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan Constitution. The serious educational problems that faced Americans at the time this Court decided Grutter endure. * * * *
This case, in contrast {to Hunter and Seattle} does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another. Rather, here, Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art. VIII, § 5, but those boards delegated admissions-related decisionmaking authority to unelected university faculty members and administrators. Although the boards unquestionably retained the power to set policy regarding race-conscious admissions, in fact faculty members and administrators set the race-conscious admissions policies in question. (It is often true that elected bodies—including, for example, school boards, city councils, and state legislatures—have the power to enact policies, but in fact delegate that power to administrators.) Although at limited times the university boards were advised of the content of their race-conscious admissions policies, to my knowledge no board voted to accept or reject any of those policies. Thus, un-elected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan’s constitutional amendment. The amendment took decisionmaking authority away from these unelected actors and placed it in the hands of the voters.
Why does this matter? For one thing, considered conceptually, the doctrine set forth in Hunter and Seattle does not easily fit this case. In those cases minorities had participated in the political process and they had won. The majority’s subsequent reordering of the political process repealed the minority’s successes and made it more difficult for the minority to succeed in the future. The majority thereby diminished the minority’s ability to participate meaningfully in the electoral process. But one cannot as easily characterize the movement of the decisionmaking mechanism at issue here—from an administrative process to an electoral process—as diminishing the minority’s ability to participate meaningfully in the political process. There is no prior electoral process in which the minority participated.
For another thing, to extend the holding of Hunter and Seattle to reach situations in which decisionmaking authority is moved from an administrative body to a political one would pose significant difficulties.
* * * *
Finally, the principle that underlies Hunter and Seattle runs up against a competing principle, discussed above. This competing principle favors decisionmaking though the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.
As I have said, my discussion here is limited to circumstances in which decisionmaking is moved from an un-elected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educational benefits of a diverse student body. We need now decide no more than whether the Federal Constitution permits Michigan to apply its constitutional amendment in those circumstances. I would hold that it does. Therefore, I concur in the judgment of the Court.
Justice Sotomayor, with whom Justice Ginsburg joins, dissenting.
We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self-government. That right is the bedrock of our democracy, for it preserves all other rights.
Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted. This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration. Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.
This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities. Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan’s public colleges and universities—including race-sensitive admissions policies—were in the hands of each institution’s governing board. The members of those boards are nominated by political parties and elected by the citizenry in statewide elections. After over a century of being shut out of Michigan’s institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took into account the benefits of racial diversity. And this Court twice blessed such efforts—first in Regents of Univ. of Cal. v. Bakke (1978), and again in Grutter v. Bollinger (2003), a case that itself concerned a Michigan admissions policy.
In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies. Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through general public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies. When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy. Our system of government encourages—and indeed, depends on—that type of democratic action.
But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities. They did so in the 2006 election by amending the Michigan Constitution to enact Art. I, § 26, which provides in relevant part that Michigan’s public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
As a result of § 26, there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position. The same options are available to a citizen who wants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.
Our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else. This Court has held that the Fourteenth Amendment does not tolerate “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Washington v. Seattle School Dist. No. 1 (1982). Such restructuring, the Court explained, “is no more permissible than denying [the minority] the [right to] vote, on an equal basis with others.” Hunter v. Erickson (1969). In those cases—Hunter and Seattle—the Court recognized what is now known as the “political-process doctrine”: When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.
Today, disregarding stare decisis, a majority of the Court effectively discards those precedents. The plurality does so, it tells us, because the freedom actually secured by the Constitution is the freedom of self-government—because the majority of Michigan citizens “exercised their privilege to enact laws as a basic exercise of their democratic power.” It would be “demeaning to the democratic process,” the plurality concludes, to disturb that decision in any way. This logic embraces majority rule without an important constitutional limit.
The plurality’s decision fundamentally misunderstands the nature of the injustice worked by § 26. This case is not, as the plurality imagines, about “who may resolve” the debate over the use of race in higher education admissions. I agree wholeheartedly that nothing vests the resolution of that debate exclusively in the courts or requires that we remove it from the reach of the electorate. Rather, this case is about how the debate over the use of race-sensitive admissions policies may be resolved—that is, it must be resolved in constitutionally permissible ways. While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures. Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids, the Court ends the debate over race-sensitive admissions policies in Michigan in a manner that contravenes constitutional protections long recognized in our precedents.
Like the plurality, I have faith that our citizenry will continue to learn from this Nation’s regrettable history; that it will strive to move beyond those injustices towards a future of equality. And I, too, believe in the importance of public discourse on matters of public policy. But I part ways with the plurality when it suggests that judicial intervention in this case “impede[s]” rather than “advance[s]” the democratic process and the ultimate hope of equality. I firmly believe that our role as judges includes policing the process of self-government and stepping in when necessary to secure the constitutional guarantee of equal protection. Because I would do so here, I respectfully dissent.
I
For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor. Because the political-process doctrine is best understood against the backdrop of this history, I will briefly trace its course.
The Fifteenth Amendment, ratified after the Civil War, promised to racial minorities the right to vote. But many States ignored this promise. In addition to outright tactics of fraud, intimidation, and violence, there are countless examples of States categorically denying to racial minorities access to the political process. * * * *
This Court did not stand idly by. In Alabama, for example, the legislature responded to increased black voter registration in the city of Tuskegee by amending the State Constitution to authorize legislative abolition of the county in which Tuskegee was located, Ala. Const. Amdt. 132 (1957), repealed by Ala. Const. Amdt. 406 (1982), and by redrawing the city’s boundaries to remove all the black voters “while not removing a single white voter,” Gomillion v. Lightfoot (1960). The Court intervened, finding it “inconceivable that guaranties embedded in the Constitution” could be “manipulated out of existence” by being “cloaked in the garb of [political] realignment.”
This Court’s landmark ruling in Brown v. Board of Education (1954) triggered a new era of political restructuring, this time in the context of education. * * * *
The Court remained true to its command in Brown. In Arkansas, for example, it enforced a desegregation order against the Little Rock school board. Cooper v. Aaron (1958). On the very day the Court announced that ruling, the Arkansas Legislature responded by changing the rules. It enacted a law permitting the Governor to close any public school in the State, and stripping local school districts of their decisionmaking authority so long as the Governor determined that local officials could not maintain “‘a general, suitable, and efficient educational system.’” The then-Governor immediately closed all of Little Rock’s high schools.
The States’ political restructuring efforts in the 1960’s and 1970’s went beyond the context of education. Many States tried to suppress the political voice of racial minorities more generally by reconfiguring the manner in which they filled vacancies in local offices, often transferring authority from the electorate (where minority citizens had a voice at the local level) to the States’ executive branch (where minorities wielded little if any influence). * * * *
II
It was in this historical context that the Court intervened in Hunter v. Erickson, (1969), and Washington v. Seattle School Dist. No. 1 (1982). Together, Hunter and Seattle recognized a fundamental strand of this Court’s equal protection jurisprudence: the political-process doctrine. To understand that doctrine fully, it is necessary to set forth in detail precisely what the Court had before it, and precisely what it said. For to understand Hunter and Seattle is to understand why those cases straightforwardly resolve this one.
* * * *
A
{extensive discussion of Hunter and Seattle omitted}
B
Hunter and Seattle vindicated a principle that is as elementary to our equal protection jurisprudence as it is essential: The majority may not suppress the minority’s right to participate on equal terms in the political process. Under this doctrine, governmental action deprives minority groups of equal protection when it (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority,” Seattle; and (2) alters the political process in a manner that uniquely burdens racial minorities’ ability to achieve their goals through that process. A faithful application of the doctrine resoundingly resolves this case in respondents’ favor.
1
Section 26 has a “racial focus.” That is clear from its text, which prohibits Michigan’s public colleges and universities from “grant[ing] preferential treatment to any individual or group on the basis of race.” Mich. Const., Art. I, § 26. Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” as they are designed to increase minorities’ access to institutions of higher education.
Petitioner argues that race-sensitive admissions policies cannot “inur[e] primarily to the benefit of the minority,” as the Court has upheld such policies only insofar as they further “the educational benefits that flow from a diverse student body,” Grutter. But there is no conflict between this Court’s pronouncement in Grutter and the common-sense reality that race-sensitive admissions policies benefit minorities. Rather, race-sensitive admissions policies further a compelling state interest in achieving a diverse student body precisely because they increase minority enrollment, which necessarily benefits minority groups. In other words, constitutionally permissible race-sensitive admissions policies can both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit of racial minorities. There is nothing mutually exclusive about the two.
It is worth emphasizing, moreover, that § 26 is relevant only to admissions policies that have survived strict scrutiny under Grutter; other policies, under this Court’s rulings, would be forbidden with or without § 26. A Grutter-compliant admissions policy must use race flexibly, not maintain a quota; must be limited in time; and must be employed only after “serious, good faith consideration of workable race-neutral alternatives.” The policies banned by § 26 meet all these requirements and thus already constitute the least restrictive ways to advance Michigan’s compelling interest in diversity in higher education.
2
{Extensive citations and quotations from amicus briefs and secondary sources in this section omitted}.
Section 26 restructures the political process in Michigan in a manner that places unique burdens on racial minorities. It establishes a distinct and more burdensome political process for the enactment of admissions plans that consider racial diversity.
Long before the enactment of § 26, the Michigan Constitution granted plenary authority over all matters relating to Michigan’s public universities, including admissions criteria, to each university’s eight-member governing board.
* * * * The boards are indisputably a part of the political process in Michigan.
* * * *
Before the enactment of § 26, Michigan’s political structure permitted both supporters and opponents of race-sensitive admissions policies to vote for their candidates of choice and to lobby the elected and politically accountable boards. Section 26 reconfigured that structure. After § 26, the boards retain plenary authority over all admissions criteria except for race-sensitive admissions policies. To change admissions policies on this one issue, a Michigan citizen must instead amend the Michigan Constitution. That is no small task. To place a proposed constitutional amendment on the ballot requires either the support of two-thirds of both Houses of the Michigan Legislature or a vast number of signatures from Michigan voters—10 percent of the total number of votes cast in the preceding gubernatorial election. See Mich. Const., Art. XII, §§ 1, 2. Since more than 3.2 million votes were cast in the 2010 election for Governor, more than 320,000 signatures are currently needed to win a ballot spot. Moreover, “[t]o account for invalid and duplicative signatures, initiative sponsors ‘need to obtain substantially more than the actual required number of signatures, typically by a 25% to 50% margin.’ ”
And the costs of qualifying an amendment are significant. For example, “[t]he vast majority of petition efforts . . . require initiative sponsors to hire paid petition circulators, at significant expense.” In addition to the cost of collecting signatures, campaigning for a majority of votes is an expensive endeavor, and “organizations advocating on behalf of marginalized groups remain . . . outmoneyed by corporate, business, and professional organizations.” In 2008, for instance, over \$800 million was spent nationally on state-level initiative and referendum campaigns, nearly \$300 million more than was spent in the 2006 cycle. Donovan 98. “In several states, more money [is] spent on ballot initiative campaigns than for all other races for political office combined.” Indeed, the amount spent on state-level initiative and referendum campaigns in 2008 eclipsed the \$740.6 million spent by President Obama in his 2008 presidential campaign.
Michigan’s Constitution has only rarely been amended through the initiative process. Between 1914 and 2000, voters have placed only 60 statewide initiatives on the Michigan ballot, of which only 20 have passed. Minority groups face an especially uphill battle. In fact, “[i]t is difficult to find even a single statewide initiative in any State in which voters approved policies that explicitly favor racial or ethnic minority groups.”
This is the onerous task that § 26 forces a Michigan citizen to complete in order to change the admissions policies of Michigan’s public colleges and universities with respect to racial sensitivity. While substantially less grueling paths remain open to those advocating for any other admissions policies, a constitutional amendment is the only avenue by which race-sensitive admissions policies may be obtained. The effect of § 26 is that a white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy, whereas a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy.
Such reordering of the political process contravenes Hunter and Seattle. Where, as here, the majority alters the political process to the detriment of a racial minority, the governmental action is subject to strict scrutiny. Michigan does not assert that § 26 satisfies a compelling state interest. That should settle the matter.
1
The plurality sees it differently. Disregarding the language used in Hunter, the plurality asks us to contort that case into one that “rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities.” And the plurality recasts Seattle “as a case in which the state action in question . . . had the serious risk, if not purpose, of causing specific injuries on account of race.” According to the plurality, the Hunter and Seattle Courts were not concerned with efforts to reconfigure the political process to the detriment of racial minorities; rather, those cases invalidated governmental actions merely because they reflected an invidious purpose to discriminate. This is not a tenable reading of those cases.
The plurality identifies “invidious discrimination” as the “necessary result” of the restructuring in Hunter. It is impossible to assess whether the housing amendment in Hunter was motivated by discriminatory purpose, for the opinion does not discuss the question of intent. What is obvious, however, is that the possibility of invidious discrimination played no role in the Court’s reasoning. We ordinarily understand our precedents to mean what they actually say, not what we later think they could or should have said. The Hunter Court was clear about why it invalidated the Akron charter amendment: It was impermissible as a restructuring of the political process, not as an action motivated by discriminatory intent.
Similarly, the plurality disregards what Seattle actually says and instead opines that “the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.” Here, the plurality derives its conclusion not from Seattle itself, but from evidence unearthed more than a quarter-century later in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007). * * * * It follows, according to the plurality, that Seattle’s desegregation plan was constitutionally required, so that the initiative halting the plan was an instance of invidious discrimination aimed at inflicting a racial injury.
* * * * And what now of the political-process doctrine? After the plurality’s revision of Hunter and Seattle, it is unclear what is left. The plurality certainly does not tell us. On this point, and this point only, I agree with Justice Scalia that the plurality has rewritten those precedents beyond recognition.
2
Justice Breyer concludes that Hunter and Seattle do not apply. * * * *
The salient point is this: Although the elected and politically accountable boards may well entrust university officials with certain day-to-day admissions responsibilities, they often weigh in on admissions policies themselves and, at all times, they retain complete supervisory authority over university officials and over all admissions decisions. * * * *
III
The political-process doctrine not only resolves this case as a matter of stare decisis; it is correct as a matter of first principles.
A
Under our Constitution, majority rule is not without limit. Our system of government is predicated on an equilibrium between the notion that a majority of citizens may determine governmental policy through legislation enacted by their elected representatives, and the overriding principle that there are nonetheless some things the Constitution forbids even a majority of citizens to do. The political-process doctrine, grounded in the Fourteenth Amendment, is a central check on majority rule.
The Fourteenth Amendment instructs that all who act for the government may not “deny to any person . . . the equal protection of the laws.” We often think of equal protection as a guarantee that the government will apply the law in an equal fashion—that it will not intentionally discriminate against minority groups. But equal protection of the laws means more than that; it also secures the right of all citizens to participate meaningfully and equally in the process through which laws are created.
Few rights are as fundamental as the right to participate meaningfully and equally in the process of government. See Yick Wo v. Hopkins (1886) (political rights are “fundamental” because they are “preservative of all rights”). That right is the bedrock of our democracy, recognized from its very inception. See J. Ely, Democracy and Distrust 87 (1980) (the Constitution “is overwhelmingly concerned, on the one hand, with procedural fairness in the resolution of individual disputes,” and on the other, “with ensuring broad participation in the processes and distributions of government”).
This should come as no surprise. The political process is the channel of change. It is the means by which citizens may both obtain desirable legislation and repeal undesirable legislation. Of course, we do not expect minority members of our society to obtain every single result they seek through the political process—not, at least, when their views conflict with those of the majority. The minority plainly does not have a right to prevail over majority groups in any given political contest. But the minority does have a right to play by the same rules as the majority. It is this right that Hunter and Seattle so boldly vindicated.
This right was hardly novel at the time of Hunter and Seattle. For example, this Court focused on the vital importance of safeguarding minority groups’ access to the political process in United States v. Carolene Products Co. (1938), a case that predated Hunter by 30 years. In a now-famous footnote, the Court explained that while ordinary social and economic legislation carries a presumption of constitutionality, the same may not be true of legislation that offends fundamental rights or targets minority groups. Citing cases involving restrictions on the right to vote, restraints on the dissemination of information, interferences with political organizations, and prohibition of peaceable assembly, the Court recognized that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” could be worthy of “more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” Carolene Products, n. 4, see also Ely (explaining that “[p]aragraph two {of Carolene Products footnote 4} suggests that it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open”). The Court also noted that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Carolene Products, n. 4, see also Ely (explaining that “[p]aragraph three {of Carolene Products footnote 4} suggests that the Court should also concern itself with what majorities do to minorities, particularly mentioning laws ‘directed at’ religious, national and racial minorities and those infected by prejudice against them”).
The values identified in Carolene Products lie at the heart of the political-process doctrine. Indeed, Seattle explicitly relied on Carolene Products. These values are central tenets of our equal protection jurisprudence.
Our cases recognize at least three features of the right to meaningful participation in the political process. Two of them, thankfully, are uncontroversial. First, every eligible citizen has a right to vote. See Shaw v. Reno (1993). This, woefully, has not always been the case. But it is a right no one would take issue with today. Second, the majority may not make it more difficult for the minority to exercise the right to vote. This, too, is widely accepted. After all, the Court has invalidated grandfather clauses, good character requirements, poll taxes, and gerrymandering provisions. The third feature, the one the plurality dismantles today, is that a majority may not reconfigure the existing political process in a manner that creates a two-tiered system of political change, subjecting laws designed to protect or benefit discrete and insular minorities to a more burdensome political process than all other laws. This is the political-process doctrine of Hunter and Seattle.
My colleagues would stop at the second. The plurality embraces the freedom of “self-government” without limits. And Justice Scalia values a “near-limitless” notion of state sovereignty. The wrong sought to be corrected by the political-process doctrine, they say, is not one that should concern us and is in any event beyond the reach of the Fourteenth Amendment. As they see it, the Court’s role in protecting the political process ends once we have removed certain barriers to the minority’s participation in that process. Then, they say, we must sit back and let the majority rule without the key constitutional limit recognized in Hunter and Seattle.
That view drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why? For the same reason we guard the right of every citizen to vote. If “[e]fforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot,” were “‘second-generation barriers’” to minority voting, Shelby County v. Holder (2013) (Ginsburg, J., dissenting) efforts to reconfigure the political process in ways that uniquely disadvantage minority groups who have already long been disadvantaged are third-generation barriers. For as the Court recognized in Seattle, “minorities are no less powerless with the vote than without it when a racial criterion is used to assign governmental power in such a way as to exclude particular racial groups ‘from effective participation in the political proces[s].’”
To accept the first two features of the right to meaningful participation in the political process, while renouncing the third, paves the way for the majority to do what it has done time and again throughout our Nation’s history: afford the minority the opportunity to participate, yet manipulate the ground rules so as to ensure the minority’s defeat. This is entirely at odds with our idea of equality under the law.
To reiterate, none of this is to say that the political-process doctrine prohibits the exercise of democratic self-government. Nothing prevents a majority of citizens from pursuing or obtaining its preferred outcome in a political contest. Here, for instance, I agree with the plurality that Michiganders who were unhappy with Grutter were free to pursue an end to race-sensitive admissions policies in their State. They were free to elect governing boards that opposed race-sensitive admissions policies or, through public discourse and dialogue, to lobby the existing boards toward that end. They were also free to remove from the boards the authority to make any decisions with respect to admissions policies, as opposed to only decisions concerning race-sensitive admissions policies. But what the majority could not do, consistent with the Constitution, is change the ground rules of the political process in a manner that makes it more difficult for racial minorities alone to achieve their goals. In doing so, the majority effectively rigs the contest to guarantee a particular outcome. That is the very wrong the political-process doctrine seeks to remedy. The doctrine “hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course.” {quote from 6th Circuit opinion}.
B
The political-process doctrine also follows from the rest of our equal protection jurisprudence—in particular, our reapportionment and vote dilution cases. * * * *
IV
My colleagues claim that the political-process doctrine is unadministrable and contrary to our more recent equal protection precedents. It is only by not acknowledging certain strands of our jurisprudence that they can reach such a conclusion.
A
Start with the claim that Hunter and Seattle are no longer viable because of the cases that have come after them. I note that in the view of many, it is those precedents that have departed from the mandate of the Equal Protection Clause in the first place, by applying strict scrutiny to actions designed to benefit rather than burden the minority. See Gratz (Ginsburg, J., dissenting) (“[A]s I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated” (citation omitted)); id., at 282 (Breyer, J., concurring in judgment) (“I agree. . . that, in implementing the Constitution’s equality instruction, government decisionmakers may properly distinguish between policies of inclusion and exclusion, for the former are more likely to prove consistent with the basic constitutional obligation that the law respect each individual equally” (citation omitted)); Adarand Constructors, Inc. v. Peña (1995) (Stevens, J., dissenting) (“There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society”). * * * *
But even assuming that strict scrutiny should apply to policies designed to benefit racial minorities, that view is not inconsistent with Hunter and Seattle. For nothing the Court has said in the last 32 years undermines the principles announced in those cases.
{extended discussion of Scalia’s opinion omitted}
B
* * * * My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out. We have seen this reasoning before. See Parents Involved (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”). It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as “not sufficient” to resolve cases of this nature. Id. (Kennedy, J., concurring in part and concurring in judgment). While “[t]he enduring hope is that race should not matter[,] the reality is that too often it does.” Id.
Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. And although we have made great strides, “voting discrimination still exists; no one doubts that.” Shelby County.
Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. See Gratz (Ginsburg, J., dissenting) (cataloging the many ways in which “the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools,” in areas like employment, poverty, access to health care, housing, consumer transactions, and education); Adarand (Ginsburg, J., dissenting) (recognizing that the “lingering effects” of discrimination, “reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods”).
And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
V
Although the only constitutional rights at stake in this case are process-based rights, the substantive policy at issue is undeniably of some relevance to my colleagues. See plurality opinion (suggesting that race-sensitive admissions policies have the “potential to become . . . the source of the very resentments and hostilities based on race that this Nation seeks to put behind it”). I will therefore speak in response.
A
For over a century, racial minorities in Michigan fought to bring diversity to their State’s public colleges and universities. Before the advent of race-sensitive admissions policies, those institutions, like others around the country, were essentially segregated. In 1868, two black students were admitted to the University of Michigan, the first of their race. In 1935, over six decades later, there were still only 35 black students at the University. By 1954, this number had risen to slightly below 200. And by 1966, to around 400, among a total student population of roughly 32,500—barely over 1 percent. The numbers at the University of Michigan Law School are even more telling. During the 1960’s, the Law School produced 9 black graduates among a total of 3,041—less than three-tenths of 1 percent.
The housing and extracurricular policies at these institutions also perpetuated open segregation. For instance, incoming students were permitted to opt out of rooming with black students. And some fraternities and sororities excluded black students from membership.
In 1966, the Defense Department conducted an investigation into the University’s compliance with Title VI of the Civil Rights Act, and made 25 recommendations for increasing opportunities for minority students. In 1970, a student group launched a number of protests, including a strike, demanding that the University increase its minority enrollment. The University’s Board of Regents responded, adopting a goal of 10 percent black admissions by the fall of 1973.
During the 1970’s, the University continued to improve its admissions policies, encouraged by this Court’s 1978 decision in Bakke. In that case, the Court told our Nation’s colleges and universities that they could consider race in admissions as part of a broader goal to create a diverse student body, in which students of different backgrounds would learn together, and thereby learn to live together. A little more than a decade ago, in Grutter, the Court reaffirmed this understanding. In upholding the admissions policy of the Law School, the Court laid to rest any doubt whether student body diversity is a compelling interest that may justify the use of race.
Race-sensitive admissions policies are now a thing of the past in Michigan after § 26, even though—as experts agree and as research shows—those policies were making a difference in achieving educational diversity. In Grutter, Michigan’s Law School spoke candidly about the strides the institution had taken successfully because of race-sensitive admissions. One expert retained by the Law School opined that a race-blind admissions system would have a “very dramatic, negative effect on underrepresented minority admissions.” He testified that the school had admitted 35 percent of underrepresented minority students who had applied in 2000, as opposed to only 10 percent who would have been admitted had race not been considered. Underrepresented minority students would thus have constituted 4 percent, as opposed to the actual 14.5 percent, of the class that entered in 2000.
Michigan’s public colleges and universities tell us the same today. The Board of Regents of the University of Michigan and the Board of Trustees of Michigan State University inform us that those institutions cannot achieve the benefits of a diverse student body without race-sensitive admissions plans. During proceedings before the lower courts, several university officials testified that § 26 would depress minority enrollment at Michigan’s public universities. The Director of Undergraduate Admissions at the University of Michigan “expressed doubts over the ability to maintain minority enrollment through the use of a proxy, like socioeconomic status.” Similarly, the Law School’s Dean of Admissions testified that she expected “a decline in minority admissions because, in her view, it is impossible ‘to get a critical mass of underrepresented minorities . . . without considering race.’ ” And the Dean of Wayne State University Law School stated that “although some creative approaches might mitigate the effects of [§ 26], he ‘did not think that any one of these proposals or any combination of these proposals was reasonably likely to result in the admission of a class that had the same or similar or higher numbers of African Americans, Latinos and Native Americans as the prior policy.’” * * * * {statistical discussion omitted}
B
These statistics may not influence the views of some of my colleagues, as they question the wisdom of adopting race-sensitive admissions policies and would prefer if our Nation’s colleges and universities were to discard those policies altogether. That view is at odds with our recognition in Grutter, and more recently in Fisher v. University of Texas at Austin (2013), that race-sensitive admissions policies are necessary to achieve a diverse student body when race-neutral alternatives have failed. More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.
This Court has recognized that diversity in education is paramount. With good reason. Diversity ensures that the next generation moves beyond the stereotypes, the assumptions, and the superficial perceptions that students coming from less-heterogeneous communities may harbor, consciously or not, about people who do not look like them. Recognizing the need for diversity acknowledges that, “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.” Grutter. And it acknowledges that “to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of skin color. Without race-sensitive admissions policies, this might well be impossible. The statistics I have described make that fact glaringly obvious. We should not turn a blind eye to something we cannot help but see.
To be clear, I do not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court today regarding the constitutionality of § 26. But I cannot ignore the unfortunate outcome of today’s decision: Short of amending the State Constitution, a Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince Michigan’s public colleges and universities to consider race in their admissions plans when other attempts to achieve racial diversity have proved unworkable, and those institutions are unnecessarily hobbled in their pursuit of a diverse student body.
The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.
In doing so, it permits the decision of a majority of the voters in Michigan to strip Michigan’s elected university boards of their authority to make decisions with respect to constitutionally permissible race-sensitive admissions policies, while preserving the boards’ plenary authority to make all other educational decisions. “In a most direct sense, this implicates the judiciary’s special role in safeguarding the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Seattle. The Court abdicates that role, permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan. The result is that Michigan’s public colleges and universities are less equipped to do their part in ensuring that students of all races are “better prepare[d] . . . for an increasingly diverse workforce and society . . .” Grutter.
Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.
I respectfully dissent.
Check Your Understanding
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Cooper v. Harris
581 U.S. ___ (2017)
Justice Kagan delivered the opinion of the Court.
The Constitution entrusts States with the job of designing congressional districts. But it also imposes an important constraint: A State may not use race as the predominant factor in drawing district lines unless it has a compelling reason. In this case, a three-judge District Court ruled that North Carolina officials violated that bar when they created two districts whose voting-age populations were majority black. Applying a deferential standard of review to the factual findings underlying that decision, we affirm.
A
The Equal Protection Clause of the Fourteenth Amendment limits racial gerrymanders in legislative districting plans. It prevents a State, in the absence of “sufficient justification,” from “separating its citizens into different voting districts on the basis of race.” Bethune-Hill v. Virginia State Bd. of Elections (2017). When a voter sues state officials for drawing such race-based lines, our decisions call for a two-step analysis.
First, the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller v. Johnson (1995). That entails demonstrating that the legislature “subordinated” other factors—compactness, respect for political subdivisions, partisan advantage, what have you—to “racial considerations.” The plaintiff may make the required showing through “direct evidence” of legislative intent, “circumstantial evidence of a district’s shape and demographics,” or a mix of both.
Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny. See Bethune-Hill. The burden thus shifts to the State to prove that its race-based sorting of voters serves a “compelling interest” and is “narrowly tailored” to that end. This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965 (VRA or Act).
Two provisions of the VRA—§ 2 and § 5—are involved in this case. Section 2 prohibits any “standard, practice, or procedure” that “results in a denial or abridgement of the right . . . to vote on account of race.” We have construed that ban to extend to “vote dilution”—brought about, most relevantly here, by the “dispersal of [a group’s members] into districts in which they constitute an ineffective minority of voters.” Thornburg v. Gingles (1986). Section 5, at the time of the districting in dispute, worked through a different mechanism. Before this Court invalidated its coverage formula, see Shelby County v. Holder (2013), that section required certain jurisdictions (including various North Carolina counties) to pre-clear voting changes with the Department of Justice, so as to forestall “retrogression” in the ability of racial minorities to elect their preferred candidates.
When a State invokes the VRA to justify race-based districting, it must show (to meet the “narrow tailoring” requirement) that it had “a strong basis in evidence” for concluding that the statute required its action. Alabama Legislative Black Caucus v. Alabama (2015). Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines. That “strong basis” (or “good reasons”) standard gives States “breathing room” to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed. Bethune-Hill. * * * *
B
This case concerns North Carolina’s most recent redrawing of two congressional districts, both of which have long included substantial populations of black voters. In its current incarnation, District 1 is anchored in the northeastern part of the State, with appendages stretching both south and west (the latter into Durham). District 12 begins in the south-central part of the State (where it takes in a large part of Charlotte) and then travels northeast, zig-zagging much of the way to the State’s northern border. (Maps showing the districts are included in an appendix to this opinion.) Both have quite the history before this Court.
We first encountered the two districts, in their 1992 versions, in Shaw v. Reno (1993). There, we held that voters stated an equal protection claim by alleging that Districts 1 and 12 were unwarranted racial gerrymanders. After a remand to the District Court, the case arrived back at our door. See Shaw v. Hunt (1996) (Shaw II). That time, we dismissed the challenge to District 1 for lack of standing, but struck down District 12. The design of that “serpentine” district, we held, was nothing if not race-centric, and could not be justified as a reasonable attempt to comply with the VRA.
The next year, the State responded with a new districting plan, including a new District 12—and residents of that district brought another lawsuit alleging an impermissible racial gerrymander. A District Court sustained the claim twice, but both times this Court reversed. See Hunt v. Cromartie (1999) (Cromartie I); Easley v. Cromartie (2001) (Cromartie II). Racial considerations, we held, did not predominate in designing the revised District 12. Rather, that district was the result of a political gerrymander—an effort to engineer, mostly “without regard to race,” a safe Democratic seat.
The State redrew its congressional districts again in 2001, to account for population changes revealed in the prior year’s census. Under the 2001 map, which went unchallenged in court, neither District 1 nor District 12 had a black voting-age population (called a “BVAP”) that was a majority of the whole: The former had a BVAP of around 48%, the latter a BVAP of around 43%. Nonetheless, in five successive general elections conducted in those reconfigured districts, all the candidates preferred by most African-American voters won their contests—and by some handy margins. In District 1, black voters’ candidates of choice garnered as much as 70% of the total vote, and never less than 59%. And in District 12, those candidates won with 72% of the vote at the high end and 64% at the low.
Another census, in 2010, necessitated yet another congressional map—(finally) the one at issue in this case. State Senator Robert Rucho and State Representative David Lewis, both Republicans, chaired the two committees jointly responsible for preparing the revamped plan. They hired Dr. Thomas Hofeller, a veteran political mapmaker, to assist them in redrawing district lines. Several hearings, drafts, and revisions later, both chambers of the State’s General Assembly adopted the scheme the three men proposed.
The new map (among other things) significantly altered both District 1 and District 12. The 2010 census had revealed District 1 to be substantially underpopulated: To comply with the Constitution’s one-person-one-vote principle, the State needed to place almost 100,000 new people within the district’s boundaries. Evenwel v. Abbott (2016) (explaining that “[s]tates must draw congressional districts with populations as close to perfect equality as possible”). Rucho, Lewis, and Hofeller chose to take most of those people from heavily black areas of Durham, requiring a finger-like extension of the district’s western line. With that addition, District 1’s BVAP rose from 48.6% to 52.7%. District 12, for its part, had no need for significant total-population changes: It was overpopulated by fewer than 3,000 people out of over 730,000. Still, Rucho, Lewis, and Hofeller decided to reconfigure the district, further narrowing its already snakelike body while adding areas at either end—most relevantly here, in Guilford County. Those changes appreciably shifted the racial composition of District 12: As the district gained some 35,000 African-Americans of voting age and lost some 50,000 whites of that age, its BVAP increased from 43.8% to 50.7%.
Registered voters in the two districts (David Harris and Christine Bowser, here called “the plaintiffs”) brought this suit against North Carolina officials (collectively, “the State” or “North Carolina”), complaining of impermissible racial gerrymanders. After a bench trial, a three-judge District Court held both districts unconstitutional. All the judges agreed that racial considerations predominated in the design of District 1. And in then applying strict scrutiny, all rejected the State’s argument that it had a “strong basis” for thinking that the VRA compelled such a race-based drawing of District 1’s lines. As for District 12, a majority of the panel held that “race predominated” over all other factors, including partisanship. And the court explained that the State had failed to put forward any reason, compelling or otherwise, for its attention to race in designing that district. Judge Osteen dissented from the conclusion that race, rather than politics, drove District 12’s lines—yet still characterized the majority’s view as “[e]minently reasonable.”
The State filed a notice of appeal, and we noted probable jurisdiction.
II
We address at the outset North Carolina’s contention that a victory it won in a very similar state-court lawsuit should dictate (or at least influence) our disposition of this case. * * * * {The Court rejected the state’s contentions.}
III
With that out of the way, we turn to the merits of this case, beginning (appropriately enough) with District 1. As noted above, the court below found that race furnished the predominant rationale for that district’s redesign. And it held that the State’s interest in complying with the VRA could not justify that consideration of race. We uphold both conclusions.
A
Uncontested evidence in the record shows that the State’s mapmakers, in considering District 1, purposefully established a racial target: African-Americans should make up no less than a majority of the voting-age population. Senator Rucho and Representative Lewis were not coy in expressing that goal. They repeatedly told their colleagues that District 1 had to be majority-minority, so as to comply with the VRA. During a Senate debate, for example, Rucho explained that District 1 “must include a sufficient number of African-Americans” to make it “a majority black district.” Similarly, Lewis informed the House and Senate redistricting committees that the district must have “a majority black voting age population.” And that objective was communicated in no uncertain terms to the legislators’ consultant. Dr. Hofeller testified multiple times at trial that Rucho and Lewis instructed him “to draw [District 1] with a [BVAP] in excess of 50 percent.”
Hofeller followed those directions to the letter, such that the 50%-plus racial target “had a direct and significant impact” on District 1’s configuration. In particular, Hofeller moved the district’s borders to encompass the heavily black parts of Durham (and only those parts), thus taking in tens of thousands of additional African-American voters. That change and similar ones, made (in his words) to ensure that the district’s racial composition would “add[ ] up correctly,” deviated from the districting practices he other-wise would have followed. Hofeller candidly admitted that point: For example, he testified, he sometimes could not respect county or precinct lines as he wished because “the more important thing” was to create a majority-minority district. The result is a district with stark racial borders: Within the same counties, the portions that fall inside District 1 have black populations two to three times larger than the portions placed in neighboring districts.
Faced with this body of evidence—showing an announced racial target that subordinated other districting criteria and produced boundaries amplifying divisions between blacks and whites—the District Court did not clearly err in finding that race predominated in drawing District 1. Indeed, as all three judges recognized, the court could hardly have concluded anything but.
B
The more substantial question is whether District 1 can survive the strict scrutiny applied to racial gerrymanders. As noted earlier, we have long assumed that complying with the VRA is a compelling interest. And we have held that race-based districting is narrowly tailored to that objective if a State had “good reasons” for thinking that the Act demanded such steps. North Carolina argues that District 1 passes muster under that standard: The General Assembly (so says the State) had “good reasons to believe it needed to draw [District 1] as a majority-minority district to avoid Section 2 liability” for vote dilution.
This Court identified, in Thornburg v. Gingles, three threshold conditions for proving vote dilution under § 2 of the VRA. First, a “minority group” must be “sufficiently large and geographically compact to constitute a majority” in some reasonably configured legislative district. Second, the minority group must be “politically cohesive.” And third, a district’s white majority must “vote [ ] sufficiently as a bloc” to usually “defeat the minority’s preferred candidate.” Those three showings, we have explained, are needed to establish that “the minority [group] has the potential to elect a representative of its own choice” in a possible district, but that racially polarized voting prevents it from doing so in the district as actually drawn because it is “submerg[ed] in a larger white voting population.” If a State has good reason to think that all the “Gingles preconditions” are met, then so too it has good reason to believe that § 2 requires drawing a majority-minority district. But if not, then not.
Here, electoral history provided no evidence that a § 2 plaintiff could demonstrate the third Gingles prerequisite—effective white bloc-voting. For most of the twenty years prior to the new plan’s adoption, African-Americans had made up less than a majority of District 1’s voters; the district’s BVAP usually hovered between 46% and 48%. Yet throughout those two decades, as the District Court noted, District 1 was “an extraordinarily safe district for African-American preferred candidates.” In the closest election during that period, African-Americans’ candidate of choice received 59% of the total vote; in other years, the share of the vote garnered by those candidates rose to as much as 70%. Those victories (indeed, landslides) occurred because the district’s white population did not “vote[ ] sufficiently as a bloc” to thwart black voters’ preference; rather, a meaningful number of white voters joined a politically cohesive black community to elect that group’s favored candidate. In the lingo of voting law, District 1 functioned, election year in and election year out, as a “cross-over” district, in which members of the majority help a “large enough” minority to elect its candidate of choice. Bartlett v. Strickland (2009) (plurality opinion). When voters act in that way, “[i]t is difficult to see how the majority-bloc-voting requirement could be met”—and hence how § 2 liability could be established. So experience gave the State no reason to think that the VRA required it to ramp up District 1’s BVAP.
The State counters that, in this context, past performance is no guarantee of future results. Recall here that the State had to redraw its whole congressional map following the 2010 census. And in particular, the State had to add nearly 100,000 new people to District 1 to meet the one-person-one-vote standard. That meant about 13% of the voters in the new district would never have voted there before. So, North Carolina contends, the question facing the state mapmakers was not whether the then-existing District 1 violated § 2. Rather, the question was whether the future District 1 would do so if drawn without regard to race. And that issue, the State claims, could not be resolved by “focusing myopically on past elections.”
But that reasoning, taken alone, cannot justify North Carolina’s race-based redesign of District 1. True enough, a legislature undertaking a redistricting must assess whether the new districts it contemplates (not the old ones it sheds) conform to the VRA’s requirements. And true too, an inescapable influx of additional voters into a district may suggest the possibility that its former track record of compliance can continue only if the legislature intentionally adjusts its racial composition. Still, North Carolina too far downplays the significance of a longtime pattern of white crossover voting in the area that would form the core of the redrawn District 1. See Gingles (noting that longtime voting patterns are highly probative of racial polarization). And even more important, North Carolina can point to no meaningful legislative inquiry into what it now rightly identifies as the key issue: whether a new, enlarged District 1, created without a focus on race but however else the State would choose, could lead to § 2 liability. The prospect of a significant population increase in a district only raises—it does not answer—the question whether § 2 requires deliberate measures to augment the district’s BVAP. (Indeed, such population growth could cut in either direction, depending on who comes into the district.) To have a strong basis in evidence to conclude that § 2 demands such race-based steps, the State must carefully evaluate whether a plaintiff could establish the Gingles preconditions—including effective white bloc-voting—in a new district created without those measures. We see nothing in the legislative record that fits that description.
And that absence is no accident: Rucho and Lewis proceeded under a wholly different theory—arising not from Gingles but from Bartlett v. Strickland—of what § 2 demanded in drawing District 1. Strickland involved a geographic area in which African-Americans could not form a majority of a reasonably compact district. The African-American community, however, was sizable enough to enable the formation of a crossover district, in which a substantial bloc of black voters, if receiving help from some white ones, could elect the candidates of their choice. A plurality of this Court, invoking the first Gingles precondition, held that § 2 did not require creating that district: When a minority group is not sufficiently large to make up a majority in a reasonably shaped district, § 2 simply does not apply. Over and over in the legislative record, Rucho and Lewis cited Strickland as mandating a 50%-plus BVAP in District 1. They apparently reasoned that if, as Strickland held, § 2 does not require crossover districts (for groups insufficiently large under Gingles), then § 2 also cannot be satisfied by crossover districts (for groups in fact meeting Gingles’ size condition). In effect, they concluded, whenever a legislature can draw a majority-minority district, it must do so—even if a crossover district would also allow the minority group to elect its favored candidates.
That idea, though, is at war with our § 2 jurisprudence—Strickland included. Under the State’s view, the third Gingles condition is no condition at all, because even in the absence of effective white bloc-voting, a § 2 claim could succeed in a district (like the old District 1) with an under-50% BVAP. But this Court has made clear that unless each of the three Gingles prerequisites is established, “there neither has been a wrong nor can be a remedy.” And Strickland, far from supporting North Carolina’s view, underscored the necessity of demonstrating effective white bloc-voting to prevail in a § 2 vote-dilution suit. The plurality explained that “[i]n areas with substantial crossover voting,” § 2 plaintiffs would not “be able to establish the third Gingles precondition” and so “majority-minority districts would not be required.” Thus, North Carolina’s belief that it was compelled to redraw District 1 (a successful crossover district) as a majority-minority district rested not on a “strong basis in evidence,” but instead on a pure error of law.
In sum: Although States enjoy leeway to take race-based actions reasonably judged necessary under a proper interpretation of the VRA, that latitude cannot rescue District 1. We by no means “insist that a state legislature, when redistricting, determine precisely what percent minority population [§ 2 of the VRA] demands.” But neither will we approve a racial gerrymander whose necessity is supported by no evidence and whose raison d’être is a legal mistake. Accordingly, we uphold the District Court’s conclusion that North Carolina’s use of race as the predominant factor in designing District 1 does not withstand strict scrutiny.
IV
We now look west to District 12, making its fifth(!) appearance before this Court. This time, the district’s legality turns, and turns solely, on which of two possible reasons predominantly explains its most recent reconfiguration. The plaintiffs contended at trial that the General Assembly chose voters for District 12, as for District 1, because of their race; more particularly, they urged that the Assembly intentionally increased District 12’s BVAP in the name of ensuring preclearance under the VRA’s § 5. But North Carolina declined to mount any defense (similar to the one we have just considered for District 1) that § 5’s requirements in fact justified race-based changes to District 12—perhaps because § 5 could not reasonably be understood to have done so. Instead, the State altogether denied that racial considerations accounted for (or, indeed, played the slightest role in) District 12’s redesign. According to the State’s version of events, Senator Rucho, Representative Lewis, and Dr. Hofeller moved voters in and out of the district as part of a “strictly” political gerrymander, without regard to race. The mapmakers drew their lines, in other words, to “pack” District 12 with Democrats, not African-Americans. After hearing evidence supporting both parties’ accounts, the District Court accepted the plaintiffs’.
Getting to the bottom of a dispute like this one poses special challenges for a trial court. In the more usual case alleging a racial gerrymander—where no one has raised a partisanship defense—the court can make real headway by exploring the challenged district’s conformity to traditional districting principles, such as compactness and respect for county lines. In Shaw II, for example, this Court emphasized the “highly irregular” shape of then-District 12 in concluding that race predominated in its design. But such evidence loses much of its value when the State asserts partisanship as a defense, because a bizarre shape—as of the new District 12—can arise from a “political motivation” as well as a racial one. Cromartie I. And crucially, political and racial reasons are capable of yielding similar oddities in a district’s boundaries. That is because, of course, “racial identification is highly correlated with political affiliation.” Cromartie II. As a result of those redistricting realities, a trial court has a formidable task: It must make “a sensitive inquiry” into all “circumstantial and direct evidence of intent” to assess whether the plaintiffs have managed to disentangle race from politics and prove that the former drove a district’s lines. Cromartie I.
Our job is different—and generally easier. As described earlier, we review a district court’s finding as to racial predominance only for clear error, except when the court made a legal mistake. * * * *
In light of those principles, we uphold the District Court’s finding of racial predominance respecting District 12. The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment: Contrary to North Carolina’s view, the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent.
A
Begin with some facts and figures, showing how the redistricting of District 12 affected its racial composition. As explained above, District 12 (unlike District 1) was approximately the right size as it was: North Carolina did not—indeed, could not—much change its total population. But by further slimming the district and adding a couple of knobs to its snakelike body (including in Guilford County), the General Assembly incorporated tens of thousands of new voters and pushed out tens of thousands of old ones. And those changes followed racial lines: To be specific, the new District 12 had 35,000 more African-Americans of voting age and 50,000 fewer whites of that age. (The difference was made up of voters from other racial categories.) Those voter exchanges produced a sizable jump in the district’s BVAP, from 43.8% to 50.7%. The Assembly thus turned District 12 (as it did District 1) into a majority-minority district.
As the plaintiffs pointed out at trial, Rucho and Lewis had publicly stated that racial considerations lay behind District 12’s augmented BVAP. In a release issued along with their draft districting plan, the two legislators ascribed that change to the need to achieve preclearance of the plan under § 5 of the VRA.
* * * * Hofeller confirmed that intent in both deposition testimony and an expert report. * * * *
The State’s preclearance submission to the Justice Department indicated a similar determination to concentrate black voters in District 12. “One of the concerns of the Redistricting Chairs,” North Carolina there noted, had to do with the Justice Department’s years-old objection to “a failure by the State to create a second majority minority district” (that is, in addition to District 1). The submission then went on to explain that after considering alternatives, the redistricters had designed a version of District 12 that would raise its BVAP to 50.7%. Thus, concluded the State, the new District 12 “increases [ ] the African-American community’s ability to elect their candidate of choice.” In the District Court’s view, that passage once again indicated that making District 12 majority-minority was no “mere coincidence,” but a deliberate attempt to avoid perceived obstacles to preclearance.
And still there was more: Perhaps the most dramatic testimony in the trial came when Congressman Mel Watt (who had represented District 12 for some 20 years) recounted a conversation he had with Rucho in 2011 about the district’s future make-up. According to Watt, Rucho said that “his leadership had told him that he had to ramp the minority percentage in [District 12] up to over 50 percent to comply with the Voting Rights Law.” And further, that it would then be Rucho’s “job to go and convince the African-American community” that such a racial target “made sense” under the Act. The District Court credited Watt’s testimony about the conversation, citing his courtroom demeanor and “consistent recollection” under “probing cross-examination.” In the court’s view, Watt’s account was of a piece with all the other evidence—including the redistricters’ on-the-nose attainment of a 50% BVAP—indicating that the General Assembly, in the name of VRA compliance, deliberately redrew District 12 as a majority-minority district.
The State’s contrary story—that politics alone drove decisionmaking—came into the trial mostly through Hofeller’s testimony. Hofeller explained that Rucho and Lewis instructed him, first and foremost, to make the map as a whole “more favorable to Republican candidates.” One agreed-on stratagem in that effort was to pack the historically Democratic District 12 with even more Democratic voters, thus leaving surrounding districts more reliably Republican. To that end, Hofeller recounted, he drew District 12’s new boundaries based on political data—specifically, the voting behavior of precincts in the 2008 Presidential election between Barack Obama and John McCain. Indeed, he claimed, he displayed only this data, and no racial data, on his computer screen while mapping the district. In part of his testimony, Hofeller further stated that the Obama-McCain election data explained (among other things) his incorporation of the black, but not the white, parts of Guilford County then located in District 13. Only after he drew a politics-based line between those adjacent areas, Hofeller testified, did he “check [ ]” the racial data and “f[ind] out” that the resulting configuration of District 12 “did not have a [§ 5] issue.”
The District Court, however, disbelieved Hofeller’s asserted indifference to the new district’s racial composition. The court recalled Hofeller’s contrary deposition testimony—his statement (repeated in only slightly different words in his expert report) that Rucho and Lewis “decided” to shift African-American voters into District 12 “in order to” ensure preclearance under § 5. And the court explained that even at trial, Hofeller had given testimony that undermined his “blame it on politics” claim. Right after asserting that Rucho and Lewis had told him “[not] to use race” in designing District 12, Hofeller added a qualification: “except perhaps with regard to Guilford County.” As the District Court understood, that is the kind of “exception” that goes pretty far toward swallowing the rule. District 12 saw a net increase of more than 25,000 black voters in Guilford County, relative to a net gain of fewer than 35,000 across the district: So the newly added parts of that county played a major role in pushing the district’s BVAP over 50%. The District Court came away from Hofeller’s self-contradictory testimony unpersuaded that this decisive influx of black voters was an accident. Whether the racial make-up of the county was displayed on his computer screen or just fixed in his head, the court thought, Hofeller’s denial of race-based districting “r[ang] hollow.”
Finally, an expert report by Dr. Stephen Ansolabehere lent circumstantial support to the plaintiffs’ race-not-politics case. Ansolabehere looked at the six counties overlapping with District 12—essentially the region from which the mapmakers could have drawn the district’s population. The question he asked was: Who from those counties actually ended up in District 12? The answer he found was: Only 16% of the region’s white registered voters, but 64% of the black ones. Ansolabehere next controlled for party registration, but discovered that doing so made essentially no difference: For example, only 18% of the region’s white Democrats wound up in District 12, whereas 65% of the black Democrats did. The upshot was that, regardless of party, a black voter was three to four times more likely than a white voter to cast his ballot within District 12’s borders. Those stark disparities led Ansolabehere to conclude that “race, and not party,” was “the dominant factor” in District 12’s design. His report, as the District Court held, thus tended to confirm the plaintiffs’ direct evidence of racial predominance.
The District Court’s assessment that all this evidence proved racial predominance clears the bar of clear error review. * * * * No doubt other interpretations of that evidence were permissible. Maybe we would have evaluated the testimony differently had we presided over the trial; or then again, maybe we would not have. Either way—and it is only this which matters—we are far from having a “definite and firm conviction” that the District Court made a mistake in concluding from the record before it that racial considerations predominated in District 12’s design.
B
The State mounts a final, legal rather than factual, attack on the District Court’s finding of racial predominance. When race and politics are competing explanations of a district’s lines, argues North Carolina, the party challenging the district must introduce a particular kind of circumstantial evidence: “an alternative [map] that achieves the legislature’s political objectives while improving racial balance.” That is true, the State says, irrespective of what other evidence is in the case—so even if the plaintiff offers powerful direct proof that the legislature adopted the map it did for racial reasons. Because the plaintiffs here (as all agree) did not present such a counter-map, North Carolina concludes that they cannot prevail. The dissent echoes that argument.
We have no doubt that an alternative districting plan, of the kind North Carolina describes, can serve as key evidence in a race-versus-politics dispute. One, often highly persuasive way to disprove a State’s contention that politics drove a district’s lines is to show that the legislature had the capacity to accomplish all its partisan goals without moving so many members of a minority group into the district. If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this. Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible, rather than a prohibited, ground. See, e.g., Miller-El v. Dretke (2005) (“If that were the [real] explanation for striking [juror] Warren[,] the prosecutors should have struck [juror] Jenkins” too).
But they are hardly the only means. Suppose that the plaintiff in a dispute like this one introduced scores of leaked emails from state officials instructing their mapmaker to pack as many black voters as possible into a district, or telling him to make sure its BVAP hit 75%. Based on such evidence, a court could find that racial rather than political factors predominated in a district’s design, with or without an alternative map. And so too in cases lacking that kind of smoking gun, as long as the evidence offered satisfies the plaintiff’s burden of proof. In Bush v. Vera (1996), for example, this Court upheld a finding of racial predominance based on “substantial direct evidence of the legislature’s racial motivations”—including credible testimony from political figures and statements made in a § 5 preclearance submission—plus circumstantial evidence that redistricters had access to racial, but not political, data at the “block-by-block level” needed to explain their “intricate” designs (plurality opinion). Not a single Member of the Court thought that the absence of a counter-map made any difference. Similarly, it does not matter in this case, where the plaintiffs’ introduction of mostly direct and some circumstantial evidence—documents issued in the redistricting process, testimony of government officials, expert analysis of demographic patterns—gave the District Court a sufficient basis, sans any map, to resolve the race-or-politics question.
A plaintiff’s task, in other words, is simply to persuade the trial court—without any special evidentiary prerequisite—that race (not politics) was the “predominant consideration in deciding to place a significant number of voters within or without a particular district.” That burden of proof, we have often held, is “demanding.” And because that is so, a plaintiff will sometimes need an alternative map, as a practical matter, to make his case. But in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail. See Arlington Heights v. Metropolitan Housing Development Corp (1977) (offering a varied and non-exhaustive list of “subjects of proper inquiry in determining whether racially discriminatory intent existed”). Nor would it make sense to do so here. The Equal Protection Clause prohibits the unjustified drawing of district lines based on race. An alternative map is merely an evidentiary tool to show that such a substantive violation has occurred; neither its presence nor its absence can itself resolve a racial gerrymandering claim. * * * *
V
Applying a clear error standard, we uphold the District Court’s conclusions that racial considerations predominated in designing both District 1 and District 12. For District 12, that is all we must do, because North Carolina has made no attempt to justify race-based districting there. For District 1, we further uphold the District Court’s decision that § 2 of the VRA gave North Carolina no good reason to reshuffle voters because of their race. We accordingly affirm the judgment of the District Court.
It is so ordered.
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Notes
1. The disagreement in Cooper v. Harris centered on District 12 and the legislative intent for the redistricting of District 12, and prompted a trading of literary allusions. In Alito’s dissent, he writes:
Amazingly, a reader of the majority opinion (and the opinion of the District Court) would remain almost entirely ignorant of the legislature’s political strategy and the relationship between that strategy and the racial composition of District 12. The majority’s analysis is like Hamlet without the prince.
The Court’s opinion by Justice Kagan, counters this in its footnote 6:
Justice Alito charges us with “ignor[ing]” the State’s political-gerrymander defense, making our analysis “like Hamlet without the prince.” But we simply take the State’s account for what it is: one side of a thoroughly two-sided case (and, as we will discuss, the side the District Court rejected, primarily on factual grounds). By contrast, the dissent consistently treats the State’s version of events (what it calls “the Legislature’s political strategy and the relationship between that strategy and [District 12’s] racial composition,”) as if it were a simple “fact of the matter”—the premise of, rather than a contested claim in, this case. The dissent’s narrative thus tracks, top-to-bottom and point-for-point, the testimony of Dr. Hofeller, the State’s star witness at trial—so much so that the dissent could just have block-quoted that portion of the transcript and saved itself a fair bit of trouble. Compare post, at 12–20, with App. 2671–2755. Imagine (to update the dissent’s theatrical reference) Inherit the Wind retold solely from the perspective of William Jennings Bryan, with nary a thought given to the competing viewpoint of Clarence Darrow.
2. As to the possibility of an Equal Protection Clause challenge to political or partisan gerrymandering, after sidestepping the question in several cases (including Gill v. Whitford (2018)), the United States Supreme Court’s decision in Rucho v. Common Cause (2019) held that the judicial branch has no role in deciding issues of partisan gerrymandering. Writing for the 5 Justice majority, Chief Justice Roberts concluded that challenges to partisan gerrymandering involve a political question unsuitable for the courts because such issues lack “judicially discoverable and manageable standards for resolving them.” Chief Justice Roberts recommended that state courts resolve the issue.
In dissent, Justice Kagan—joined by Justices Ginsburg, Breyer, and Sotomayor—began by stating “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks it is beyond its judicial capabilities.” Kagan’s impassioned dissent, as long as the majority opinion, and parts of which she read from the bench (a rare practice for her), explained that democracy is at stake and if “left unchecked, gerrymanders like the ones here may irreparably damage our system of government.” As for standards, the four dissenters argued that courts have developed a framework for analyzing claims of partisan gerrymandering, including the workable standard the three-judge court in Rucho used to analyze North Carolina’s redistricting and hold its partisan gerrymandering was so severe it violated the Equal Protection Clause. And regarding state courts, Kagan’s opinion asked, “what do those courts know that this Court cannot? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn’t we?”
Voting and Equal Protection will be considered again in a later chapter.
Further Your Understanding
CALI Lesson: Affirmative Action and Equal Protection
CALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your understanding of equal protection and affirmative action. The lesson treats the beginnings of affirmative action, the level of scrutiny that applies to affirmative action, the special context of affirmative action and education, and affirmative action and the political process, including redistricting. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.05%3A_CHAPTER_FOUR-_Race_and_Equal_Protection__Part_2.txt |
I. Rational Basis Standard as Default
Railway Express Agency, Inc. v. New York
336 U.S. 106 (1949)
Mr. Justice Douglas delivered the opinion of the Court.
Section 124 of the Traffic Regulations of the City of New York promulgated by the Police Commissioner provides:
‘No person shall operate, or cause to be operated, in or upon any street an advertising vehicle; provided that nothing herein contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not used merely or mainly for advertising.’
Appellant is engaged in a nation-wide express business. It operates about 1,900 trucks in New York City and sells the space on the exterior sides of these trucks for advertising. That advertising is for the most part unconnected with its own business. It was convicted in the magistrates court and fined. The judgment of conviction was sustained in the Court of Special Sessions. The Court of Appeals affirmed without opinion by a divided vote. The case is here on appeal.
* * * * {On the due process challenge, the Court stated:} We do not sit to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate; nor is it our function to pass judgment on its wisdom. We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false.
The question of equal protection of the laws is pressed more strenuously on us. It is pointed out that the regulation draws the line between advertisements of products sold by the owner of the truck and general advertisements. It is argued that unequal treatment on the basis of such a distinction is not justified by the aim and purpose of the regulation. It is said, for example, that one of appellant’s trucks carrying the advertisement of a commercial house would not cause any greater distraction of pedestrians and vehicle drivers than if the commercial house carried the same advertisement on its own truck. Yet the regulation allows the latter to do what the former is forbidden from doing. It is therefore contended that the classification which the regulation makes has no relation to the traffic problem since a violation turns not on what kind of advertisements are carried on trucks but on whose trucks they are carried.
That, however, is a superficial way of analyzing the problem, even if we assume that it is premised on the correct construction of the regulation. The local authorities may well have concluded that those who advertised their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use. It would take a degree of omniscience which we lack to say that such is not the case. If that judgment is correct, the advertising displays that are exempt have less incidence on traffic than those of appellants.
We cannot say that that judgment is not an allowable one. Yet if it is, the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered. And the fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. * * * *
Affirmed.
Mr. Justice Rutledge acquiesces in the Court’s opinion and judgment, dubitante on the question of equal protection of the laws.
Mr. Justice Jackson, concurring.
There are two clauses of the Fourteenth Amendment which this Court may invoke to invalidate ordinances by which municipal governments seek to solve their local problems. One says that no state shall ‘deprive any person of life, liberty, or property, without due process of law’. The other declares that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’
My philosophy as to the relative readiness with which we should resort to these two clauses is almost diametrically opposed to the philosophy which prevails on this Court. While claims of denial of equal protection are frequently asserted, they are rarely sustained. But the Court frequently uses the due process clause to strike down measures taken by municipalities to deal with activities in their streets and public places which the local authorities consider to create hazards, annoyances or discomforts to their inhabitants. And I have frequently dissented when I thought local power was improperly denied.
The burden should rest heavily upon one who would persuade us to use the due process clause to strike down a substantive law or ordinance. Even its provident use against municipal regulations frequently disables all government—state, municipal and federal from dealing with the conduct in question because the requirement of due process is also applicable to State and Federal Governments. Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable.
Invocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
This case affords an illustration. Even casual observations from the sidewalks of New York will show that an ordinance which would forbid all advertising on vehicles would run into conflict with many interests, including some, if not all, of the great metropolitan newspapers, which use that advertising extensively. Their blandishment of the latest sensations is not less a cause of diverted attention and traffic hazard than the commonplace cigarette advertisement which this truck-owner is forbidden to display. But any regulation applicable to all such advertising would require much clearer justification in local conditions to enable its enactment than does some regulation applicable to a few. I do not mention this to criticize the motives of those who enacted this ordinance, but it dramatizes the point that we are much more likely to find arbitrariness in the regulation of the few than of the many. Hence, for my part, I am more receptive to attack on local ordinances for denial of equal protection than for denial of due process, while the Court has more often used the latter clause.
In this case, if the City of New York should assume that display of any advertising on vehicles tends and intends to distract the attention of persons using the highways and to increase the dangers of its traffic, I should think it fully within its constitutional powers to forbid it all. The same would be true if the City should undertake to eliminate or minimize the hazard by any generally applicable restraint, such as limiting the size, color, shape or perhaps to some extent the contents of vehicular advertising. Instead of such general regulation of advertising, however, the City seeks to reduce the hazard only by saying that while some may, others may not exhibit such appeals. The same display, for example, advertising cigarettes, which this appellant is forbidden to carry on its trucks, may be carried on the trucks of a cigarette dealer and might on the trucks of this appellant if it dealt in cigarettes. And almost an identical advertisement, certainly one of equal size, shape, color and appearance, may be carried by this appellant if it proclaims its own offer to transport cigarettes. But it may not be carried so long as the message is not its own but a cigarette dealer’s offer to sell the same cigarettes.
The City urges that this applies equally to all persons of a permissible classification, because all that it does is (1) forbid all inhabitants of New York City from engaging in the business of selling advertising space on trucks which move as part of the city traffic; (2) forbid all truck owners from incidentally employing their vehicles for such purpose, with the exception that all truck owners can advertise their own business on their own trucks. It is argued that, while this does not eliminate vehicular advertising, it does eliminate such advertising for hire and to this extent cuts down the hazard sought to be controlled.
That the difference between carrying on any business for hire and engaging in the same activity on one’s own is a sufficient one to sustain some types of regulations of the one that is not applied to the other, is almost elementary. But it is usual to find such regulations applied to the very incidents wherein the two classes present different problems, such as in charges, liability and quality of service.
The difference, however, is invoked here to sustain a discrimination in a problem in which the two classes present identical dangers. The courts of New York have declared that the sole nature and purpose of the regulation before us is to reduce traffic hazards. There is not even a pretense here that the traffic hazard created by the advertising which is forbidden is in any manner or degree more hazardous than that which is permitted. It is urged with considerable force that this local regulation does not comply with the equal protection clause because it applies unequally upon classes whose differentiation is in no way relevant to the objects of the regulation.
As a matter of principle and in view of my attitude toward the equal protection clause, I do not think differences of treatment under law should be approved on classification because of differences unrelated to the legislative purpose. The equal protection clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out between those bound and those left free. This Court has often announced the principle that the differentiation must have an appropriate relation to the object of the legislation or ordinance. * * * *
The question in my mind comes to this. Where individuals contribute to an evil or danger in the same way and to the same degree, may those who do so for hire be prohibited, while those who do so for their own commercial ends but not for hire be allowed to continue? I think the answer has to be that the hireling may be put in a class by himself and may be dealt with differently than those who act on their own. But this is not merely because such a discrimination will enable the lawmaker to diminish the evil. That might be done by many classifications, which I should think wholly unsustainable. It is rather because there is a real difference between doing in self-interest and doing for hire, so that it is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price.
* * * * Of course, this appellant did not hold itself out to carry or display everybody’s advertising, and its rental of space on the sides of its trucks was only incidental to the main business which brought its trucks into the streets. But it is not difficult to see that, in a day of extravagant advertising more or less subsidized by tax deduction, the rental of truck space could become an obnoxious enterprise. While I do not think highly of this type of regulation, that is not my business, and in view of the control I would concede to cities to protect citizens in quiet and orderly use for their proper purposes of the highways and public places, I think the judgment below must be affirmed.
Dandridge v Williams
397 U.S. 471 (1970)
Mr. Justice Stewart delivered the opinion of the Court.
This case involves the validity of a method used by Maryland, in the administration of an aspect of its public welfare program, to reconcile the demands of its needy citizens with the finite resources available to meet those demands. Like every other State in the Union, Maryland participates in the Federal Aid to Families with Dependent Children (AFDC) program, 42 U.S.C. § 601 et seq. (1964 ed. and Supp. IV), which originated with the Social Security Act of 1935.
Under this jointly financed program, a State computes the so-called “standard of need” of each eligible family unit within its borders. Some States provide that every family shall receive grants sufficient to meet fully the determined standard of need. Other States provide that each family unit shall receive a percentage of the determined need. Still others provide grants to most families in full accord with the ascertained standard of need, but impose an upper limit on the total amount of money any one family unit may receive. Maryland, through administrative adoption of a “maximum grant regulation,” has followed this last course. This suit was brought by several AFDC recipients to enjoin the application of the Maryland maximum grant regulation on the ground that it is in conflict with the Social Security Act of 1935 and with the Equal Protection Clause of the Fourteenth Amendment.
* * * *
The operation of the Maryland welfare system is not complex. By statute, the State participates in the AFDC program. It computes the standard of need for each eligible family based on the number of children in the family and the circumstances under which the family lives. In general, the standard of need increases with each additional person in the household, but the increments become proportionately smaller. The regulation here in issue imposes upon the grant that any single family may receive an upper limit of \$250 per month in certain counties and Baltimore City, and of \$240 per month elsewhere in the State. The appellees all have large families, so that their standards of need, as computed by the State, substantially exceed the maximum grants that they actually receive under the regulation. The appellees urged in the District Court that the maximum grant limitation operates to discriminate against them merely because of the size of their families, in violation of the Equal Protection Clause of the Fourteenth Amendment. They claimed further that the regulation is incompatible with the purpose of the Social Security Act of 1935, as well as in conflict with its explicit provisions.
In its original opinion, the District Court held that the Maryland regulation does conflict with the federal statute, and also concluded that it violates the Fourteenth Amendment’s equal protection guarantee. After reconsideration on motion, the court issued a new opinion resting its determination of the regulation’s invalidity entirely on the constitutional ground. Both the statutory and constitutional issues have been fully briefed and argued here, and the judgment of the District Court must, of course, be affirmed if the Maryland regulation is in conflict with either the federal statute or the Constitution. We consider the statutory question first, because, if the appellees’ position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA (1936) (Brandeis, J., concurring).
I
{The Court found that the Maryland statute did not conflict with the Social Security Act}
II
Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not, of course, impose a regime of invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its maximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and that the regulation is rationally supportable on at least four entirely valid grounds. The regulation can be clearly justified, Maryland argues, in terms of legitimate state interests in encouraging gainful employment, in maintaining an equitable balance in economic status as between welfare families and those supported by a wage-earner, in providing incentives for family planning, and in allocating available public funds in such a way as fully to meet the needs of the largest possible number of families. The District Court, while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation “is invalid on its face for overreaching,”—that it violates the Equal Protection Clause “[b]ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply. . . .” * * * * {T}he concept of “overreaching” has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. For this Court to approve the invalidation of state economic or social regulation as “overreaching” would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co. (1955). That era long ago passed into history.
In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.”
The problems of government are practical ones, and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific. “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have, in the main, involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. It is a standard that has consistently been applied to State legislation restricting the availability of employment opportunities. And it is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.
Under this long-established meaning of the Equal Protection Clause, it is clear that the Maryland maximum grant regulation is constitutionally valid. We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient’s grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner.
It is true that, in some AFDC families, there may be no person who is employable. It is also true that with respect to AFDC families whose determined standard of need is below the regulatory maximum, and who therefore receive grants equal to the determined standard, the employment incentive is absent. But the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. It is enough that the State’s action be rationally based and free from invidious discrimination. The regulation before us meets that test.
We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. * * * *
The judgment is reversed.
Mr. Justice Marshall, whom Mr. Justice Brennan joins, dissenting.
* * * * In the final analysis, Maryland has set up an AFDC program structured to calculate and pay the minimum standard of need to dependent children. Having set up that program, however, the State denies some of those needy children the minimum subsistence standard of living, and it does so on the wholly arbitrary basis that they happen to be members of large families. One need not speculate too far on the actual reason for the regulation, for in the early stages of this litigation the State virtually conceded that it set out to limit the total cost of the program along the path of least resistance. Now, however, we are told that other rationales can be manufactured to support the regulation and to sustain it against a fundamental constitutional challenge.
However, these asserted state interests, which are not insignificant in themselves, are advanced either not at all or by complete accident by the maximum grant regulation. Clearly they could be served by measures far less destructive of the individual interests at stake. Moreover, the device assertedly chosen to further them is at one and the same time both grossly underinclusive-because it does not apply at all to a much larger class in an equal position-and grossly overinclusive-because it applies so strongly against a substantial class as to which it can rationally serve no end. Were this a case of pure business regulation, these defects would place it beyond what has heretofore seemed a borderline case, see, e.g., Railway Express Agency v. New York (1949), and I do not believe that the regulation can be sustained even under the Court’s ‘reasonableness’ test.
In any event, it cannot suffice merely to invoke the spectre of the past and to recite from * * * * and Williamson v. Lee Optical of Oklahoma, Inc. to decide the case. Appellees are not a gas company or an optical dispenser; they are needy dependent children and families who are discriminated against by the State. The basis of that discrimination-the classification of individuals into large and small families-is too arbitrary and too unconnected to the asserted rationale, the impact on those discriminated against-the denial of even a subsistence existence-too great, and the supposed interests served too contrived and attenuated to meet the requirements of the Constitution. In my view Maryland’s maximum grant regulation is invalid under the Equal Protection Clause of the Fourteenth Amendment.
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Notes
1. The lowest tier of Equal Protection judicial review is generally referred to as “rational basis” review. Under this standard, the government interest need only be legitimate and the means chosen reasonably (or rationally) related to that interest. The Courts in Railway Express and Dandridge are exceedingly deferential: even if the government interest is not entirely clear or logical, the Court will defer. In a more recent case, FCC v. Beach Communications, Inc., 508 U.S. 307 (1993), in an opinion by Justice Thomas, the Court went so far as to say that in “areas of social and economic policy, a statutory classification” should be “upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” However, this does not mean that classifications subject to rational basis review are always constitutional.
2. Both Railway Express and Dandridge make reference to the Court’s role as not venturing to decide the wisdom of the legislative action under review. This is an allusion to the so-called Lochner-era of Due Process discussed in a subsequent chapter.
3. Dandridge cites the so-called “Ashwander doctrine,” from Ashwander v. TVA, 297 U.S. 288 (1936), also known as constitutional avoidance. One might think of this as a component of judicial restraint or passive virtues. Under this principle, courts should decide cases on the narrower grounds of statutes before reaching the constitutional issues. Recall previous cases in which there has been a mix of statutory and constitutional claims in previous cases. How might you use the Ashwander doctrine as an attorney?
II. Sex/Gender Classifications
A. Early Cases
Note: Bradwell v. Illinois
In Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1873), the issue before the Court was whether Illinois’ denial of a license to practice law to “Mrs.” Myra Bradwell because she was a married woman violated the Fourteenth Amendment. Rather than Equal Protection, the case rested on the Privileges or Immunities Clause and the Court relied on The Slaughter-House Cases, decided the day before, to hold that practicing law was not a one of the privileges or immunities protected by the Fourteenth Amendment (or by the Privileges and Immunities Clause of Article IV). The case, however, is most famous for the concurring opinion of Justice Bradley (the same Justice who wrote the Court’s opinion in the Civil Rights Cases), which did not contain a single citation.
Mr. Justice Bradley [concurring]:
I concur in the judgment of the court in this case, by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read. The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counsellor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect, but had simply provided that no person should be admitted to practice as attorney or counsellor without having previously obtained a license for that purpose from two justices of the {state} Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons, or class of persons, not intended by the legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the legislature had intended to adopt any different rule.
The claim that, under the fourteenth amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.
It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.
The humane movements of modern society, which have for their object the multiplication of avenues for woman’s advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.
For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.
Note: Minor v. Happersett
In Minor v. Happersett, 88 U.S. (12 Wall.) 162 (1874), the issue was the constitutionality of a Missouri statute that provided, “Every male citizen of the United States shall be entitled to vote.”
The case arose when
Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years, wishing to vote for electors for President and Vice-President of the United States, and for a representative in Congress, and for other officers, at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not a “male citizen of the United States,” but a woman.
The Court declared that
There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare.
Note that the Court stated that this citizenship flows from the Fourteenth Amendment’s first sentence, which reversed Dred Scott,and that this citizenship predates the Fourteenth Amendment, presumably limited to women who were not enslaved.
The Court, however, unanimously held that suffrage (the right to vote) was not within the Fourteenth Amendment’s protections, specifically privileges or immunities. In support, the Court pointed to the Fifteenth Amendment, which provides “The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.” If the Fourteenth Amendment included the right to vote, the Court reasoned, there would have been no need for the Fifteenth.
The Court concluded:
We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power, to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a State to withhold.
The Nineteenth Amendment providing for women’s suffrage was introduced in Congress a few years after Minor. It was submitted to the states for ratification in 1919 and adopted in 1920, 46 years after Minor.
Goesaert v. Cleary
335 U.S. 464 (1948)
Mr. Justice Frankfurter delivered the opinion of the Court.
As part of the Michigan system for controlling the sale of liquor, bartenders are required to be licensed in all cities having a population of 50,000, or more, but no female may be so licensed unless she be ‘the wife or daughter of the male owner’ of a licensed liquor establishment. The case is here on direct appeal from an order of the District Court of three judges, * * * * denying an injunction to restrain the enforcement of the Michigan law. The claim, denied below, one judge dissenting, and renewed here, is that Michigan cannot forbid females generally from being barmaids and at the same time make an exception in favor of the wives and daughters of the owners of liquor establishments. Beguiling as the subject is, it need not detain us long. To ask whether or not the Equal Protection of the Laws Clause of the Fourteenth Amendment barred Michigan from making the classification the State has made between wives and daughters of owners of liquor places and wives and daughters of non-owners, is one of those rare instances where to state the question is in effect to answer it.
We are, to be sure, dealing with a historic calling. We meet the alewife, sprightly and ribald, in Shakespeare, but centuries before him she played a role in the social life of England. See, e.g.,Jusserand, English Wayfaring Life (1889). The Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly, in such matters as the regulation of the liquor traffic. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.
While Michigan may deny to all women opportunities for bartending, Michigan cannot play favorites among women without rhyme or reasons. The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations ‘which are different in fact or opinion to be treated in law as though they were the same.’ Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws. We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives. Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.
It would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of the equal protection of the laws has been applied. The generalties on the subject are not in dispute; their application turns peculiarly on the particular circumstances of a case. * * * *Suffice it to say that ‘A statute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.’
Nor is it unconstitutional for Michigan to withdraw from women the occupation of bartending because it allows women to serve as waitresses where liquor is dispensed. The District Court has sufficiently indicated the reasons that may have influenced the legislature in allowing women to be waitresses in a liquor establishment over which a man’s ownership provides control. Nothing need be added to what was said below as to the other grounds on which the Michigan law was assailed.
Judgment affirmed.
Mr. Justice Rutledge, with whom Mr. Justice Douglas and Mr. Justice Murphy join, dissenting.
While the equal protection clause does not require a legislature to achieve ‘abstract symmetry’ or to classify with ‘mathematical nicety,’ that clause does require lawmarkers to refrain from invidious distinctions of the sort drawn by the statute challenged in this case.
The statute arbitrarily discriminates between male and female owners of liquor establishments. A male owner, although he himself is always absent from his bar, may employ his wife and daughter as barmaids. A female owner may neither work as a barmaid herself nor employ her daughter in that position, even if a man is always present in the establishment to keep order. This inevitable result of the classification belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids. Since there could be no other conceivable justification for such discrimination against women owners of liquor establishments, the statute should be held invalid as a denial of equal protection.
B. Developing Intermediate Scrutiny
Reed v. Reed
404 U.S. 71 (1971)
Burger, C.J., delivered the opinion for a unanimous Court.
Richard Lynn Reed, a minor, died intestate in Ada County, Idaho, on March 29, 1967. His adoptive parents, who had separated sometime prior to his death, are the parties to this appeal. Approximately seven months after Richard’s death, his mother, appellant Sally Reed, filed a petition in the Probate Court of Ada County, seeking appointment as administratrix of her son’s estate. Prior to the date set for a hearing on the mother’s petition, appellee Cecil Reed, the father of the decedent, filed a competing petition seeking to have himself appointed administrator of the son’s estate. The probate court held a joint hearing on the two petitions and thereafter ordered that letters of administration be issued to appellee Cecil Reed upon his taking the oath and filing the bond required by law. The court treated §§ 15-312 and 15-314 of the Idaho Code as the controlling statutes, and read those sections as compelling a preference for Cecil Reed because he was a male.
Section 15-312 designates the persons who are entitled to administer the estate of one who dies intestate. In making these designations, that section lists 11 classes of persons who are so entitled, and provides, in substance, that the order in which those classes are listed in the section shall be determinative of the relative rights of competing applicants for letters of administration. One of the 11 classes so enumerated is “[t]he father or mother” of the person dying intestate. Under this section, then, appellant and appellee, being members of the same entitlement class, would seem to have been equally entitled to administer their son’s estate. Section 1314 provides, however, that
[o]f several persons claiming and equally entitled [under § 1312] to administer, males must be preferred to females, and relatives of the whole to those of the half blood.
In issuing its order, the probate court implicitly recognized the equality of entitlement of the two applicants under § 15-312, and noted that neither of the applicants was under any legal disability; the court ruled, however, that appellee, being a male, was to be preferred to the female appellant “by reason of Section 15-314 of the Idaho Code.” In stating this conclusion, the probate judge gave no indication that he had attempted to determine the relative capabilities of the competing applicants to perform the functions incident to the administration of an estate. It seems clear the probate judge considered himself bound by statute to give preference to the male candidate over the female, each being otherwise “equally entitled.”
Sally Reed appealed from the probate court order, and her appeal was treated by the District Court of the Fourth Judicial District of Idaho as a constitutional attack on § 15-314. In dealing with the attack, that court held that the challenged section violated the Equal Protection Clause of the Fourteenth Amendment, and was, therefore, void; the matter was ordered “returned to the Probate Court for its determination of which of the two parties” was better qualified to administer the estate.
This order was never carried out, however, for Cecil Reed took a further appeal to the Idaho Supreme Court, which reversed the District Court and reinstated the original order naming the father administrator of the estate. In reaching this result, the Idaho Supreme Court first dealt with the governing statutory law and held that, under § 15-312 “a father and mother are ‘equally entitled’ to letters of administration,” but the preference given to males by § 15-314 is “mandatory” and leaves no room for the exercise of a probate court’s discretion in the appointment of administrators. Having thus definitively and authoritatively interpreted the statutory provisions involved, the Idaho Supreme Court then proceeded to examine, and reject, Sally Reed’s contention that § 15-314 violates the Equal Protection Clause by giving a mandatory preference to males over females, without regard to their individual qualifications as potential estate administrators.
Sally Reed thereupon appealed for review by this Court * * * * and we noted probable jurisdiction. Having examined the record and considered the briefs and oral arguments of the parties, we have concluded that the arbitrary preference established in favor of males by § 15-314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.
Idaho does not, of course, deny letters of administration to women altogether. Indeed, under § 15-312, a woman whose spouse dies intestate has a preference over a son, father, brother, or any other male relative of the decedent. Moreover, we can judicially notice that, in this country, presumably due to the greater longevity of women, a large proportion of estates, both intestate and under wills of decedents, are administered by surviving widows.
Section 15-314 is restricted in its operation to those situations where competing applications for letters of administration have been filed by both male and female members of the same entitlement class established by § 15-312. In such situations, § 15-314 provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause.
In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Railway Express Agency v. New York (1949). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.
The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of §§ 15-312 and 15-314.
In upholding the latter section, the Idaho Supreme Court concluded that its objective was to eliminate one area of controversy when two or more persons, equally entitled under § 15-312, seek letters of administration, and thereby present the probate court “with the issue of which one should be named.” The court also concluded that, where such persons are not of the same sex, the elimination of females from consideration “is neither an illogical nor arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the relative merits . . . of the two or more petitioning relatives. . . .”
Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. The crucial question, however, is whether § 15-314 advances that objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.
We note finally that, if § 15-314 is viewed merely as a modifying appendage to § 15-312 and as aimed at the same objective, its constitutionality is not thereby saved. The objective of § 15-312 clearly is to establish degrees of entitlement of various classes of persons in accordance with their varying degrees and kinds of relationship to the intestate. Regardless of their sex, persons within any one of the enumerated classes of that section are similarly situated with respect to that objective. By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.
The judgment of the Idaho Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Frontiero v. Richardson
411 U.S. 677 (1973)
Mr. Justice Brennan announced the judgment of the Court and an opinion in which Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join.
The question before us concerns the right of a female member of the uniformed services to claim her spouse as a “dependent” for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U.S.C. 401, 403, and 10 U.S.C. 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a “dependent” without regard to whether she is in fact dependent upon him for any part of her support. A servicewoman, on the other hand, may not claim her husband as a “dependent” under these programs unless he is in fact dependent upon her for over one-half of his support. Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. We noted probable jurisdiction. We reverse.
I
* * * * Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her “dependent.” Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant’s application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support. Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. {footnote 5 states: “[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is “so unjustifiable as to be violative of due process,’” and includes a citation to Bolling v. Sharpe (1954)}.
In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse’s dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife’s support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive.
Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members, a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the “bread-winner” in the family – and the wife typically the “dependent” partner – “it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members.” Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District Court speculated that such differential treatment might conceivably lead to a “considerable saving of administrative expense and manpower.”
II
At the outset, appellants contend that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed (1971).
* * * * In reaching this result {in Reed}, the Court implicitly rejected appellee’s apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provided “dissimilar treatment for men and women who are . . . similarly situated.” The Court therefore held that, even though the State’s interest in achieving administrative efficiency “is not without some legitimacy,” “[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the [Constitution] . . . .” This departure from “traditional” rational-basis analysis with respect to sex-based classifications is clearly justified.
There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:
“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .
“. . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”
Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring).
As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generallyL. Kanowitz, Women and the Law: The Unfinished Revolution 5-6 (1969); G. Myrdal, An American Dilemma 1073 (20th anniversary ed. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right – which is itself “preservative of other basic civil and political rights” – until adoption of the Nineteenth Amendment half a century later.
It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. See generallyK. Amundsen, The Silenced Majority: Women and American Democracy (1971); The President’s Task Force on Women’s Rights and Responsibilities, A Matter of Simple Justice (1970).
Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate “the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . .” And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.
We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Title VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of “race, color, religion, sex, or national origin.” Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act “shall discriminate . . . between employees on the basis of sex.” And § 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal branch of Government is not without significance to the question presently under consideration.
With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.
III
The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, * * * * a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse’s support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse’s support. Thus, to this extent at least, it may fairly be said that these statutes command “dissimilar treatment for men and women who are . . . similarly situated.” Reed v. Reed.
Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere “administrative convenience.” In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.
The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits. And in light of the fact that the dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits, rather than through the more costly hearing process, the Government’s explanation of the statutory scheme is, to say the least, questionable.
In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, “the Constitution recognizes higher values than speed and efficiency.” And when we enter the realm of “strict judicial scrutiny,” there can be no doubt that “administrative convenience” is not a shibboleth, the mere recitation of which dictates constitutionality. On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands “dissimilar treatment for men and women who are . . . similarly situated,” and therefore involves the “very kind of arbitrary legislative choice forbidden by the [Constitution] . . . .” Reed v. Reed. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.
Reversed.
Mr. Justice Powell, with whom The Chief Justice {Burger} and Mr. Justice Blackmun join, concurring in the judgment.
I agree that the challenged statutes constitute an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment, but I cannot join the opinion of Mr. Justice Brennan, which would hold that all classifications based upon sex, “like classifications based upon race, alienage, and national origin,” are “inherently suspect, and must therefore be subjected to close judicial scrutiny.” It is unnecessary for the Court in this case to characterize sex as a suspect classification, with all of the far-reaching implications of such a holding. Reed v. Reed (1971), which abundantly supports our decision today, did not add sex to the narrowly limited group of classifications which are inherently suspect. In my view, we can and should decide this case on the authority of Reed, and reserve for the future any expansion of its rationale.
There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seems to me that this reaching out to preempt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.
There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.
Craig v. Boren
429 U.S. 190 (1976)
Mr. Justice Brennan delivered the opinion of the Court.
The interaction of two sections of an Oklahoma statute, Okla. Stat., Tit. 37, 241 and 245 (1958 and Supp. 1976), prohibits the sale of “nonintoxicating” 3.2% beer to males under the age of 21 and to females under the age of 18. The question to be decided is whether such a gender-based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment.
This action was brought in the District Court for the Western District of Oklahoma on December 20, 1972, by appellant Craig, a male then between 18 and 21 years of age, and by appellant Whitener, a licensed vendor of 3.2% beer. The complaint sought declaratory and injunctive relief against enforcement of the gender-based differential on the ground that it constituted invidious discrimination against males 18-20 years of age. A three-judge court convened sustained the constitutionality of the statutory differential and dismissed the action. We noted probable jurisdiction of appellants’ appeal. We reverse.
I
We first address a preliminary question of standing * * * * {omitted; the Court found the claims could proceed.}
A
Before 1972, Oklahoma defined the commencement of civil majority at age 18 for females and age 21 for males. In contrast, females were held criminally responsible as adults at age 18 and males at age 16. After the Court of Appeals for the Tenth Circuit held in 1972, on the authority of Reed v. Reed (1971), that the age distinction was unconstitutional for purposes of establishing criminal responsibility as adults, the Oklahoma Legislature fixed age 18 as applicable to both males and females. In 1972, 18 also was established as the age of majority for males and females in civil matters, except that 241 and 245 of the 3.2% beer statute were simultaneously codified to create an exception to the gender-free rule.
Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are “subject to scrutiny under the Equal Protection Clause.” To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. {note: there is no citation here}. Thus, in Reed, the objectives of “reducing the workload on probate courts,” and “avoiding intrafamily controversy,” were deemed of insufficient importance to sustain use of an overt gender criterion in the appointment of administrators of intestate decedents’ estates. Decisions following Reed similarly have rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications. See, e. g., Stanley v. Illinois (1972); Frontiero v. Richardson (1973); cf. Schlesinger v. Ballard, (1975). And only two Terms ago, Stanton v. Stanton (1975), expressly stating that Reed v. Reed was “controlling,” held that Reed required invalidation of a Utah differential age-of-majority statute, notwithstanding the statute’s coincidence with and furtherance of the State’s purpose of fostering “old notions” of role typing and preparing boys for their expected performance in the economic and political worlds.
Reed v. Reed has also provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, “archaic and overbroad” generalizations, Schlesinger v. Ballard, concerning the financial position of servicewomen, Frontiero v. Richardson, and working women, Weinberger v. Wiesenfeld (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the “marketplace and world of ideas” were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton; Taylor v. Louisiana (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact.
In this case, too, “Reed, we feel, is controlling . . .,” Stanton v. Stanton. We turn then to the question whether, under Reed, the difference between males and females with respect to the purchase of 3.2% beer warrants the differential in age drawn by the Oklahoma statute. We conclude that it does not.
B
The District Court recognized that Reed v. Reed was controlling. In applying the teachings of that case, the court found the requisite important governmental objective in the traffic-safety goal proffered by the Oklahoma Attorney General. It then concluded that the statistics introduced by the appellees established that the gender-based distinction was substantially related to achievement of that goal.
C
We accept for purposes of discussion the District Court’s identification of the objective underlying § 241 and § 245 as the enhancement of traffic safety. Clearly, the protection of public health and safety represents an important function of state and local governments. However, appellees’ statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge.
The appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for “driving under the influence” and “drunkenness” substantially exceeded female arrests for that same age period. Similarly, youths aged 17-21 were found to be overrepresented among those killed or injured in traffic accidents, with males again numerically exceeding females in this regard. Third, a random roadside survey in Oklahoma City revealed that young males were more inclined to drive and drink beer than were their female counterparts. Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for “driving under the influence.” Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma’s experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol. Conceding that “the case is not free from doubt,” the District Court nonetheless concluded that this statistical showing substantiated “a rational basis for the legislative judgment underlying the challenged classification.”
Even were this statistical evidence accepted as accurate, it nevertheless offers only a weak answer to the equal protection question presented here. The most focused and relevant of the statistical surveys, arrests of 18-20-year-olds for alcohol-related driving offenses, exemplifies the ultimate unpersuasiveness of this evidentiary record. Viewed in terms of the correlation between sex and the actual activity that Oklahoma seeks to regulate – driving while under the influence of alcohol – the statistics broadly establish that .18% of females and 2% of males in that age group were arrested for that offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device. Certainly if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous “fit.” Indeed, prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive empirical relationships than this.
Moreover, the statistics exhibit a variety of other shortcomings that seriously impugn their value to equal protection analysis. Setting aside the obvious methodological problems, the surveys do not adequately justify the salient features of Oklahoma’s gender-based traffic-safety law. None purports to measure the use and dangerousness of 3.2% beer as opposed to alcohol generally, a detail that is of particular importance since, in light of its low alcohol lever, Oklahoma apparently considers the 3.2% beverage to be “nonintoxicating.” Moreover, many of the studies, while graphically documenting the unfortunate increase in driving while under the influence of alcohol, make no effort to relate their findings to age-sex differential as involved here. Indeed, the only survey that explicitly centered its attention upon young drivers and their use of beer – albeit apparently not of the diluted 3.2% variety – reached results that hardly can be viewed as impressive in justifying either a gender or age classification.
There is no reason to belabor this line of analysis. It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause. Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it is further recognized that Oklahoma’s statute prohibits only the selling of 3.2% beer to young males and not their drinking the beverage once acquired (even after purchase by their 18-20-year-old female companions), the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed’s requirement that the gender-based difference be substantially related to achievement of the statutory objective.
We hold, therefore, that under Reed, Oklahoma’s 3.2% beer statute invidiously discriminates against males 18-20 years of age.
D
Appellees argue, however, that 241 and 245 enforce state policies concerning the sale and distribution of alcohol and by force of the Twenty-first Amendment should therefore be held to withstand the equal protection challenge. * * * *
In sum, the principles embodied in the Equal Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. We thus hold that the operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case.
We conclude that the gender-based differential contained in Okla. Stat., Tit. 37, 245 constitutes a denial of the equal protection of the laws to males aged 18-20and reverse the judgment of the District Court.
It is so ordered.
Mr. Justice Stevens, concurring.
There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard.
I am inclined to believe that what has become known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion. I also suspect that a careful explanation of the reasons motivating particular decisions may contribute more to an identification of that standard than an attempt to articulate it in all-encompassing terms. It may therefore be appropriate for me to state the principal reasons which persuaded me to join the Court’s opinion.
In this case, the classification is not as obnoxious as some the Court has condemned, nor as inoffensive as some the Court has accepted. It is objectionable because it is based on an accident of birth, because it is a mere remnant of the now almost universally rejected tradition of discriminating against males in this age bracket, and because, to the extent it reflects any physical difference between males and females, it is actually perverse. The question then is whether the traffic safety justification put forward by the State is sufficient to make an otherwise offensive classification acceptable.
The classification is not totally irrational. For the evidence does indicate that there are more males than females in this age bracket who drive and also more who drink. Nevertheless, there are several reasons why I regard the justification as unacceptable. It is difficult to believe that the statute was actually intended to cope with the problem of traffic safety, since it has only a minimal effect on access to a not very intoxicating beverage and does not prohibit its consumption. Moreover, the empirical data submitted by the State accentuate the unfairness of treating all 18-20-year-old males as inferior to their female counterparts. The legislation imposes a restraint on 100% of the males in the class allegedly because about 2% of them have probably violated one or more laws relating to the consumption of alcoholic beverages. It is unlikely that this law will have a significant deterrent effect either on that 2% or on the law-abiding 98%. But even assuming some such slight benefit, it does not seem to me that an insult to all of the young men of the State can be justified by visiting the sins of the 2% on the 98%.
Mr. Justice Rehnquist, dissenting.
The Court’s disposition of this case is objectionable on two grounds. First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications. Second is the Court’s enunciation of this standard, without citation to any source, as being that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” (emphasis added). The only redeeming feature of the Court’s opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality opinion in Frontiero v. Richardson (1973), from their view that sex is a “suspect” classification for purposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the “rational basis” equal protection analysis expounded in cases such as * * * * Williamson v. Lee Optical Co., (1955), and I believe that it is constitutional under that analysis.
I
In Frontiero v. Richardson, the opinion for the plurality sets forth the reasons of four Justices for concluding that sex should be regarded as a suspect classification for purposes of equal protection analysis. * * * *
Subsequent to Frontiero, the Court has declined to hold that sex is a suspect class, Stanton v. Stanton (1975) and no such holding is imported by the Court’s resolution of this case. However, the Court’s application here of an elevated or “intermediate” level scrutiny, like that invoked in cases dealing with discrimination against females, raises the question of why the statute here should be treated any differently from countless legislative classifications unrelated to sex which have been upheld under a minimum rationality standard. Dandridge v. Williams (1970); Williamson v. Lee Optical Co.
Most obviously unavailable to support any kind of special scrutiny in this case, is a history or pattern of past discrimination, such as was relied on by the plurality in Frontiero to support its invocation of strict scrutiny. There is no suggestion in the Court’s opinion that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts.
The Court does not discuss the nature of the right involved, and there is no reason to believe that it sees the purchase of 3.2% beer as implicating any important interest, let alone one that is “fundamental” in the constitutional sense of invoking strict scrutiny. Indeed, the Court’s accurate observation that the statute affects the selling but not the drinking of 3.2% beer, further emphasizes the limited effect that it has on even those persons in the age group involved. There is, in sum, nothing about the statutory classification involved here to suggest that it affects an interest, or works against a group, which can claim under the Equal Protection Clause that it is entitled to special judicial protection.
It is true that a number of our opinions contain broadly phrased dicta implying that the same test should be applied to all classifications based on sex, whether affecting females or males. However, before today, no decision of this Court has applied an elevated level of scrutiny to invalidate a statutory discrimination harmful to males, except where the statute impaired an important personal interest protected by the Constitution. There being no such interest here, and there being no plausible argument that this is a discrimination against females, the Court’s reliance on our previous sex-discrimination cases is ill-founded. It treats gender classification as a talisman which – without regard to the rights involved or the persons affected – calls into effect a heavier burden of judicial review.
The Court’s conclusion that a law which treats males less favorably than females “must serve important governmental objectives and must be substantially related to achievement of those objectives” apparently comes out of thin air. The Equal Protection Clause contains no such language, and none of our previous cases adopt that standard. I would think we have had enough difficulty with the two standards of review which our cases have recognized – the norm of “rational basis,” and the “compelling state interest” required where a “suspect classification” is involved – so as to counsel weightily against the insertion of still another “standard” between those two. How is this Court to divine what objectives are important? How is it to determine whether a particular law is “substantially” related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at “important” objectives or, whether the relationship to those objectives is “substantial” enough.
I would have thought that if this Court were to leave anything to decision by the popularly elected branches of the Government, where no constitutional claim other than that of equal protection is invoked, it would be the decision as to what governmental objectives to be achieved by law are “important,” and which are not. As for the second part of the Court’s new test, the Judicial Branch is probably in no worse position than the Legislative or Executive Branches to determine if there is any rational relationship between a classification and the purpose which it might be thought to serve. But the introduction of the adverb “substantially” requires courts to make subjective judgments as to operational effects, for which neither their expertise nor their access to data fits them. And even if we manage to avoid both confusion and the mirroring of our own preferences in the development of this new doctrine, the thousands of judges in other courts who must interpret the Equal Protection Clause may not be so fortunate.
II
The applicable rational-basis test is one which “permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. * * * *”
Our decisions indicate that application of the Equal Protection Clause in a context not justifying an elevated level of scrutiny does not demand “mathematical nicety” or the elimination of all inequality. Those cases recognize that the practical problems of government may require rough accommodations of interests, and hold that such accommodations should be respected unless no reasonable basis can be found to support them. Dandridge v. Williams. Whether the same ends might have been better or more precisely served by a different approach is no part of the judicial inquiry under the traditional minimum rationality approach. * * * *
The Court’s criticism of the statistics relied on by the District Court conveys the impression that a legislature in enacting a new law is to be subjected to the judicial equivalent of a doctoral examination in statistics. Legislatures are not held to any rules of evidence such as those which may govern courts or other administrative bodies, and are entitled to draw factual conclusions on the basis of the determination of probable cause which an arrest by a police officer normally represents. In this situation, they could reasonably infer that the incidence of drunk driving is a good deal higher than the incidence of arrest.
And while, as the Court observes, relying on a report to a Presidential Commission which it cites in a footnote, such statistics may be distorted as a result of stereotyping, the legislature is not required to prove before a court that its statistics are perfect. In any event, if stereotypes are as pervasive as the Court suggests, they may in turn influence the conduct of the men and women in question, and cause the young men to conform to the wild and reckless image which is their stereotype. * * * *
The Oklahoma Legislature could have believed that 18-20-year-old males drive substantially more, and tend more often to be intoxicated than their female counterparts; that they prefer beer and admit to drinking and driving at a higher rate than females; and that they suffer traffic injuries out of proportion to the part they make up of the population. Under the appropriate rational-basis test for equal protection, it is neither irrational nor arbitrary to bar them from making purchases of 3.2% beer, which purchases might in many cases be made by a young man who immediately returns to his vehicle with the beverage in his possession. The record does not give any good indication of the true proportion of males in the age group who drink and drive (except that it is no doubt greater than the 2% who are arrested), but whatever it may be I cannot see that the mere purchase right involved could conceivably raise a due process question. There being no violation of either equal protection or due process, the statute should accordingly be upheld.
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United States v. Virginia (VMI)
518 U.S. 515 (1996)
Justice Ginsburg delivered the opinion of the Court.
Virginia’s public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.
I
Founded in 1839, VMI is today the sole single-sex school among Virginia’s 15 public institutions of higher learning. VMI’s distinctive mission is to produce “citizen-soldiers,” men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an “adversative method” modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school’s graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course.
VMI has notably succeeded in its mission to produce leaders; among its alumni are military generals, Members of Congress, and business executives. The school’s alumni overwhelmingly perceive that their VMI training helped them to realize their personal goals. VMI’s endowment reflects the loyalty of its graduates; VMI has the largest per-student endowment of all undergraduate institutions in the Nation.
Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women. And the school’s impressive record in producing leaders has made admission desirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords.
A
From its establishment in 1839 as one of the Nation’s first state military colleges, VMI has remained financially supported by Virginia and “subject to the control of the [Virginia] General Assembly,” First southern college to teach engineering and industrial chemistry, VMI once provided teachers for the State’s schools. Civil War strife threatened the school’s vitality, but a resourceful superintendent regained legislative support by highlighting “VMI’s great potential[,] through its technical know-how,” to advance Virginia’s postwar recovery.
VMI today enrolls about 1,300 men as cadets. Its academic offerings in the liberal arts, sciences, and engineering are also available at other public colleges and universities in Virginia. But VMI’s mission is special. It is the mission of the school
“to produce educated and honorable men, prepared for the varied work of civil life, imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready as citizen-soldiers to defend their country in time of national peril.”
In contrast to the federal service academies, institutions maintained “to prepare cadets for career service in the armed forces,” VMI’s program “is directed at preparation for both military and civilian life”; “[o]nly about 15% of VMI cadets enter career military service.”
VMI produces its “citizen-soldiers” through “an adversative, or doubting, model of education” which features “[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values.” As one Commandant of Cadets described it, the adversative method “dissects the young student,” and makes him aware of his “limits and capabilities,” so that he knows “how far he can go with his anger, . . . how much he can take under stress, . . . exactly what he can do when he is physically exhausted.”
VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills. Entering students are incessantly exposed to the rat line, “an extreme form of the adversative model,” comparable in intensity to Marine Corps boot camp. Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors.
VMI’s “adversative model” is further characterized by a hierarchical “class system” of privileges and responsibilities, a “dyke system” for assigning a senior class mentor to each entering class “rat,” and a stringently enforced “honor code,” which prescribes that a cadet “‘does not lie, cheat, steal nor tolerate those who do.’”
VMI attracts some applicants because of its reputation as an extraordinarily challenging military school, and “because its alumni are exceptionally close to the school.” “[W]omen have no opportunity anywhere to gain the benefits of [the system of education at VMI].”
B
In 1990, prompted by a complaint filed with the Attorney General by a female high-school student seeking admission to VMI, the United States sued the Commonwealth of Virginia and VMI, alleging that VMI’s exclusively male admission policy violated the Equal Protection Clause of the Fourteenth Amendment. Trial of the action consumed six days and involved an array of expert witnesses on each side.
In the two years preceding the lawsuit, the District Court noted, VMI had received inquiries from 347 women, but had responded to none of them. “[S]ome women, at least,” the court said, “would want to attend the school if they had the opportunity.” The court further recognized that, with recruitment, VMI could “achieve at least 10% female enrollment”-“a sufficient ‘critical mass’ to provide the female cadets with a positive educational experience.” And it was also established that “some women are capable of all of the individual activities required of VMI cadets.” In addition, experts agreed that if VMI admitted women, “the VMI ROTC experience would become a better training program from the perspective of the armed forces, because it would provide training in dealing with a mixed-gender army.”
The District Court ruled in favor of VMI, however, and rejected the equal protection challenge pressed by the United States. That court correctly recognized that Mississippi Univ. for Women v. Hogan (1982), was the closest guide. There, this Court underscored that a party seeking to uphold government action based on sex must establish an “exceedingly persuasive justification” for the classification. Mississippi Univ. for Women. To succeed, the defender of the challenged action must show “at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”
The District Court reasoned that education in “a single-gender environment, be it male or female,” yields substantial benefits. VMI’s school for men brought diversity to an otherwise coeducational Virginia system, and that diversity was “enhanced by VMI’s unique method of instruction.” If single-gender education for males ranks as an important governmental objective, it becomes obvious, the District Court concluded, that the only means of achieving the objective “is to exclude women from the all-male institution-VMI.”
* * * * The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court’s judgment. The appellate court held: “The Commonwealth of Virginia has not . . . advanced any state policy by which it can justify its determination, under an announced policy of diversity, to afford VMI’s unique type of program to men and not to women.”
The appeals court greeted with skepticism Virginia’s assertion that it offers single-sex education at VMI as a facet of the State’s overarching and undisputed policy to advance “autonomy and diversity.” The court underscored Virginia’s nondiscrimination commitment: “‘[I]t is extremely important that [colleges and universities] deal with faculty, staff, and students without regard to sex, race, or ethnic origin.’” * * * * The parties agreed that “some women can meet the physical standards now imposed on men,” and the court was satisfied that “neither the goal of producing citizen soldiers nor VMI’s implementing methodology is inherently unsuitable to women.” The Court of Appeals, however, accepted the District Court’s finding that “at least these three aspects of VMI’s program-physical training, the absence of privacy, and the adversative approach-would be materially affected by coeducation.” Remanding the case, the appeals court assigned to Virginia, in the first instance, responsibility for selecting a remedial course. The court suggested these options for the State: Admit women to VMI; establish parallel institutions or programs; or abandon state support, leaving VMI free to pursue its policies as a private institution. In May 1993, this Court denied certiorari.
C
In response to the Fourth Circuit’s ruling, Virginia proposed a parallel program for women: Virginia Women’s Institute for Leadership (VWIL). The 4-year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI’s mission-to produce “citizen-soldiers”-the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources.
The average combined SAT score of entrants at Mary Baldwin is about 100 points lower than the score for VMI freshmen. Mary Baldwin’s faculty holds “significantly fewer Ph.D.’s than the faculty at VMI,” and receives significantly lower salaries. While VMI offers degrees in liberal arts, the sciences, and engineering, Mary Baldwin, at the time of trial, offered only bachelor of arts degrees. A VWIL student seeking to earn an engineering degree could gain one, without public support, by attending Washington University in St. Louis, Missouri, for two years, paying the required private tuition.
Experts in educating women at the college level composed the Task Force charged with designing the VWIL program; Task Force members were drawn from Mary Baldwin’s own faculty and staff. Training its attention on methods of instruction appropriate for “most women,” the Task Force determined that a military model would be “wholly inappropriate” for VWIL.
VWIL students would participate in ROTC programs and a newly established, “largely ceremonial” Virginia Corps of Cadets, but the VWIL House would not have a military format, and VWIL would not require its students to eat meals together or to wear uniforms during the school day. In lieu of VMI’s adversative method, the VWIL Task Force favored “a cooperative method which reinforces self-esteem.” In addition to the standard bachelor of arts program offered at Mary Baldwin, VWIL students would take courses in leadership, complete an off-campus leadership externship, participate in community service projects, and assist in arranging a speaker series.
Virginia represented that it will provide equal financial support for in-state VWIL students and VMI cadets, and the VMI Foundation agreed to supply a \$5.4625 million endowment for the VWIL program. Mary Baldwin’s own endowment is about \$19 million; VMI’s is \$131 million. Mary Baldwin will add \$35 million to its endowment based on future commitments; VMI will add \$220 million. The VMI Alumni Association has developed a network of employers interested in hiring VMI graduates. The Association has agreed to open its network to VWIL graduates, but those graduates will not have the advantage afforded by a VMI degree.
D
Virginia returned to the District Court seeking approval of its proposed remedial plan, and the court decided the plan met the requirements of the Equal Protection Clause. The District Court again acknowledged evidentiary support for these determinations: “[T]he VMI methodology could be used to educate women and, in fact, some women . . . may prefer the VMI methodology to the VWIL methodology.” But the “controlling legal principles,” the District Court decided, “do not require the Commonwealth to provide a mirror image VMI for women.” The court anticipated that the two schools would “achieve substantially similar outcomes.” It concluded: “If VMI marches to the beat of a drum, then Mary Baldwin marches to the melody of a fife and when the march is over, both will have arrived at the same destination.”
A divided Court of Appeals affirmed the District Court’s judgment. * * * * “[P]roviding the option of a single-gender college education may be considered a legitimate and important aspect of a public system of higher education,” the appeals court observed; that objective, the court added, is “not pernicious.” Moreover, the court continued, the adversative method vital to a VMI education “has never been tolerated in a sexually heterogeneous environment.” The method itself “was not designed to exclude women,” the court noted, but women could not be accommodated in the VMI program, the court believed, for female participation in VMI’s adversative training “would destroy . . . any sense of decency that still permeates the relationship between the sexes.”
Having determined, deferentially, the legitimacy of Virginia’s purpose, the court considered the question of means. Exclusion of “men at Mary Baldwin College and women at VMI,” the court said, was essential to Virginia’s purpose, for without such exclusion, the State could not “accomplish [its] objective of providing single-gender education.”
The court recognized that, as it analyzed the case, means merged into end, and the merger risked “bypass[ing] any equal protection scrutiny.” * * * *
Senior Circuit Judge Phillips dissented. The court, in his judgment, had not held Virginia to the burden of showing an “‘exceedingly persuasive [justification]’” for the State’s action (quoting Mississippi University for Women). In Judge Phillips’ view, the court had accepted “rationalizations compelled by the exigencies of this litigation,” and had not confronted the State’s “actual overriding purpose.” That purpose, Judge Phillips said, was clear from the historical record; it was “not to create a new type of educational opportunity for women, . . . nor to further diversify the Commonwealth’s higher education system[,] . . . but [was] simply . . . to allow VMI to continue to exclude women in order to preserve its historic character and mission.” * * * *
The Fourth Circuit denied rehearing en banc. Circuit Judge Motz, joined by Circuit Judges Hall, Murnaghan, and Michael, filed a dissenting opinion. * * * * “Women need not be guaranteed equal ‘results,’” Judge Motz said, “but the Equal Protection Clause does require equal opportunity . . . [and] that opportunity is being denied here.”
III
The cross-petitions in this case present two ultimate issues. First, does Virginia’s exclusion of women from the educational opportunities provided by VMI-extraordinary opportunities for military training and civilian leadership development-deny to women “capable of all of the individual activities required of VMI cadets,” the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, if VMI’s “unique” situation, -as Virginia’s sole single-sex public institution of higher education-offends the Constitution’s equal protection principle, what is the remedial requirement?
IV
We note, once again, the core instruction of this Court’s pathmarking decisions in J. E. B. v. Alabama ex rel. T. B. (1994), and Mississippi Univ. for Women: Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action.
Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, “our Nation has had a long and unfortunate history of sex discrimination.” Frontiero v. Richardson (1973). Through a century plus three decades and more of that history, women did not count among voters composing “We the People”; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “basis in reason” could be conceived for the discrimination. See, e.g., Goesaert v. Cleary (1948).
In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed. Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. See, e.g., Kirchberg v. Feenstra (1981) (affirming invalidity of Louisiana law that made husband “head and master” of property jointly owned with his wife, giving him unilateral right to dispose of such property without his wife’s consent); Stanton v. Stanton (1975) (invalidating Utah requirement that parents support boys until age 21, girls only until age 18).
Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B., (Kennedy, J., concurring in judgment) (case law evolving since 1971 “reveal[s] a strong presumption that gender classifications are invalid”). To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women. The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” Id. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld (1975); Califano v. Goldfarb (1977) (Stevens, J., concurring in judgment).
The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia (1967). Physical differences between men and women, however, are enduring: “[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.” Ballard v. United States (1946).
“Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” Califano v. Webster (1977) (per curiam), to “promot[e] equal employment opportunity,” see California Federal Sav. & Loan Assn. v. Guerra (1987), to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, see Goesaert, to create or perpetuate the legal, social, and economic inferiority of women.
Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no “exceedingly persuasive justification” for excluding all women from the citizen-soldier training afforded by VMI. We therefore affirm the Fourth Circuit’s initial judgment, which held that Virginia had violated the Fourteenth Amendment’s Equal Protection Clause. Because the remedy proffered by Virginia-the Mary Baldwin VWIL program-does not cure the constitutional violation, i.e., it does not provide equal opportunity, we reverse the Fourth Circuit’s final judgment in this case.
V
The Fourth Circuit initially held that Virginia had advanced no state policy by which it could justify, under equal protection principles, its determination “to afford VMI’s unique type of program to men and not to women.” Virginia challenges that “liability” ruling and asserts two justifications in defense of VMI’s exclusion of women. First, the Commonwealth contends, “single-sex education provides important educational benefits,” and the option of single-sex education contributes to “diversity in educational approaches.” Second, the Commonwealth argues, “the unique VMI method of character development and leadership training,” the school’s adversative approach, would have to be modified were VMI to admit women. We consider these two justifications in turn.
A
Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation. Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the State. In cases of this genre, our precedent instructs that “benign” justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.
Mississippi Univ. for Women is immediately in point. There the State asserted, in justification of its exclusion of men from a nursing school, that it was engaging in “educational affirmative action” by “compensat[ing] for discrimination against women.” Undertaking a “searching analysis,” the Court found no close resemblance between “the alleged objective” and “the actual purpose underlying the discriminatory classification.” Pursuing a similar inquiry here, we reach the same conclusion.
Neither recent nor distant history bears out Virginia’s alleged pursuit of diversity through single-sex educational options. In 1839, when the State established VMI, a range of educational opportunities for men and women was scarcely contemplated. Higher education at the time was considered dangerous for women; reflecting widely held views about women’s proper place, the Nation’s first universities and colleges-for example, Harvard in Massachusetts, William and Mary in Virginia-admitted only men. VMI was not at all novel in this respect: In admitting no women, VMI followed the lead of the State’s flagship school, the University of Virginia, founded in 1819. * * * *
Our 1982 decision in Mississippi Univ. for Women prompted VMI to reexamine its male-only admission policy. Virginia relies on that reexamination as a legitimate basis for maintaining VMI’s single-sex character. A Mission Study Committee, appointed by the VMI Board of Visitors, studied the problem from October 1983 until May 1986, and in that month counseled against “change of VMI status as a single-sex college.” Whatever internal purpose the Mission Study Committee served-and however well-meaning the framers of the report-we can hardly extract from that effort any state policy evenhandedly to advance diverse educational options. As the District Court observed, the Committee’s analysis “primarily focuse[d] on anticipated difficulties in attracting females to VMI,” and the report, overall, supplied “very little indication of how th[e] conclusion was reached.”
In sum, we find no persuasive evidence in this record that VMI’s male-only admission policy “is in furtherance of a state policy of ‘diversity.’” No such policy, the Fourth Circuit observed, can be discerned from the movement of all other public colleges and universities in Virginia away from single-sex education. That court also questioned “how one institution with autonomy, but with no authority over any other state institution, can give effect to a state policy of diversity among institutions.” A purpose genuinely to advance an array of educational options, as the Court of Appeals recognized, is not served by VMI’s historic and constant plan-a plan to “affor[d] a unique educational benefit only to males.” However “liberally” this plan serves the State’s sons, it makes no provision whatever for her daughters. That is not equal protection.
B
Virginia next argues that VMI’s adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessarily be “radical,” so “drastic,” Virginia asserts, as to transform, indeed “destroy,” VMI’s program. Neither sex would be favored by the transformation, Virginia maintains: Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would “eliminat[e] the very aspects of [the] program that distinguish [VMI] from . . . other institutions of higher education in Virginia.”
The District Court forecast from expert witness testimony, and the Court of Appeals accepted, that coeducation would materially affect “at least these three aspects of VMI’s program-physical training, the absence of privacy, and the adversative approach.” And it is uncontested that women’s admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets. It is also undisputed, however, that “the VMI methodology could be used to educate women.” The District Court even allowed that some women may prefer it to the methodology a women’s college might pursue. “[S]ome women, at least, would want to attend [VMI] if they had the opportunity,” the District Court recognized, and “some women,” the expert testimony established, “are capable of all of the individual activities required of VMI cadets.” The parties, furthermore, agree that “some women can meet the physical standards [VMI] now impose[s] on men.” In sum, as the Court of Appeals stated, “neither the goal of producing citizen soldiers,” VMI’s raison d’étre, “nor VMI’s implementing methodology is inherently unsuitable to women.”
In support of its initial judgment for Virginia, a judgment rejecting all equal protection objections presented by the United States, the District Court made “findings” on “gender-based developmental differences.” These “findings” restate the opinions of Virginia’s expert witnesses, opinions about typically male or typically female “tendencies.” For example, “[m]ales tend to need an atmosphere of adversativeness,” while “[f]emales tend to thrive in a cooperative atmosphere.” “I’m not saying that some women don’t do well under [the] adversative model,” VMI’s expert on educational institutions testified, “undoubtedly there are some [women] who do”; but educational experiences must be designed “around the rule,” this expert maintained, and not “around the exception.”
The United States does not challenge any expert witness estimation on average capacities or preferences of men and women. Instead, the United States emphasizes that time and again since this Court’s turning point decision in Reed v. Reed (1971), we have cautioned reviewing courts to take a “hard look” at generalizations or “tendencies” of the kind pressed by Virginia, and relied upon by the District Court. State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on “fixed notions concerning the roles and abilities of males and females.” Mississippi Univ. for Women; see J. E. B. (equal protection principles, as applied to gender classifications, mean state actors may not rely on “overbroad” generalizations to make “judgments about people that are likely to . . . perpetuate historical patterns of discrimination”).
It may be assumed, for purposes of this decision, that most women would not choose VMI’s adversative method. As Fourth Circuit Judge Motz observed, however, in her dissent from the Court of Appeals’ denial of rehearing en banc, it is also probable that “many men would not want to be educated in such an environment.” (On that point, even our dissenting colleague might agree.) Education, to be sure, is not a “one size fits all” business. The issue, however, is not whether “women-or men-should be forced to attend VMI”; rather, the question is whether the State can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.
The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophec[ies],” once routinely used to deny rights or opportunities. When women first sought admission to the bar and access to legal education, concerns of the same order were expressed. For example, in 1876, the Court of Common Pleas of Hennepin County, Minnesota, explained why women were thought ineligible for the practice of law. Women train and educate the young, the court said, which
“forbids that they shall bestow that time (early and late) and labor, so essential in attaining to the eminence to which the true lawyer should ever aspire. It cannot therefore be said that the opposition of courts to the admission of females to practice . . . is to any extent the outgrowth of . . . ‘old fogyism[.]’ . . . [I]t arises rather from a comprehension of the magnitude of the responsibilities connected with the successful practice of law, and a desire to grade up the profession.”
In re Application of Martha Angle Dorsett to Be Admitted to Practice as Attorney and Counselor at Law (Minn. C. P. Hennepin Cty., 1876), in The Syllabi, Oct. 21, 1876, pp. 5, 6 (emphasis added).
* * * * Medical faculties similarly resisted men and women as partners in the study of medicine. (“‘God forbid that I should ever see men and women aiding each other to display with the scalpel the secrets of the reproductive system . . . .’”)). More recently, women seeking careers in policing encountered resistance based on fears that their presence would “undermine male solidarity;” deprive male partners of adequate assistance; and lead to sexual misconduct. Field studies did not confirm these fears.
Women’s successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded. The State’s justification for excluding all women from “citizen-soldier” training for which some are qualified, in any event, cannot rank as “exceedingly persuasive,” as we have explained and applied that standard.
Virginia and VMI trained their argument on “means” rather than “end,” and thus misperceived our precedent. Single-sex education at VMI serves an “important governmental objective,” they maintained, and exclusion of women is not only “substantially related,” it is essential to that objective. By this notably circular argument, the “straightforward” test Mississippi Univ. for Women described, was bent and bowed.
The State’s misunderstanding and, in turn, the District Court’s, is apparent from VMI’s mission: to produce “citizen-soldiers,” individuals
“imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready . . . to defend their country in time of national peril.”
Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the State’s great goal is not substantially advanced by women’s categorical exclusion, in total disregard of their individual merit, from the State’s premier “citizen-soldier” corps. Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification,’” Mississippi Univ. for Women, that must be the solid base for any gender-defined classification.
VI
In the second phase of the litigation, Virginia presented its remedial plan-maintain VMI as a male-only college and create VWIL as a separate program for women. * * * * The United States challenges this “remedial” ruling as pervasively misguided.
A
A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in “the position they would have occupied in the absence of [discrimination].” See Milliken v. Bradley (1977). The constitutional violation in this case is the categorical exclusion of women from an extraordinary educational opportunity afforded men. * * * *
Virginia chose not to eliminate, but to leave untouched, VMI’s exclusionary policy. For women only, however, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities. Having violated the Constitution’s equal protection requirement, Virginia was obliged to show that its remedial proposal “directly address[ed] and relate[d] to” the violation, see Milliken, i.e., the equal protection denied to women ready, willing, and able to benefit from educational opportunities of the kind VMI offers. Virginia described VWIL as a “parallel program,” and asserted that VWIL shares VMI’s mission of producing “citizen-soldiers” and VMI’s goals of providing “education, military training, mental and physical discipline, character . . . and leadership development.” * * * * In exposing the character of, and differences in, the VMI and VWIL programs, we recapitulate facts earlier presented. * * * *
Virginia maintains that these methodological differences are “justified pedagogically,” based on “important differences between men and women in learning and developmental needs,” “psychological and sociological differences” Virginia describes as “real” and “not stereotypes.” The Task Force charged with developing the leadership program for women, drawn from the staff and faculty at Mary Baldwin College, “determined that a military model and, especially VMI’s adversative method, would be wholly inappropriate for educating and training most women.” * * * *
As earlier stated, generalizations about “the way women are,” estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. Notably, Virginia never asserted that VMI’s method of education suits most men. It is also revealing that Virginia accounted for its failure to make the VWIL experience “the entirely militaristic experience of VMI” on the ground that VWIL “is planned for women who do not necessarily expect to pursue military careers.” By that reasoning, VMI’s “entirely militaristic” program would be inappropriate for men in general or as a group, for “[o]nly about 15% of VMI cadets enter career military service.”
In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realties: VMI’s “implementing methodology” is not “inherently unsuitable to women;” “some women . . . do well under [the] adversative model;” “some women, at least, would want to attend [VMI] if they had the opportunity;” “some women are capable of all of the individual activities required of VMI cadets,” and “can meet the physical standards [VMI] now impose[s] on men.” It is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted, a remedy that will end their exclusion from a state-supplied educational opportunity for which they are fit, a decree that will “bar like discrimination in the future.”
B
In myriad respects other than military training, VWIL does not qualify as VMI’s equal. VWIL’s student body, faculty, course offerings, and facilities hardly match VMI’s. Nor can the VWIL graduate anticipate the benefits associated with VMI’s 157-year history, the school’s prestige, and its influential alumni network. * * * *
Virginia’s VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response to a state trial court’s 1946 ruling that, given the equal protection guarantee, African Americans could not be denied a legal education at a state facility. See Sweatt v. Painter (1950). Reluctant to admit African Americans to its flagship University of Texas Law School, the State set up a separate school for Herman Sweatt and other black law students. As originally opened, the new school had no independent faculty or library, and it lacked accreditation. Nevertheless, the state trial and appellate courts were satisfied that the new school offered Sweatt opportunities for the study of law “substantially equivalent to those offered by the State to white students at the University of Texas.” * * * * More important than the tangible features, the Court emphasized, are “those qualities which are incapable of objective measurement but which make for greatness” in a school, including “reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige.” Facing the marked differences reported in the Sweatt opinion, the Court unanimously ruled that Texas had not shown “substantial equality in the [separate] educational opportunities” the State offered. Accordingly, the Court held, the Equal Protection Clause required Texas to admit African Americans to the University of Texas Law School. In line with Sweatt, we rule here that Virginia has not shown substantial equality in the separate educational opportunities the State supports at VWIL and VMI.
C
When Virginia tendered its VWIL plan, * * * * the Court of Appeals considered whether the State could provide, with fidelity to the equal protection principle, separate and unequal educational programs for men and women.
* * * * In sum, Virginia’s remedy does not match the constitutional violation; the State has shown no “exceedingly persuasive justification” for withholding from women qualified for the experience premier training of the kind VMI affords.
VII
* * * * A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of “We the People” expanded. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the “more perfect Union.”
For the reasons stated, the initial judgment of the Court of Appeals is affirmed, the final judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Chief Justice Rehnquist, concurring in judgment.
The Court holds first that Virginia violates the Equal Protection Clause by maintaining the Virginia Military Institute’s (VMI’s) all-male admissions policy, and second that establishing the Virginia Women’s Institute for Leadership (VWIL) program does not remedy that violation. While I agree with these conclusions, I disagree with the Court’s analysis and so I write separately.
* * * * [U]nlike the majority, I would consider only evidence that postdates our decision in {Mississippi University for Women v.} Hogan, and would draw no negative inferences from the State’s actions before that time. I think that after Hogan, the State was entitled to reconsider its policy with respect to VMI, and to not have earlier justifications, or lack thereof, held against it.
Even if diversity in educational opportunity were the State’s actual objective, the State’s position would still be problematic. The difficulty with its position is that the diversity benefited only one sex; there was single-sex public education available for men at VMI, but no corresponding single-sex public education available for women. When Hogan placed Virginia on notice that VMI’s admissions policy possibly was unconstitutional, VMI could have dealt with the problem by admitting women; but its governing body felt strongly that the admission of women would have seriously harmed the institution’s educational approach. Was there something else the State could have done to avoid an equal protection violation? Since the State did nothing, we do not have to definitively answer that question.
I do not think, however, that the State’s options were as limited as the majority may imply. * * * * In the words of Grover Cleveland’s second inaugural address, the State faced a condition, not a theory. And it was a condition that had been brought about, not through defiance of decisions construing gender bias under the Equal Protection Clause, but, until the decision in Hogan, a condition which had not appeared to offend the Constitution. Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation. I do not believe the State was faced with the stark choice of either admitting women to VMI, on the one hand, or abandoning VMI and starting from scratch for both men and women, on the other.
But, as I have noted, neither the governing board of VMI nor the State took any action after 1982. If diversity in the form of single-sex, as well as coeducational, institutions of higher learning were to be available to Virginians, that diversity had to be available to women as well as to men.
* * * * It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall calibre.
If a state decides to create single-sex programs, the state would, I expect, consider the public’s interest and demand in designing curricula. And rightfully so. But the state should avoid assuming demand based on stereotypes; it must not assume a priori, without evidence, that there would be no interest in a women’s school of civil engineering, or in a men’s school of nursing.
In the end, the women’s institution Virginia proposes, VWIL, fails as a remedy, because it is distinctly inferior to the existing men’s institution and will continue to be for the foreseeable future. VWIL simply is not, in any sense, the institution that VMI is. In particular, VWIL is a program appended to a private college, not a self-standing institution; and VWIL is substantially underfunded as compared to VMI. I therefore ultimately agree with the Court that Virginia has not provided an adequate remedy.
Justice Scalia, dissenting.
Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people. As to facts: it explicitly rejects the finding that there exist “gender-based developmental differences” supporting Virginia’s restriction of the “adversative” method to only a men’s institution, and the finding that the all-male composition of the Virginia Military Institute (VMI) is essential to that institution’s character. As to precedent: it drastically revises our established standards for reviewing sex-based classifications. And as to history: it counts for nothing the long tradition, enduring down to the present, of men’s military colleges supported by both States and the Federal Government.
Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men’s military academy-so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States-the old one-takes no sides in this educational debate, I dissent.
I
I shall devote most of my analysis to evaluating the Court’s opinion on the basis of our current equal-protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: “rational basis” scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state “classifications based on race or national origin and classifications affecting fundamental rights,” Clark v. Jeter (1988). It is my position that the term “fundamental rights” should be limited to “interest[s] traditionally protected by our society,” but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider “fundamental.” We have no established criterion for “intermediate scrutiny” either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content-neutral restrictions that place an incidental burden on speech {under the First Amendment} to disabilities attendant to illegitimacy, and to discrimination on the basis of sex.
I have no problem with a system of abstract tests such as rational-basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that “equal protection” our society has always accorded in the past. But in my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede-and indeed ought to be crafted so as to reflect-those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts. More specifically, it is my view that “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.” The same applies, mutatis mutandis, to a practice asserted to be in violation of the post-Civil War Fourteenth Amendment.
The all-male constitution of VMI comes squarely within such a governing tradition. Founded by the Commonwealth of Virginia in 1839 and continuously maintained by it since, VMI has always admitted only men. And in that regard it has not been unusual. For almost all of VMI’s more than a century and a half of existence, its single-sex status reflected the uniform practice for government-supported military colleges. Another famous Southern institution, The Citadel, has existed as a state-funded school of South Carolina since 1842. And all the federal military colleges-West Point, the Naval Academy at Annapolis, and even the Air Force Academy, which was not established until 1954-admitted only males for most of their history. Their admission of women in 1976 (upon which the Court today relies), came not by court decree, but because the people, through their elected representatives, decreed a change. In other words, the tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.
And the same applies, more broadly, to single-sex education in general, which, as I shall discuss, is threatened by today’s decision with the cut-off of all state and federal support. Government-run nonmilitary educational institutions for the two sexes have until very recently also been part of our national tradition. “[It is] [c]oeducation, historically, [that] is a novel educational theory. From grade school through high school, college, and graduate and professional training, much of the Nation’s population during much of our history has been educated in sexually segregated classrooms.” Mississippi Univ. for Women v. Hogan (1982) (Powell, J., dissenting). These traditions may of course be changed by the democratic decisions of the people, as they largely have been.
Today, however, change is forced upon Virginia, and reversion to single-sex education is prohibited nationwide, not by democratic processes but by order of this Court. Even while bemoaning the sorry, bygone days of “fixed notions” concerning women’s education, the Court favors current notions so fixedly that it is willing to write them into the Constitution of the United States by application of custom-built “tests.” This is not the interpretation of a Constitution, but the creation of one.
II
To reject the Court’s disposition today, however, it is not necessary to accept my view that the Court’s made-up tests cannot displace longstanding national traditions as the primary determinant of what the Constitution means. It is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades. It is well settled, as Justice O’Connor stated some time ago for a unanimous Court, that we evaluate a statutory classification based on sex under a standard that lies “[b]etween th[e] extremes of rational basis review and strict scrutiny.” We have denominated this standard “intermediate scrutiny” and under it have inquired whether the statutory classification is “substantially related to an important governmental objective.”
Before I proceed to apply this standard to VMI, I must comment upon the manner in which the Court avoids doing so. Notwithstanding our above-described precedents and their “‘firmly established principles,’” the United States urged us to hold in this case “that strict scrutiny is the correct constitutional standard for evaluating classifications that deny opportunities to individuals based on their sex.” The Court, while making no reference to the Government’s argument, effectively accepts it.
Although the Court in two places recites the test as stated in Hogan, which asks whether the State has demonstrated “that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives,” the Court never answers the question presented in anything resembling that form. When it engages in analysis, the Court instead prefers the phrase “exceedingly persuasive justification” from Hogan. The Court’s nine invocations of that phrase, and even its fanciful description of that imponderable as “the core instruction” of the Court’s decisions in J. E. B. v. Alabama ex rel. T. B., and Hogan, would be unobjectionable if the Court acknowledged that whether a “justification” is “exceedingly persuasive” must be assessed by asking “[whether] the classification serves important governmental objectives and [whether] the discriminatory means employed are substantially related to the achievement of those objectives.” Instead, however, the Court proceeds to interpret “exceedingly persuasive justification” in a fashion that contradicts the reasoning of Hogan and our other precedents.
That is essential to the Court’s result, which can only be achieved by establishing that intermediate scrutiny is not survived if there are some women interested in attending VMI, capable of undertaking its activities, and able to meet its physical demands. * * * *
Only the amorphous “exceedingly persuasive justification” phrase, and not the standard elaboration of intermediate scrutiny, can be made to yield this conclusion that VMI’s single-sex composition is unconstitutional because there exist several women (or, one would have to conclude under the Court’s reasoning, a single woman) willing and able to undertake VMI’s program. Intermediate scrutiny has never required a least-restrictive-means analysis, but only a “substantial relation” between the classification and the state interests that it serves. Thus, in Califano v. Webster (1977) (per curiam), we upheld a congressional statute that provided higher Social Security benefits for women than for men. We reasoned that “women . . . as such have been unfairly hindered from earning as much as men,” but we did not require proof that each woman so benefited had suffered discrimination or that each disadvantaged man had not; it was sufficient that even under the former congressional scheme “women on the average received lower retirement benefits than men.” The reasoning in our other intermediate-scrutiny cases has similarly required only a substantial relation between end and means, not a perfect fit. In Rostker v. Goldberg (1981), we held that selective-service registration could constitutionally exclude women, because even “assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans.” In Metro Broadcasting, Inc. v. FCC (1990), overruled on other grounds, Adarand Constructors, Inc. v. Peña (1995), we held that a classification need not be accurate “in every case” to survive intermediate scrutiny so long as, “in the aggregate,” it advances the underlying objective. There is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.
Not content to execute a de facto abandonment of the intermediate scrutiny that has been our standard for sex-based classifications for some two decades, the Court purports to reserve the question whether, even in principle, a higher standard (i.e., strict scrutiny) should apply. “The Court has,” it says, “thus far reserved most stringent judicial scrutiny for classifications based on race or national origin . . .,” (emphasis added); and it describes our earlier cases as having done no more than decline to “equat[e] gender classifications, for all purposes, to classifications based on race or national origin” (emphasis added). The wonderful thing about these statements is that they are not actually false-just as it would not be actually false to say that “our cases have thus far reserved the ‘beyond a reasonable doubt’ standard of proof for criminal cases,” or that “we have not equated tort actions, for all purposes, to criminal prosecutions.” But the statements are misleading, insofar as they suggest that we have not already categorically held strict scrutiny to be inapplicable to sex-based classifications. And the statements are irresponsible, insofar as they are calculated to destabilize current law. Our task is to clarify the law-not to muddy the waters, and not to exact over-compliance by intimidation. The States and the Federal Government are entitled to know before they act the standard to which they will be held, rather than be compelled to guess about the outcome of Supreme Court peek-a-boo.
The Court’s intimations are particularly out of place because it is perfectly clear that, if the question of the applicable standard of review for sex-based classifications were to be regarded as an appropriate subject for reconsideration, the stronger argument would be not for elevating the standard to strict scrutiny, but for reducing it to rational-basis review. The latter certainly has a firmer foundation in our past jurisprudence: Whereas no majority of the Court has ever applied strict scrutiny in a case involving sex-based classifications, we routinely applied rational-basis review until the 1970’s. And of course normal, rational-basis review of sex-based classifications would be much more in accord with the genesis of heightened standards of judicial review, the famous footnote in United States v. Carolene Products Co. (1938), which said (intimatingly) that we did not have to inquire in the case at hand
whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
It is hard to consider women a “discrete and insular minorit[y]” unable to employ the “political processes ordinarily to be relied upon,” when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns. Moreover, a long list of legislation proves the proposition false. See, e.g., Equal Pay Act of 1963, 29 U. S. C. Section(s) 206(d); Title VII of the Civil Rights Act of 1964, 42 U. S. C. Section(s) 2000e-2; Title IX of the Education Amendments of 1972, 20 U. S. C. Section(s) 1681; Women’s Business Ownership Act of 1988, Pub. L. 100-533, 102 Stat. 2689; Violence Against Women Act of 1994, Pub. L. 103-322, Title IV, 108 Stat. 1902.
III
With this explanation of how the Court has succeeded in making its analysis seem orthodox-and indeed, if intimations are to be believed, even overly generous to VMI-I now proceed to describe how the analysis should have been conducted. The question to be answered, I repeat, is whether the exclusion of women from VMI is “substantially related to an important governmental objective.”
A
It is beyond question that Virginia has an important state interest in providing effective college education for its citizens. That single-sex instruction is an approach substantially related to that interest should be evident enough from the long and continuing history in this country of men’s and women’s colleges. But beyond that, as the Court of Appeals here stated: “That single-gender education at the college level is beneficial to both sexes is a fact established in this case.” * * * *
While no one questioned that for many students a coeducational environment was nonetheless not inappropriate, that could not obscure the demonstrated benefits of single-sex colleges. For example, the District Court stated as follows:
“One empirical study in evidence, not questioned by any expert, demonstrates that single-sex colleges provide better educational experiences than coeducational institutions. Students of both sexes become more academically involved, interact with faculty frequently, show larger increases in intellectual self-esteem and are more satisfied with practically all aspects of college experience (the sole exception is social life) compared with their counterparts in coeducational institutions. Attendance at an all-male college substantially increases the likelihood that a student will carry out career plans in law, business and college teaching, and also has a substantial positive effect on starting salaries in business. Women’s colleges increase the chances that those who attend will obtain positions of leadership, complete the baccalaureate degree, and aspire to higher degrees.”
* * * * But besides its single-sex constitution, VMI is different from other colleges in another way. It employs a “distinctive educational method,” sometimes referred to as the “adversative, or doubting, model of education.” “Physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values are the salient attributes of the VMI educational experience.” No one contends that this method is appropriate for all individuals; education is not a “one size fits all” business. Just as a State may wish to support junior colleges, vocational institutes, or a law school that emphasizes case practice instead of classroom study, so too a State’s decision to maintain within its system one school that provides the adversative method is “substantially related” to its goal of good education. Moreover, it was uncontested that “if the state were to establish a women’s VMI-type [i.e., adversative] program, the program would attract an insufficient number of participants to make the program work,” and it was found by the District Court that if Virginia were to include women in VMI, the school “would eventually find it necessary to drop the adversative system altogether.” Thus, Virginia’s options were an adversative method that excludes women or no adversative method at all.
* * * * In these circumstances, Virginia’s election to fund one public all-male institution and one on the adversative model-and to concentrate its resources in a single entity that serves both these interests in diversity-is substantially related to the State’s important educational interests.
B
The Court today has no adequate response to this clear demonstration of the conclusion produced by application of intermediate scrutiny. Rather, it relies on a series of contentions that are irrelevant or erroneous as a matter of law, foreclosed by the record in this case, or both. * * * *
The Court argues that VMI would not have to change very much if it were to admit women. The principal response to that argument is that it is irrelevant: If VMI’s single-sex status is substantially related to the government’s important educational objectives, as I have demonstrated above and as the Court refuses to discuss, that concludes the inquiry. There should be no debate in the federal judiciary over “how much” VMI would be required to change if it admitted women and whether that would constitute “too much” change.
But if such a debate were relevant, the Court would certainly be on the losing side. The District Court found as follows: “[T]he evidence establishes that key elements of the adversative VMI educational system, with its focus on barracks life, would be fundamentally altered, and the distinctive ends of the system would be thwarted, if VMI were forced to admit females and to make changes necessary to accommodate their needs and interests.” Changes that the District Court’s detailed analysis found would be required include new allowances for personal privacy in the barracks, such as locked doors and coverings on windows, which would detract from VMI’s approach of regulating minute details of student behavior, “contradict the principle that everyone is constantly subject to scrutiny by everyone else,” and impair VMI’s “total egalitarian approach” under which every student must be “treated alike”; changes in the physical training program, which would reduce “[t]he intensity and aggressiveness of the current program”; and various modifications in other respects of the adversative training program which permeates student life. As the Court of Appeals summarized it, “the record supports the district court’s findings that at least these three aspects of VMI’s program-physical training, the absence of privacy, and the adversative approach-would be materially affected by coeducation, leading to a substantial change in the egalitarian ethos that is a critical aspect of VMI’s training.”
In the face of these findings by two courts below, amply supported by the evidence, and resulting in the conclusion that VMI would be fundamentally altered if it admitted women, this Court simply pronounces that “[t]he notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved.” The point about “downgrad[ing] VMI’s stature” is a strawman; no one has made any such claim. The point about “destroy[ing] the adversative system” is simply false; the District Court not only stated that “[e]vidence supports this theory,” but specifically concluded that while “[w]ithout a doubt” VMI could assimilate women, “it is equally without a doubt that VMI’s present methods of training and education would have to be changed” by a “move away from its adversative new cadet system.” And the point about “destroy[ing] the school,” depending upon what that ambiguous phrase is intended to mean, is either false or else sets a standard much higher than VMI had to meet. It sufficed to establish, as the District Court stated, that VMI would be “significantly different” upon the admission of women and “would eventually find it necessary to drop the adversative system altogether.”
Finally, the absence of a precise “all-women’s analogue” to VMI is irrelevant. * * * *
Although there is no precise female-only analogue to VMI, Virginia has created during this litigation the Virginia Women’s Institute for Leadership (VWIL), a state-funded all-women’s program run by Mary Baldwin College. I have thus far said nothing about VWIL because it is, under our established test, irrelevant, so long as VMI’s all-male character is “substantially related” to an important state goal. But VWIL now exists, and the Court’s treatment of it shows how far-reaching today’s decision is.
C
A few words are appropriate in response to the concurrence, which finds VMI unconstitutional on a basis that is more moderate than the Court’s but only at the expense of being even more implausible. * * * *
IV
As is frequently true, the Court’s decision today will have consequences that extend far beyond the parties to the case. What I take to be the Court’s unease with these consequences, and its resulting unwillingness to acknowledge them, cannot alter the reality.
A
Under the constitutional principles announced and applied today, single-sex public education is unconstitutional. By going through the motions of applying a balancing test-asking whether the State has adduced an “exceedingly persuasive justification” for its sex-based classification-the Court creates the illusion that government officials in some future case will have a clear shot at justifying some sort of single-sex public education. * * * *
And the rationale of today’s decision is sweeping: for sex-based classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. * * * *
In any event, regardless of whether the Court’s rationale leaves some small amount of room for lawyers to argue, it ensures that single-sex public education is functionally dead. * * * *
B
There are few extant single-sex public educational programs. The potential of today’s decision for widespread disruption of existing institutions lies in its application to private single-sex education. Government support is immensely important to private educational institutions. * * * *
The issue will be not whether government assistance turns private colleges into state actors, but whether the government itself would be violating the Constitution by providing state support to single-sex colleges. * * * *
Justice Brandeis said it is “one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann (1932) (dissenting opinion). But it is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a “more perfect Union,” (a criterion only slightly more restrictive than a “more perfect world”), can impose its own favored social and economic dispositions nationwide. As today’s disposition, and others this single Term, show, this places it beyond the power of a “single courageous State,” not only to introduce novel dispositions that the Court frowns upon, but to reintroduce, or indeed even adhere to, disfavored dispositions that are centuries old. The sphere of self-government reserved to the people of the Republic is progressively narrowed.
* * * * Today’s decision does not leave VMI without honor; no court opinion can do that.
In an odd sort of way, it is precisely VMI’s attachment to such old-fashioned concepts as manly “honor” that has made it, and the system it represents, the target of those who today succeed in abolishing public single-sex education. The record contains a booklet that all first-year VMI students (the so-called “rats”) were required to keep in their possession at all times. Near the end there appears the following period-piece, entitled “The Code of a Gentleman” * * * * I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.
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C. Sex/Gender and “Difference”
Note: Feminist Theories
While one could consider the “Sex/Gender” cases litigated under the Equal Protection Clause as flowing from feminism, similar to the manner in which the race and ethnicity cases flowed from the “Civil Rights movement,” there were several strands of feminism and feminists did not always agree on which cases should be litigated and what the outcome of those cases should be. In part, this was because there were laws that were deemed protective toward women as Justice Brennan noted in Frontiero: an “attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” But feminists were also divided on the meanings of equality, sex, gender, difference, and the role of law. Further, feminists were divided along lines of class, race, ethnicity, as well as politics. This produced a complex theoretical environment, but the theoretical perspectives can be simplified into three major approaches.
Liberal feminism, sometimes called formal equality, advocates that the law should treat men and women equally. Under this view, even a law that advantages or accommodates women should be subject to the same rigor resulting in unconstitutionally.
Cultural feminism advocates that the law should recognize biological differences between men and women, and, more controversially should also recognize socio-biological differences between men and women. Under this view, a law that distinguishes between women and men might be subject to the same rigor but might be constitutional.
Radical feminism, sometimes called dominance-feminism, advocates that the law should recognize – – – and work toward eliminating – – – the subordination of women to men; and further that the law should question maleness as the default neutral standard. Under this view, a law that subordinates women should be unconstitutional; a law that works toward ending that subordination should be constitutional.
Sometimes, these three theoretical approaches all lead to the same result: the unconstitutionality of the provision in Frontiero might be an example. Other times, especially when the underlying issues involve reproductive capabilities, or the affective qualities arguably rooted in reproductive capabilities (e.g., women are more nurturing), or sex, or sexual violence (“violence against women”), the perspectives – – – which would not necessarily be advocated by “feminists” – – – support conflicting approaches and outcomes. Two controversial cases are illustrative.
In Geduldig v. Aiello, 417 U.S. 484 (1974), the Court considered an Equal Protection Clause challenge to a provision in the California Unemployment Compensation Disability program that excluded pregnancy and pregnancy-related conditions from coverage. In an opinion for the Court for Justice Stewart, reversing the lower court, the Court held the California program constitutional. In footnote 20, the Court explained:
The dissenting opinion {by Brennan, J., and joined by Douglas and Marshall, J.J.} to the contrary, this case is thus a far cry from cases like Reed v. Reed (1971), and Frontiero v. Richardson (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender, but merely removes one physical condition—pregnancy—from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed and Frontiero. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.
The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.
In Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981), at issue was whether California’s “statutory rape” law, which defined unlawful sexual intercourse as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years” violated the Equal Protection Clause. The Court upheld the statute. Writing for the plurality, Justice Rehnquist acknowledged the applicability of intermediate scrutiny standard of Craig v. Boren, but reasoned that the Equal Protection Clause does not “demand that a statute necessarily apply equally to all persons” or require “things which are different in fact . . . to be treated in law as though they were the same” and that the Court has upheld “statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” Justice Rehnquist’s opinion concluded that the state’s interest in preventing teenage pregnancy was “strong.” As to the means chosen – – – the criminalization of only males – – – it reasoned:
Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly “equalize” the deterrents on the sexes.
Concurring in the opinion, Justice Blackmun stated that “I think too that it is only fair, with respect to this particular petitioner, to point out that his partner, Sharon, appears not to have been an unwilling participant in at least the initial stages of the intimacies that took place the night of June 3, 1978.” Blackmun’s footnote to that statement included testimony by Sharon from the trial transcript that included this:
“Q. You said that he hit you?”
“A. Yeah.”
“Q. How did he hit you?”
“A. He slugged me in the face.”
“Q. With what did he slug you?”
“A. His fist.”
“Q. Where abouts in the face?”
“A. On my chin.”
“Q. As a result of that, did you have any bruises or any kind of an injury?”
“A. Yeah.”
“Q. What happened?”
“A. I had bruises.”
“The Court: Did he hit you one time or did he hit you more than once?”
“The Witness: He hit me about two or three times.”
Consider how these different feminist theoretical perspectives are implicit in the Court’s most recent sex/gender equal protection decision, Sessions v. Morales-Santana.
Sessions v. Morales-Santana
582 U.S. ___ (2017)
Justice Ginsburg delivered the opinion of the Court.
This case concerns a gender-based differential in the law governing acquisition of U. S. citizenship by a child born abroad, when one parent is a U. S. citizen, the other, a citizen of another nation. The main rule appears in 8 U. S. C. § 1401(a)(7) (1958 ed.), now § 1401(g) (2012 ed.). Applicable to married couples, § 1401(a)(7) requires a period of physical presence in the United States for the U. S.-citizen parent. The requirement, as initially prescribed, was ten years’ physical presence prior to the child’s birth, § 601(g) (1940 ed.); currently, the requirement is five years prebirth, § 1401(g) (2012 ed.). That main rule is rendered applicable to unwed U. S.-citizen fathers by § 1409(a). Congress ordered an exception, however, for unwed U. S.-citizen mothers. Contained in § 1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child’s birth.
The respondent in this case, Luis Ramón Morales-Santana, was born in the Dominican Republic when his father was just 20 days short of meeting § 1401(a)(7)’s physical-presence requirement. Opposing removal to the Dominican Republic, Morales-Santana asserts that the equal protection principle implicit in the Fifth Amendment entitles him to citizenship stature. We hold that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons “the equal protection of the laws.” Nevertheless, we cannot convert § 1409(c)’s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U. S.-citizen and one alien parent, wed or unwed. In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination.
A
We first describe in greater detail the regime Congress constructed. * * * * {omitted}
B
Respondent Luis Ramón Morales-Santana moved to the United States at age 13, and has resided in this country most of his life. Now facing deportation, he asserts U. S. citizenship at birth based on the citizenship of his biological father, José Morales, who accepted parental responsibility and included Morales-Santana in his household.
José Morales was born in Guánica, Puerto Rico, on March 19, 1900. Puerto Rico was then, as it is now, part of the United States, and José became a U. S. citizen. After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore failing to satisfy § 1401(a)(7)’s requirement of five years’ physical presence after age 14. He did so to take up employment as a builder-mechanic for a U. S. company in the then-U. S.-occupied Dominican Republic.
By 1959, José attested in a June 21, 1971 affidavit presented to the U. S. Embassy in the Dominican Republic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry. In 1962, Yrma gave birth to their child, respondent Luis Morales-Santana. While the record before us reveals little about Morales-Santana’s childhood, the Dominican archives disclose that Yrma and José married in 1970, and that José was then added to Morales-Santana’s birth certificate as his father. José also related in the same affidavit that he was then saving money “for the susten[ance] of [his] family” in anticipation of undergoing surgery in Puerto Rico, where members of his family still resided. In 1975, when Morales-Santana was 13, he moved to Puerto Rico, and by 1976, the year his father died, he was attending public school in the Bronx, a New York City borough.
C
In 2000, the Government placed Morales-Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. Morales-Santana ranked as an alien despite the many years he lived in the United States, because, at the time of his birth, his father did not satisfy the requirement of five years’ physical presence after age 14. An immigration judge rejected Morales-Santana’s claim to citizenship derived from the U. S. citizenship of his father, and ordered Morales-Santana’s removal to the Dominican Republic. In 2010, Morales-Santana moved to reopen the proceedings, asserting that the Government’s refusal to recognize that he derived citizenship from his U. S.-citizen father violated the Constitution’s equal protection guarantee. The Board of Immigration Appeals (BIA) denied the motion. The United States Court of Appeals for the Second Circuit reversed the BIA’s decision. Relying on this Court’s post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. To cure the constitutional flaw, the court further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U. S. citizen. In so ruling, the Second Circuit declined to follow the conflicting decision of the Ninth Circuit in United States v. Flores-Villar (2008). We granted certiorari in Flores-Villar, but ultimately affirmed by an equally divided Court. Flores-Villar v. United States (2011) (per curiam). Taking up Morales-Santana’s request for review, we consider the matter anew.
II
Because § 1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana’s birth and was not accorded the right an unwed U. S.-citizen mother would have to transmit citizenship to her child. Although the Government does not contend otherwise, we briefly explain why Morales-Santana may seek to vindicate his father’s right to the equal protection of the laws. * * * * Morales-Santana is thus the “obvious claimant,” the “best available proponent,” of his father’s right to equal protection.
III
Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida (1961) (women are the “center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary (1948) (States may draw “a sharp line between the sexes”). Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” J. E. B. v. Alabama ex rel. T. B. (1994); United States v. Virginia, 518 U. S. 515 –556 (1996) (state-maintained military academy may not deny admission to qualified women).
Laws granting or denying benefits “on the basis of the sex of the qualifying parent,” our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee. Califano v. Westcott, (1979) (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers); Califano v. Goldfarb (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).
Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.” Virginia.
A
The defender of legislation that differentiates on the basis of gender must show “at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Virginia (quoting Mississippi Univ. for Women v. Hogan (1982)). Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges (2015). Here, the Government has supplied no “exceedingly persuasive justification,” for § 1409(a) and (c)’s “gender-based” and “gender-biased” disparity.
1
History reveals what lurks behind § 1409. Enacted in the Nationality Act of 1940, § 1409 ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child.
Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. “[D]ominance [of] the husband,” this Court observed in 1915, “is an ancient principle of our jurisprudence.” Mackenzie v. Hare (1915). Through the early 20th century, a male citizen automatically conferred U. S. citizenship on his alien wife. A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. The family of a citizen or a lawfully admitted permanent resident enjoyed statutory exemptions from entry requirements, but only if the citizen or resident was male. And from 1790 until 1934, the foreign-born child of a married couple gained U. S. citizenship only through the father.
For unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded as the child’s natural and sole guardian. At common law, the mother, and only the mother, was “bound to maintain [a nonmarital child] as its natural guardian.” 2 J. Kent, Commentaries on American Law (8th ed. 1854). In line with that understanding, in the early 20th century, the State Department sometimes permitted unwed mothers to pass citizenship to their children, despite the absence of any statutory authority for the practice.
In the 1940 Act, Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents. The Roosevelt administration, which proposed § 1409, explained: “[T]he mother [of a nonmarital child] stands in the place of the father . . . [,] has a right to the custody and control of such a child as against the putative father, and is bound to maintain it as its natural guardian.”
This unwed-mother-as-natural-guardian notion renders § 1409’s gender-based residency rules understandable. Fearing that a foreign-born child could turn out “more alien than American in character,” the administration believed that a citizen parent with lengthy ties to the United States would counteract the influence of the alien parent. Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture.
2
For close to a half century, as earlier observed, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” In particular, we have recognized that if a “statutory objective is to exclude or ‘protect’ members of one gender” in reliance on “fixed notions concerning [that gender’s] roles and abilities,” the “objective itself is illegitimate.”
In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as § 1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, § 1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
B
In urging this Court nevertheless to reject Morales-Santana’s equal protection plea, the Government cites three decisions of this Court: Fiallo v. Bell (1977), Miller v. Albright (1998) and Nguyen v. INS (2001). None controls this case.
The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress’ “exceptionally broad power” to admit or exclude aliens. This case, however, involves no entry preference for aliens. Morales-Santana claims he is, and since birth has been, a U. S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review.
The provision challenged in Miller and Nguyen as violative of equal protection requires unwed U. S.-citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-born children in order to transmit their U. S. citizenship to those children. After Miller produced no opinion for the Court, we took up the issue anew in Nguyen. There, the Court held that imposing a paternal-acknowledgment requirement on fathers was a justifiable, easily met means of ensuring the existence of a biological parent-child relationship, which the mother establishes by giving birth. Morales-Santana’s challenge does not renew the contest over § 1409’s paternal-acknowledgment requirement (whether the current version or that in effect in 1970), and the Government does not dispute that Morales-Santana’s father, by marrying Morales-Santana’s mother, satisfied that requirement.
Unlike the paternal-acknowledgment requirement at issue in Nguyen and Miller, the physical-presence requirements now before us relate solely to the duration of the parent’s prebirth residency in the United States, not to the parent’s filial tie to the child. As the Court of Appeals observed in this case, a man needs no more time in the United States than a woman “in order to have assimilated citizenship-related values to transmit to [his]child.” And unlike Nguyen’s parental-acknowledgment requirement, § 1409(a)’s age-calibrated physical-presence requirements cannot fairly be described as “minimal.”
C
Notwithstanding § 1409(a) and (c)’s provenance in traditional notions of the way women and men are, the Government maintains that the statute serves two important objectives: (1) ensuring a connection between the child to become a citizen and the United States and (2) preventing “statelessness,” i.e., a child’s possession of no citizenship at all. Even indulging the assumption that Congress intended § 1409 to serve these interests, neither rationale survives heightened scrutiny.
1
We take up first the Government’s assertion that § 1409(a) and (c)’s gender-based differential ensures that a child born abroad has a connection to the United States of sufficient strength to warrant conferral of citizenship at birth. The Government does not contend, nor could it, that unmarried men take more time to absorb U. S. values than unmarried women do. Instead, it presents a novel argument, one it did not advance in Flores-Villar.
An unwed mother, the Government urges, is the child’s only “legally recognized” parent at the time of childbirth. An unwed citizen father enters the scene later, as a second parent. A longer physical connection to the United States is warranted for the unwed father, the Government maintains, because of the “competing national influence” of the alien mother. Congress, the Government suggests, designed the statute to bracket an unwed U. S.-citizen mother with a married couple in which both parents are U. S. citizens, and to align an unwed U. S.-citizen father with a married couple, one spouse a citizen, the other, an alien.
Underlying this apparent design is the assumption that the alien father of a nonmarital child born abroad to a U. S.-citizen mother will not accept parental responsibility. For an actual affiliation between alien father and nonmarital child would create the “competing national influence” that, according to the Government, justifies imposing on unwed U. S.-citizen fathers, but not unwed U. S.-citizen mothers, lengthy physical-presence requirements. Hardly gender neutral, that assumption conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children. Lump characterization of that kind, however, no longer passes equal protection inspection.
Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end. The scheme permits the transmission of citizenship to children who have no tie to the United States so long as their mother was a U. S. citizen continuously present in the United States for one year at any point in her life prior to the child’s birth. The transmission holds even if the mother marries the child’s alien father immediately after the child’s birth and never returns with the child to the United States. At the same time, the legislation precludes citizenship transmission by a U. S.-citizen father who falls a few days short of meeting § 1401(a)(7)’s longer physical-presence requirements, even if the father acknowledges paternity on the day of the child’s birth and raises the child in the United States. One cannot see in this driven-by-gender scheme the close means-end fit required to survive heightened scrutiny.
2
The Government maintains that Congress established the gender-based residency differential in § 1409(a) and (c) to reduce the risk that a foreign-born child of a U. S. citizen would be born stateless. This risk, according to the Government, was substantially greater for the foreign-born child of an unwed U. S.-citizen mother than it was for the foreign-born child of an unwed U. S.-citizen father. But there is little reason to believe that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed mothers.
As the Court of Appeals pointed out, with one exception, nothing in the congressional hearings and reports on the 1940 and 1952 Acts “refer[s] to the problem of statelessness for children born abroad.” Reducing the incidence of statelessness was the express goal of other sections of the 1940 Act. The justification for § 1409’s gender-based dichotomy, however, was not the child’s plight, it was the mother’s role as the “natural guardian” of a nonmarital child. It will not do to “hypothesiz[e] or inven[t]” governmental purposes for gender classifications “post hoc in response to litigation.” Virginia.
Infecting the Government’s risk-of-statelessness argument is an assumption without foundation. “[F]oreign laws that would put the child of the U. S.-citizen mother at risk of statelessness (by not providing for the child to acquire the father’s citizenship at birth),” the Government asserts, “would protect the child of the U. S.-citizen father against statelessness by providing that the child would take his mother’s citizenship.” The Government, however, neglected to expose this supposed “protection” to a reality check. Had it done so, it would have recognized the formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child.
Experts who have studied the issue report that, at the time relevant here, in “at least thirty countries,” citizen mothers generally could not transmit their citizenship to nonmarital children born within the mother’s country. “[A]s many as forty-five countries,” they further report, “did not permit their female citizens to assign nationality to a nonmarital child born outside the subject country with a foreign father.” In still other countries, they also observed, there was no legislation in point, leaving the nationality of nonmarital children uncertain. Taking account of the foreign laws actually in force, these experts concluded, “the risk of parenting stateless children abroad was, as of [1940 and 1952], and remains today, substantial for unmarried U. S. fathers, a risk perhaps greater than that for unmarried U. S. mothers.” One can hardly characterize as gender neutral a scheme allegedly attending to the risk of statelessness for children of unwed U. S.-citizen mothers while ignoring the same risk for children of unwed U. S.-citizen fathers.
In 2014, the United Nations High Commissioner for Refugees (UNHCR) undertook a ten-year project to eliminate statelessness by 2024. Cognizant that discrimination against either mothers or fathers in citizenship and nationality laws is a major cause of statelessness, the Commissioner has made a key component of its project the elimination of gender discrimination in such laws. In this light, we cannot countenance risk of statelessness as a reason to uphold, rather than strike out, differential treatment of unmarried women and men with regard to transmission of citizenship to their children.
In sum, the Government has advanced no “exceedingly persuasive” justification for § 1409(a) and (c)’s gender-specific residency and age criteria. Those disparate criteria, we hold, cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens.
IV
While the equal protection infirmity in retaining a longer physical-presence requirement for unwed fathers than for unwed mothers is clear, this Court is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term § 1409(c) reserves for unwed mothers.
There are “two remedial alternatives,” our decisions instruct, when a statute benefits one class (in this case, unwed mothers and their children), as § 1409(c) does, and excludes another from the benefit (here, unwed fathers and their children). “[A] court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” “[W]hen the ‘right invoked is that to equal treatment,’ the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” “How equality is accomplished . . . is a matter on which the Constitution is silent.” The choice between these outcomes is governed by the legislature’s intent, as revealed by the statute at hand.
Ordinarily, we have reiterated, “extension, rather than nullification, is the proper course.” Illustratively, in a series of cases involving federal financial assistance benefits, the Court struck discriminatory exceptions denying benefits to discrete groups, which meant benefits previously denied were extended. See e.g., * * * * Department of Agriculture v. Moreno (1973) (food stamps); Frontiero (plurality opinion) (military spousal benefits). Here, however, the discriminatory exception consists of favorable treatment for a discrete group (a shorter physical-presence requirement for unwed U. S.-citizen mothers giving birth abroad). Following the same approach as in those benefits cases—striking the discriminatory exception—leads here to extending the general rule of longer physical-presence requirements to cover the previously favored group. * * * *
The residual policy here, the longer physical-presence requirement stated in §§ 1401(a)(7) and 1409, evidences Congress’ recognition of “the importance of residence in this country as the talisman of dedicated attachment.” And the potential for “disruption of the statutory scheme” is large. For if § 1409(c)’s one-year dispensation were extended to unwed citizen fathers, would it not be irrational to retain the longer term when the U. S.-citizen parent is married? Disadvantageous treatment of marital children in comparison to nonmarital children is scarcely a purpose one can sensibly attribute to Congress.
Although extension of benefits is customary in federal benefit cases, all indicators in this case point in the opposite direction. Put to the choice, Congress, we believe, would have abrogated § 1409(c)’s exception, preferring preservation of the general rule.
V
The gender-based distinction infecting §§ 1401(a)(7) and 1409(a) and (c), we hold, violates the equal protection principle, as the Court of Appeals correctly ruled. For the reasons stated, however, we must adopt the remedial course Congress likely would have chosen “had it been apprised of the constitutional infirmity.” Although the preferred rule in the typical case is to extend favorable treatment, this is hardly the typical case. Extension here would render the special treatment Congress prescribed in § 1409(c), the one-year physical-presence requirement for U. S.-citizen mothers, the general rule, no longer an exception. Section 1401(a)(7)’s longer physical-presence requirement, applicable to a substantial majority of children born abroad to one U. S.-citizen parent and one foreign-citizen parent, therefore, must hold sway. Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, § 1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.
The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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Notes
1. Be prepared to articulate the standard of review for Equal Protection classifications based on sex/gender including the United States v. Virginia (VMI) language.
2. In Morales-Santana, the Court agreed with the challenger’s claim that the statute is unconstitutional and yet the challenger does not prevail. Why not?
3. Reconsidering the standard of review for sex/gender and anticipating other classifications, review Carolene Products footnote 4 and the evolving criteria for determining whether or not a classification is suspect (or quasi-suspect) as a prerequisite to determining the applicable standard of review. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.06%3A_CHAPTER_FIVE-_Nonracial_Classifications_and_Equal_Protection__Part_1.txt |
III. Other Classifications
A. Illegitimacy, Age, and Language
Note: Illegitimacy
In Sessions v. Morales-Santana, there is also an issue of “illegitimacy,” or “non-marital children,” the status of being born to an unmarried woman. At times, such classifications can also be sex/gender classifications, as in Morales-Santana, because the classification also involves treating unmarried mothers differently than unmarried fathers with regard to the child. Indeed, there is a constellation of cases often known as the “unmarried father” cases which involve parental rights and obligations of fathers. For example, in Lehr v. Robertson, 463 U.S. 248 (1983), the Court held that an unmarried biological father who did not acknowledge the child was not denied equal protection (or due process) when the mother’s subsequent husband adopted the child.
Other cases involve a claim by an “illegitimate” child more directly. For example, in Levy v. Louisiana, 391 U.S. 68 (1968), the Court in a very brief opinion held unconstitutional the exclusion of illegitimate children from the right to bring an action for their mother’s wrongful death. The state courts had interpreted “child” in the wrongful death statute to mean “legitimate child,” and the denial to illegitimate children of “the right to recover” justified as “based on morals and general welfare because it discourages bringing children into the world out of wedlock.” Justice Douglas, writing for the Court, first emphasized that “illegitimate” children are persons within the Equal Protection Clause, then wrote:
Why should the illegitimate child be denied rights merely because of his birth out of wedlock? He certainly is subject to all the responsibilities of a citizen, including the payment of taxes and conscription under the Selective Service Act. How, under our constitutional regime, can he be denied correlative rights which other citizens enjoy?
Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death, they suffered wrong in the sense that any dependent would.
We conclude that it is invidious to discriminate against them when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done the mother.
{footnotes omitted}
In Clark v. Jeter, 486 U.S. 456 (1988), in an opinion by Justice O’Connor, the Court explicitly stated that classifications based on illegitimacy generally merit intermediate scrutiny:
In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. Classifications based on race or national origin and classifications affecting fundamental rights are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.
To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective. Consequently, we have invalidated classifications that burden illegitimate children for the sake of punishing the illicit relations of their parents, because “visiting this condemnation on the head of an infant is illogical and unjust.”
Note: Age
Generally, the Court has decided that age classifications merit only rational basis review.
Regarding younger people, the Court in City of Dallas v. Stanglin, 490 U.S. 19 (1989), applied rational basis review to uphold the constitutionality of an ordinance that licensed a class of dancehalls that restricted admission to persons between the ages of 14 and 18 and limited their hours of operation. Without much analysis, the opinion by Chief Justice Rehnquist for the Court assumed that teenagers were not a suspect class (the major issue was whether there was a First Amendment right of association). Protecting the 14-18 year olds from “the corrupting influences of older teenagers and young adults,” was a legitimate interest and the means chosen was sufficiently rational.
As to older people, the Court in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), upheld a mandatory retirement age of 50 for police officers. In its per curiam opinion considering what level of scrutiny should apply, the Court stated:
Nor does the class of uniformed state police officers over 50 constitute a suspect class for purposes of equal protection analysis. {We have} observed that a suspect class is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”
While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a “history of purposeful unequal treatment” or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The class subject to the compulsory retirement feature of the Massachusetts statute consists of uniformed state police officers over the age of 50. It cannot be said to discriminate only against the elderly. Rather, it draws the line at a certain age in middle life. But even old age does not define a “discrete and insular” group, United States v. Carolene Products Co., n. 4 (1938), in need of “extraordinary protection from the majoritarian political process.” Instead, it marks a stage that each of us will reach if we live out our normal span. Even if the statute could be said to impose a penalty upon a class defined as the aged, it would not impose a distinction sufficiently akin to those classifications that we have found suspect to call for strict judicial scrutiny.
Under the circumstances, it is unnecessary to subject the State’s resolution of competing interests in this case to the degree of critical examination that our cases under the Equal Protection Clause recently have characterized as “strict judicial scrutiny.”
Applying rational basis, the Court found that the statute “clearly meets” the standard. The Court articulated the government interest as seeking to “protect the public by assuring physical preparedness of its uniformed police.” It found that the “mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age.” The Court did acknowledge that individualized testing might be a better method, but that did not mean it was irrational. The Court added: “We do not make light of the substantial economic and psychological effects premature and compulsory retirement can have on an individual; nor do we denigrate the ability of elderly citizens to continue to contribute to society. The problems of retirement have been well documented and are beyond serious dispute.”
Hernandez v. New York
500 U.S. 352 (1991)
Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White and Justice Souter join.
Petitioner Dionisio Hernandez asks us to review the New York state courts’ rejection of his claim that the prosecutor in his criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity. If true, the prosecutor’s discriminatory use of peremptory strikes would violate the Equal Protection Clause as interpreted by our decision in Batson v. Kentucky (1986). We must determine whether the prosecutor offered a race-neutral basis for challenging Latino potential jurors and, if so, whether the state courts’ decision to accept the prosecutor’s explanation should be sustained.
Petitioner and respondent both use the term “Latino” in their briefs to this Court. The amicus brief employs instead the term “Hispanic,” and the parties referred to the excluded jurors by that term in the trial court. Both words appear in the state-court opinions. No attempt has been made at a distinction by the parties, and we make no attempt to distinguish the terms in this opinion. We will refer to the excluded venirepersons as Latinos in deference to the terminology preferred by the parties before the Court.
I
The case comes to us on direct review of petitioner’s convictions on two counts of attempted murder and two counts of criminal possession of a weapon. On a Brooklyn street, petitioner fired several shots at Charlene Calloway and her mother, Ada Saline. Calloway suffered three gunshot wounds. Petitioner missed Saline, and instead hit two men in a nearby restaurant. The victims survived the incident.
The trial was held in the New York Supreme Court, Kings County. We concern ourselves here only with the jury selection process and the proper application of Batson, which had been handed down before the trial took place. After 63 potential jurors had been questioned and 9 had been empaneled, defense counsel objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the Latino venirepersons challenged by the prosecutor had brothers who had been convicted of crimes, and the brother of one of those potential jurors was being prosecuted by the same District Attorney’s office for a probation violation. Petitioner does not press his Batson claim with respect to those prospective jurors, and we concentrate on the other two excluded individuals.
After petitioner raised his Batson objection, the prosecutor did not wait for a ruling on whether petitioner had established a prima facie case of racial discrimination. Instead, the prosecutor volunteered his reasons for striking the jurors in question. He explained:
“Your honor, my reason for rejecting the – these two jurors – I’m not certain as to whether they’re Hispanics. I didn’t notice how many Hispanics had been called to the panel, but my reason for rejecting these two is I feel very uncertain that they would be able to listen and follow the interpreter.”
After an interruption by defense counsel, the prosecutor continued:
“We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses, and I didn’t feel, when I asked them whether or not they could accept the interpreter’s translation of it, I didn’t feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that, in a case where the interpreter will be for the main witnesses, they would have an undue impact upon the jury.”
Defense counsel moved for a mistrial “based on the conduct of the District Attorney,” and the prosecutor requested a chance to call a supervisor to the courtroom before the judge’s ruling.
Following a recess, defense counsel renewed his motion, which the trial court denied. Discussion of the objection continued, however, and the prosecutor explained that he would have no motive to exclude Latinos from the jury:
“[T]his case, involves four complainants. Each of the complainants is Hispanic. All my witnesses, that is, civilian witnesses, are going to be Hispanic. I have absolutely no reason – there’s no reason for me to want to exclude Hispanics, because all the parties involved are Hispanic, and I certainly would have no reason to do that.”
After further interchange among the judge and attorneys, the trial court again rejected petitioner’s claim.
On appeal, the New York Supreme Court, Appellate Division, noted that, though the ethnicity of one challenged bilingual juror remained uncertain, the prosecutor had challenged the only three prospective jurors with definite Hispanic surnames. The court ruled that this fact made out a prima facie showing of discrimination. The court affirmed the trial court’s rejection of petitioner’s Batson claim, however, on the ground that the prosecutor had offered race-neutral explanations for the peremptory strikes sufficient to rebut petitioner’s prima facie case.
The New York Court of Appeals also affirmed the judgment, holding that the prosecutor had offered a legitimate basis for challenging the individuals in question and deferring to the factual findings of the lower New York courts. Two judges dissented, concluding that, on this record, analyzed in the light of standards they would adopt as a matter of state constitutional law, the prosecutor’s exclusion of the bilingual potential jurors should not have been permitted. We granted certiorari and now affirm.
II
In Batson, we outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. * * * *
A.
{discussion of procedural posture omitted}
B
Petitioner contends that the reasons given by the prosecutor for challenging the two bilingual jurors were not race neutral. In evaluating the race neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. * * * *
A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.
Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a consequence, it violates the Equal Protection Clause to exercise a peremptory challenge on the ground that a Latino potential juror speaks Spanish. He points to the high correlation between Spanish-language ability and ethnicity in New York, where the case was tried. We need not address that argument here, for the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony.
The prosecutor here offered a race-neutral basis for these peremptory strikes. As explained by the prosecutor, the challenges rested neither on the intention to exclude Latino or bilingual jurors, nor on stereotypical assumptions about Latinos or bilinguals. The prosecutor’s articulated basis for these challenges divided potential jurors into two classes: those whose conduct during voir dire would persuade him they might have difficulty in accepting the translator’s rendition of Spanish-language testimony and those potential jurors who gave no such reason for doubt. Each category would include both Latinos and non-Latinos. While the prosecutor’s criterion might well result in the disproportionate removal of prospective Latino jurors, that disproportionate impact does not turn the prosecutor’s actions into a per se violation of the Equal Protection Clause.
Petitioner contends that despite the prosecutor’s focus on the individual responses of these jurors, his reason for the peremptory strikes has the effect of a pure, language-based reason, because “[a]ny honest bilingual juror would have answered the prosecutor in the exact same way.” Petitioner asserts that a bilingual juror would hesitate in answering questions like those asked by the judge and prosecutor due to the difficulty of ignoring the actual Spanish-language testimony. In his view, no more can be expected than a commitment by a prospective juror to try to follow the interpreter’s translation. * * * *
C.
{discussion of trial judge’s findings and standard on review omitted}
D.
Language permits an individual to express both a personal identity and membership in a community, and those who share a common language may interact in ways more intimate than those without this bond. Bilinguals, in a sense, inhabit two communities, and serve to bring them closer. Indeed, some scholarly comment suggests that people proficient in two languages may not at times think in one language to the exclusion of the other. The analogy is that of a high-hurdler, who combines the ability to sprint and to jump to accomplish a third feat with characteristics of its own, rather than two separate functions. Grosjean, The Bilingual as a Competent but Specific Speaker-Hearer, 6 J. Multilingual & Multicultural Development 467 (1985). This is not to say that the cognitive processes and reactions of those who speak two languages are susceptible of easy generalization, for even the term “bilingual” does not describe a uniform category. It is a simple word for a more complex phenomenon with many distinct categories and subdivisions. Sanchez, Our Linguistic and Social Context, in Spanish in the United States 9, 12 (J. Amastae & L. Elias-Olivares eds. 1982); Dodson, Second Language Acquisition and Bilingual Development: A Theoretical Framework, 6 J. Multilingual & Multicultural Development 325, 326-327 (1985).
Our decision today does not imply that exclusion of bilinguals from jury service is wise, or even that it is constitutional in all cases. It is a harsh paradox that one may become proficient enough in English to participate in trial, see, e.g., 28 U.S.C. 1865(b)(2), (3) (English-language ability required for federal jury service), only to encounter disqualification because he knows a second language as well. As the Court observed in a somewhat related context: “Mere knowledge of [a foreign] language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable.” Meyer v. Nebraska (1923).
Just as shared language can serve to foster community, language differences can be a source of division. Language elicits a response from others, ranging from admiration and respect, to distance and alienation, to ridicule and scorn. Reactions of the latter type all too often result from or initiate racial hostility. In holding that a race-neutral reason for a peremptory challenge means a reason other than race, we do not resolve the more difficult question of the breadth with which the concept of race should be defined for equal protection purposes. We would face a quite different case if the prosecutor had justified his peremptory challenges with the explanation that he did not want Spanish-speaking jurors. It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis. Cf. Yu Cong Eng v. Trinidad (1926) (law prohibiting keeping business records in other than specified languages violated equal protection rights of Chinese businessmen); Meyer v. Nebraska (striking down law prohibiting grade schools from teaching languages other than English). And, as we make clear, a policy of striking all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination. But that case is not before us.
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Notes
1. Hernandez v. New York implicitly rejects the argument that Spanish-speakers constitute a racial (or national origin) classification and implicitly rejects the argument that Spanish-speakers would be a group that would merit other than rational basis scrutiny. How would you argue otherwise? Does this apply to all language groups in the United States?
2. In an earlier case, Hernandez v. Texas, 347 U.S. 475 (1974), the Court held that the “systematic exclusion” of “Mexicans” from the juror pool violated the Equal Protection Clause.
Although 14% of the county population were persons with “Mexican or Latin American surnames,” the state stipulated that “for the last twenty-five years, there is no record of any person with a Mexican or Latin American name having served on a jury commission, grand jury or petit jury in Jackson County.” Writing for the Court, Chief Justice Warren relied on Strauder v. West Virginia (1880) and stated:
The State of Texas would have us hold that there are only two classes—white and Negro—within the contemplation of the Fourteenth Amendment. The decisions of this Court do not support that view. * * * * Throughout our history, differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and, from time to time, other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a “two-class theory”—that is, based upon differences between “white” and Negro.
* * * * The petitioner’s initial burden in substantiating his charge of group discrimination was to prove that persons of Mexican descent constitute a separate class in Jackson County, distinct from “whites.” One method by which this may be demonstrated is by showing the attitude of the community. Here, the testimony of responsible officials and citizens contained the admission that residents of the community distinguished between “white” and “Mexican.” The participation of persons of Mexican descent in business and community groups was shown to be slight. Until very recent times, children of Mexican descent were required to attend a segregated school for the first four grades. At least one restaurant in town prominently displayed a sign announcing “No Mexicans Served.” On the courthouse grounds at the time of the hearing, there were two men’s toilets, one unmarked, and the other marked “Colored Men” and “Hombres Aqui” (“Men Here”). No substantial evidence was offered to rebut the logical inference to be drawn from these facts, and it must be concluded that petitioner succeeded in his proof.
B. Classifications Based on Animus
United States Dept. of Agriculture v. Moreno
413 U.S. 528 (1973)
Mr. Justice Brennan delivered the opinion of the Court.
This case requires us to consider the constitutionality of § 3(e) of the Food Stamp Act of 1964, 7 U.S.C. 2012 (e), as amended in 1971, which, with certain exceptions, excludes from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. In practical effect, § 3(e) creates two classes of persons for food stamp purposes: one class is composed of those individuals who live in households all of whose members are related to one another, and the other class consists of those individuals who live in households containing one or more members who are unrelated to the rest. The latter class of persons is denied federal food assistance. A three-judge District Court for the District of Columbia held this classification invalid as violative of the Due Process Clause of the Fifth Amendment. We noted probable jurisdiction. We affirm.
I
The federal food stamp program was established in 1964 in an effort to alleviate hunger and malnutrition among the more needy segments of our society. Eligibility for participation in the program is determined on a household rather than an individual basis. An eligible household purchases sufficient food stamps to provide that household with a nutritionally adequate diet. The household pays for the stamps at a reduced rate based upon its size and cumulative income. The food stamps are then used to purchase food at retail stores, and the Government redeems the stamps at face value, thereby paying the difference between the actual cost of the food and the amount paid by the household for the stamps.
As initially enacted, § 3(e) defined a “household” as “a group of related or non-related individuals, who are not residents of an institution or boarding house, but are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common.” In January 1971, however, Congress redefined the term “household” so as to include only groups of related individuals. Pursuant to this amendment, the Secretary of Agriculture promulgated regulations rendering ineligible for participation in the program any “household” whose members are not “all related to each other.”
Appellees in this case consist of several groups of individuals who allege that, although they satisfy the income eligibility requirements for federal food assistance, they have nevertheless been excluded from the program solely because the persons in each group are not “all related to each other.” Appellee Jacinta Moreno, for example, is a 56-year-old diabetic who lives with Ermina Sanchez and the latter’s three children. They share common living expenses, and Mrs. Sanchez helps to care for appellee. Appellee’s monthly income, derived from public assistance, is \$75; Mrs. Sanchez receives \$133 per month from public assistance. The household pays \$135 per month for rent, gas, and electricity, of which appellee pays \$50. Appellee spends \$10 per month for transportation to a hospital for regular visits, and \$5 per month for laundry. That leaves her \$10 per month for food and other necessities. Despite her poverty, appellee has been denied federal food assistance solely because she is unrelated to the other members of her household. Moreover, although Mrs. Sanchez and her three children were permitted to purchase \$108 worth of food stamps per month for \$18, their participation in the program will be terminated if appellee Moreno continues to live with them. * * * *
These and two other groups of appellees instituted a class action against the Department of Agriculture, its Secretary, and two other departmental officials, seeking declaratory and injunctive relief against the enforcement of the 1971 amendment of § 3(e) and its implementing regulations. In essence, appellees contend, and the District Court held, that the “unrelated person” provision of § 3(e) creates an irrational classification in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. We agree.
II
Under traditional equal protection analysis, a legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest. See Dandridge v. Williams (1970). The purposes of the Food Stamp Act were expressly set forth in the congressional “declaration of policy”:
“It is hereby declared to be the policy of Congress . . . to safeguard the health and well-being of the Nation’s population and raise levels of nutrition among low-income households. The Congress hereby finds that the limited food purchasing power of low-income households contributes to hunger and malnutrition among members of such households. The Congress further finds that increased utilization of food in establishing and maintaining adequate national levels of nutrition will promote the distribution in a beneficial manner of our agricultural abundances and will strengthen our agricultural economy, as well as result in more orderly marketing and distribution of food. To alleviate such hunger and malnutrition, a food stamp program is herein authorized which will permit low-income households to purchase a nutritionally adequate diet through normal channels of trade.”
The challenged statutory classification (households of related persons versus households containing one or more unrelated persons) is clearly irrelevant to the stated purposes of the Act. As the District Court recognized, “[t]he relationships among persons constituting one economic unit and sharing cooking facilities have nothing to do with their abilities to stimulate the agricultural economy by purchasing farm surpluses, or with their personal nutritional requirements.”
Thus, if it is to be sustained, the challenged classification must rationally further some legitimate governmental interest other than those specifically stated in the congressional “declaration of policy.” Regrettably, there is little legislative history to illuminate the purposes of the 1971 amendment of § 3(e). The legislative history that does exist, however, indicates that that amendment was intended to prevent so-called “hippies” and “hippie communes” from participating in the food stamp program. See H. R. Conf. Rep. No. 91-1793, p. 8; 116 Cong. Rec. 44439 (1970) (Sen. Holland). The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, “[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the 1971 amendment.”
Although apparently conceding this point, the Government maintains that the challenged classification should nevertheless be upheld as rationally related to the clearly legitimate governmental interest in minimizing fraud in the administration of the food stamp program. In essence, the Government contends that, in adopting the 1971 amendment, Congress might rationally have thought (1) that households with one or more unrelated members are more likely than “fully related” households to contain individuals who abuse the program by fraudulently failing to report sources of income or by voluntarily remaining poor; and (2) that such households are “relatively unstable,” thereby increasing the difficulty of detecting such abuses. But even if we were to accept as rational the Government’s wholly unsubstantiated assumptions concerning the differences between “related” and “unrelated” households, we still could not agree with the Government’s conclusion that the denial of essential federal food assistance to all otherwise eligible households containing unrelated members constitutes a rational effort to deal with these concerns.
At the outset, it is important to note that the Food Stamp Act itself contains provisions, wholly independent of § 3(e) aimed specifically at the problems of fraud and of the voluntarily poor. For example, with certain exceptions, § 5(c) of the Act, renders ineligible for assistance any household containing “an able-bodied adult person between the ages of eighteen and sixty-five” who fails to register for, and accept, offered employment. Similarly, §§ 14(b) and (c) specifically impose strict criminal penalties upon any individual who obtains or uses food stamps fraudulently. The existence of these provisions necessarily casts considerable doubt upon the proposition that the 1971 amendment could rationally have been intended to prevent those very same abuses.
Moreover, in practical effect, the challenged classification simply does not operate so as rationally to further the prevention of fraud. * * * * Thus, in practical operation, the 1971 amendment excludes from participation in the food stamp program, not those persons who are “likely to abuse the program” but, rather, only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. Traditional equal protection analysis does not require that every classification be drawn with precise “‘mathematical nicety.’” Dandridge v. Williams. But the classification here in issue is not only “imprecise,” it is wholly without any rational basis. The judgment of the District Court holding the “unrelated person” provision invalid under the Due Process Clause of the Fifth Amendment is therefore
Affirmed.
Mr. Justice Rehnquist, with whom The Chief Justice concurs, dissenting.
* * * * The Court’s opinion would make a very persuasive congressional committee report arguing against the adoption of the limitation in question. Undoubtedly, Congress attacked the problem with a rather blunt instrument and, just as undoubtedly, persuasive arguments may be made that what we conceive to be its purpose will not be significantly advanced by the enactment of the limitation. But questions such as this are for Congress, rather than for this Court; our role is limited to the determination of whether there is any rational basis on which Congress could decide that public funds made available under the food stamp program should not go to a household containing an individual who is unrelated to any other member of the household.
I do not believe that asserted congressional concern with the fraudulent use of food stamps is, when interpreted in the light most favorable to sustaining the limitation, quite as irrational as the Court seems to believe. * * * *
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City of Cleburne v. Cleburne Living Center
473 U.S. 432 (1985)
Justice White delivered the opinion of the Court.
A Texas city denied a special use permit for the operation of a group home for the mentally retarded, acting pursuant to a municipal zoning ordinance requiring permits for such homes. The Court of Appeals for the Fifth Circuit held that mental retardation is a “quasi-suspect” classification and that the ordinance violated the Equal Protection Clause because it did not substantially further an important governmental purpose. We hold that a lesser standard of scrutiny is appropriate, but conclude that under that standard the ordinance is invalid as applied in this case.
I
In July 1980, respondent Jan Hannah purchased a building at 201 Featherston Street in the city of Cleburne, Texas, with the intention of leasing it to Cleburne Living Center, Inc. (CLC), for the operation of a group home for the mentally retarded. It was anticipated that the home would house 13 retarded men and women, who would be under the constant supervision of CLC staff members. The house had four bedrooms and two baths, with a half bath to be added. CLC planned to comply with all applicable state and federal regulations.
The city informed CLC that a special use permit would be required for the operation of a group home at the site, and CLC accordingly submitted a permit application. In response to a subsequent inquiry from CLC, the city explained that under the zoning regulations applicable to the site, a special use permit, renewable annually, was required for the construction of “[h]ospitals for the insane or feeble-minded, or alcoholic [sic] or drug addicts, or penal or correctional institutions.” The city had determined that the proposed group home should be classified as a “hospital for the feeble-minded.” After holding a public hearing on CLC’s application, the City Council voted 3 to 1 to deny a special use permit.
CLC then filed suit in Federal District Court against the city and a number of its officials, alleging, inter alia, that the zoning ordinance was invalid on its face and as applied because it discriminated against the mentally retarded in violation of the equal protection rights of CLC and its potential residents. The District Court found that “[i]f the potential residents of the Featherston Street home were not mentally retarded, but the home was the same in all other respects, its use would be permitted under the city’s zoning ordinance,” and that the City Council’s decision “was motivated primarily by the fact that the residents of the home would be persons who are mentally retarded.” Even so, the District Court held the ordinance and its application constitutional. Concluding that no fundamental right was implicated and that mental retardation was neither a suspect nor a quasi-suspect classification, the court employed the minimum level of judicial scrutiny applicable to equal protection claims. The court deemed the ordinance, as written and applied, to be rationally related to the city’s legitimate interests in “the legal responsibility of CLC and its residents, . . . the safety and fears of residents in the adjoining neighborhood,” and the number of people to be housed in the home.
The Court of Appeals for the Fifth Circuit reversed, determining that mental retardation was a quasi-suspect classification and that it should assess the validity of the ordinance under intermediate-level scrutiny. Because mental retardation was in fact relevant to many legislative actions, strict scrutiny was not appropriate. But in light of the history of “unfair and often grotesque mistreatment” of the retarded, discrimination against them was “likely to reflect deep-seated prejudice.” In addition, the mentally retarded lacked political power, and their condition was immutable. The court considered heightened scrutiny to be particularly appropriate in this case, because the city’s ordinance withheld a benefit which, although not fundamental, was very important to the mentally retarded. Without group homes, the court stated, the retarded could never hope to integrate themselves into the community. Applying the test that it considered appropriate, the court held that the ordinance was invalid on its face because it did not substantially further any important governmental interests. The Court of Appeals went on to hold that the ordinance was also invalid as applied. Rehearing en banc was denied with six judges dissenting in an opinion urging en banc consideration of the panel’s adoption of a heightened standard of review. We granted certiorari.
II
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike. * * * * The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.
The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy – a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. * * * *
Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment. “[W]hat differentiates sex from such nonsuspect statutes as intelligence or physical disability . . . is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson (1973) (plurality opinion). Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women. A gender classification fails unless it is substantially related to a sufficiently important governmental interest. Mississippi University for Women v. Hogan (1982); Craig v. Boren (1976). Because illegitimacy is beyond the individual’s control and bears “no relation to the individual’s ability to participate in and contribute to society,” official discriminations resting on that characteristic are also subject to somewhat heightened review. Those restrictions “will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest.”
We have declined, however, to extend heightened review to differential treatment based on age: * * * * Massachusetts Board of Retirement v. Murgia (1976). The lesson of Murgia is that where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.
III
Against this background, we conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation. First, it is undeniable, and it is not argued otherwise here, that those who are mentally retarded have a reduced ability to cope with and function in the everyday world. Nor are they all cut from the same pattern: as the testimony in this record indicates, they range from those whose disability is not immediately evident to those who must be constantly cared for. They are thus different, immutably so, in relevant respects, and the States’ interest in dealing with and providing for them is plainly a legitimate one. How this large and diversified group is to be treated under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary. Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and we doubt that the predicate for such judicial oversight is present where the classification deals with mental retardation.
Second, the distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary. Thus, the Federal Government has not only outlawed discrimination against the mentally retarded in federally funded programs, see 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, but it has also provided the retarded with the right to receive “appropriate treatment, services, and habilitation” in a setting that is “least restrictive of [their] personal liberty.” Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. 6010(1), (2). In addition, the Government has conditioned federal education funds on a State’s assurance that retarded children will enjoy an education that, “to the maximum extent appropriate,” is integrated with that of nonmentally retarded children. Education of the Handicapped Act, 20 U.S.C. 1412(5) (B). The Government has also facilitated the hiring of the mentally retarded into the federal civil service by exempting them from the requirement of competitive examination. See 5 CFR 213.3102(t) (1984). The State of Texas has similarly enacted legislation that acknowledges the special status of the mentally retarded by conferring certain rights upon them, such as “the right to live in the least restrictive setting appropriate to [their] individual needs and abilities,” including “the right to live . . . in a group home.” Mentally Retarded Persons Act of 1977, Tex. Rev. Civ. Stat. Ann., Art. 5547-300, 7 (Vernon Supp. 1985).
Such legislation thus singling out the retarded for special treatment reflects the real and undeniable differences between the retarded and others. That a civilized and decent society expects and approves such legislation indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable. It may be, as CLC contends, that legislation designed to benefit, rather than disadvantage, the retarded would generally withstand examination under a test of heightened scrutiny. The relevant inquiry, however, is whether heightened scrutiny is constitutionally mandated in the first instance. Even assuming that many of these laws could be shown to be substantially related to an important governmental purpose, merely requiring the legislature to justify its efforts in these terms may lead it to refrain from acting at all. Much recent legislation intended to benefit the retarded also assumes the need for measures that might be perceived to disadvantage them. The Education of the Handicapped Act, for example, requires an “appropriate” education, not one that is equal in all respects to the education of nonretarded children; clearly, admission to a class that exceeded the abilities of a retarded child would not be appropriate. Similarly, the Developmental Disabilities Assistance Act and the Texas Act give the retarded the right to live only in the “least restrictive setting” appropriate to their abilities, implicitly assuming the need for at least some restrictions that would not be imposed on others. Especially given the wide variation in the abilities and needs of the retarded themselves, governmental bodies must have a certain amount of flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts.
Third, the legislative response, which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. Any minority can be said to be powerless to assert direct control over the legislature, but if that were a criterion for higher level scrutiny by the courts, much economic and social legislation would now be suspect.
Fourth, if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.
Doubtless, there have been and there will continue to be instances of discrimination against the retarded that are in fact invidious, and that are properly subject to judicial correction under constitutional norms. But the appropriate method of reaching such instances is not to create a new quasi-suspect classification and subject all governmental action based on that classification to more searching evaluation. Rather, we should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us. Because mental retardation is a characteristic that the government may legitimately take into account in a wide range of decisions, and because both State and Federal Governments have recently committed themselves to assisting the retarded, we will not presume that any given legislative action, even one that disadvantages retarded individuals, is rooted in considerations that the Constitution will not tolerate.
Our refusal to recognize the retarded as a quasi-suspect class does not leave them entirely unprotected from invidious discrimination. To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose. This standard, we believe, affords government the latitude necessary both to pursue policies designed to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded in what is essentially an incidental manner. The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. See United States Dept. of Agriculture v. Moreno (1973). Furthermore, some objectives – such as “a bare . . . desire to harm a politically unpopular group,” – are not legitimate state interests. Beyond that, the mentally retarded, like others, have and retain their substantive constitutional rights in addition to the right to be treated equally by the law.
IV
We turn to the issue of the validity of the zoning ordinance insofar as it requires a special use permit for homes for the mentally retarded. We inquire first whether requiring a special use permit for the Featherston home in the circumstances here deprives respondents of the equal protection of the laws. If it does, there will be no occasion to decide whether the special use permit provision is facially invalid where the mentally retarded are involved, or to put it another way, whether the city may never insist on a special use permit for a home for the mentally retarded in an R-3 zone. This is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments.
The constitutional issue is clearly posed. The city does not require a special use permit in an R-3 zone for apartment houses, multiple dwellings, boarding and lodging houses, fraternity or sorority houses, dormitories, apartment hotels, hospitals, sanitariums, nursing homes for convalescents or the aged (other than for the insane or feebleminded or alcoholics or drug addicts), private clubs or fraternal orders, and other specified uses. It does, however, insist on a special permit for the Featherston home, and it does so, as the District Court found, because it would be a facility for the mentally retarded. May the city require the permit for this facility when other care and multiple-dwelling facilities are freely permitted?
It is true, as already pointed out, that the mentally retarded as a group are indeed different from others not sharing their misfortune, and in this respect they may be different from those who would occupy other facilities that would be permitted in an R-3 zone without a special permit. But this difference is largely irrelevant unless the Featherston home and those who would occupy it would threaten legitimate interests of the city in a way that other permitted uses such as boarding houses and hospitals would not. Because in our view the record does not reveal any rational basis for believing that the Featherston home would pose any special threat to the city’s legitimate interests, we affirm the judgment below insofar as it holds the ordinance invalid as applied in this case.
The District Court found that the City Council’s insistence on the permit rested on several factors. First, the Council was concerned with the negative attitude of the majority of property owners located within 200 feet of the Featherston facility, as well as with the fears of elderly residents of the neighborhood. But mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like. It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause, and the city may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti (1984).
Second, the Council had two objections to the location of the facility. It was concerned that the facility was across the street from a junior high school, and it feared that the students might harass the occupants of the Featherston home. But the school itself is attended by about 30 mentally retarded students, and denying a permit based on such vague, undifferentiated fears is again permitting some portion of the community to validate what would otherwise be an equal protection violation. The other objection to the home’s location was that it was located on “a five hundred year flood plain.” This concern with the possibility of a flood, however, can hardly be based on a distinction between the Featherston home and, for example, nursing homes, homes for convalescents or the aged, or sanitariums or hospitals, any of which could be located on the Featherston site without obtaining a special use permit. The same may be said of another concern of the Council – doubts about the legal responsibility for actions which the mentally retarded might take. If there is no concern about legal responsibility with respect to other uses that would be permitted in the area, such as boarding and fraternity houses, it is difficult to believe that the groups of mildly or moderately mentally retarded individuals who would live at 201 Featherston would present any different or special hazard.
Fourth, the Council was concerned with the size of the home and the number of people that would occupy it. The District Court found, and the Court of Appeals repeated, that “[i]f the potential residents of the Featherston Street home were not mentally retarded, but the home was the same in all other respects, its use would be permitted under the city’s zoning ordinance.” Given this finding, there would be no restrictions on the number of people who could occupy this home as a boarding house, nursing home, family dwelling, fraternity house, or dormitory. The question is whether it is rational to treat the mentally retarded differently. It is true that they suffer disability not shared by others; but why this difference warrants a density regulation that others need not observe is not at all apparent. At least this record does not clarify how, in this connection, the characteristics of the intended occupants of the Featherston home rationally justify denying to those occupants what would be permitted to groups occupying the same site for different purposes. Those who would live in the Featherston home are the type of individuals who, with supporting staff, satisfy federal and state standards for group housing in the community; and there is no dispute that the home would meet the federal square-footage-per-resident requirement for facilities of this type. In the words of the Court of Appeals, “[t]he City never justifies its apparent view that other people can live under such ‘crowded’ conditions when mentally retarded persons cannot.”
In the courts below the city also urged that the ordinance is aimed at avoiding concentration of population and at lessening congestion of the streets. These concerns obviously fail to explain why apartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area without a permit. So, too, the expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of danger to other residents fail rationally to justify singling out a home such as 201 Featherston for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood.
The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded, including those who would occupy the Featherston facility and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law.
The judgment of the Court of Appeals is affirmed insofar as it invalidates the zoning ordinance as applied to the Featherston home. The judgment is otherwise vacated, and the case is remanded.
It is so ordered.
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Notes
1. Be prepared to articulate the criteria the Court in Cleburne uses to determine whether or not the classification is one which merits heightened scrutiny.
2. Dissenting in part, Justice Marshall, joined by Brennan and Blackmun argued that the Court was actually employing heightened review and that the classification deserved intermediate scrutiny. Footnote 24 of Justice Thurgood Marshall’s opinion is instructive:
No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. The “political powerlessness” of a group may be relevant, but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be considered politically powerless to an extreme degree. Nonetheless, we see few statutes reflecting prejudice or indifference to minors, and I am not aware of any suggestion that legislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly, immutability of the trait at issue may be relevant, but many immutable characteristics, such as height or blindness, are valid bases of governmental action and classifications under a variety of circumstances. The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that group’s interests and needs. Statutes discriminating against the young have not been common nor need be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. The discreteness and insularity warranting a “more searching judicial inquiry,” United States v. Carolene Products Co. n. 4 (1938), must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner (1921) (Holmes, J.).
3. Be prepared to articulate the difference between “facial” and “as applied” challenges to the constitutionality of a statute, ordinance, or policy.
Romer v. Evans
517 U.S. 620 (1996)
Justice Kennedy delivered the opinion of the Court.
One century ago, the first Justice Harlan admonished this Court that the Constitution “neither knows nor tolerates classes among citizens.” Plessy v. Ferguson (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provi-sion of Colorado’s Constitution.
The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as “Amendment 2,” its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the City and County of Denver each had enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services.
What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Colo. Const., Art. II, § 30b.
Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads:
No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation.
Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing.
Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was commenced in the District Court for the City and County of Denver. Among the plaintiffs (respondents here) were homosexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado.
The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. To reach this conclusion, the state court relied on our voting rights cases, e.g., Reynolds v. Sims (1964), and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e.g., Hunter v. Erickson (1969); Washington v. Seattle School Dist. No. 1 (1982). On remand, the State advanced various arguments in an effort to show that Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. We granted certiorari and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court.
The State’s principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment’s language is implausible. We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado’s Supreme Court * * * * {concluding that} “The ‘ultimate effect’ of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures.”
Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances that the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.
The change that Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern anti discrimination laws. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. * * * *
Colorado’s state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. The laws first enumerate the persons or entities subject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. The Boulder ordinance, for example, has a comprehensive definition of entities deemed places of “public accommodation.” They include “any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind.” The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and “shops and stores dealing with goods or services of any kind.”
These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado’s state and local governments have not limited anti discrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. Rather, they set forth an extensive catalogue of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates—and, in recent times, sexual orientation.
Amendment 2 bars homosexuals from securing protection against the injuries that these public accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment.
Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government. The State Supreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035 (1990), which forbids employment discrimination against “ ‘all state employees, classified and exempt’ on the basis of sexual orientation.” Also repealed, and now forbidden, are “various provisions prohibiting discrimination based on sexual orientation at state colleges.” The repeal of these measures and the prohibition against their future reenactment demonstrates that Amendment 2 has the same force and effect in Colorado’s governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation.
Amendment 2’s reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and thus forbidden basis for decision. * * * * In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.
The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must co exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney (1979). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.
Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New Orleans v. Dukes (1976) (tourism benefits justified classification favoring pushcart vendors of certain longevity); Williamson v. Lee Optical (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. New York (1949) (potential traffic hazards justified exemption of vehicles advertising the owner’s products from general advertising ban). The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to ascertain that there existed some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.
Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”
It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “‘Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’” Sweatt v. Painter (1950) (quoting Shelley v. Kraemer (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ ” Skinner v. Oklahoma ex rel. Williamson (1942) (quoting Yick Wo v. Hopkins (1886)).
Davis v. Beason (1890), not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it “simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it.” To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See Richardson v. Ramirez (1974).
A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose and Amendment 2 does not.
The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . .” Civil Rights Cases (1883).
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.
It is so ordered.
Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.
The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “‘bare . . . desire to harm’” homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion’s heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.
In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality. I vigorously dissent.
Let me first discuss Part II of the Court’s opinion, its longest section, which is devoted to rejecting the State’s arguments that Amendment 2 “puts gays and lesbians in the same position as all other persons,” and “does no more than deny homosexuals special rights.” * * * *
Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the * * * only denial of equal treatment [the majority] contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged “equal protection” violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.
The central thesis of the Court’s reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court’s opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature—unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court’s theory is unheard of.
The Court might reply that the example I have given is not a denial of equal protection only because the same “rational basis” (avoidance of corruption) which renders constitutional the substantive discrimination against relatives (i.e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral procedural discrimination against them (i.e., the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why “electoral procedural discrimination” has not hitherto been heard of: a law that is valid in its substance is automatically valid in its level of enactment. But the Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a rational basis for the substance of the prohibition at issue here. The Court’s entire novel theory rests upon the proposition that there is something special—something that cannot be justified by normal “rational basis” analysis—in making a disadvantaged group (or a nonpreferred group) resort to a higher decisionmaking level. That proposition finds no support in law or logic.
I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment—for the prohibition of special protection for homosexuals. It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court’s opinion: In Bowers v. Hardwick (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years—making homosexual conduct a crime. That holding is unassailable, except by those who think that the Constitution changes to suit current fashions. * * * *
* * * * But assuming that, in Amendment 2, a person of homosexual “orientation” is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual-orientation” is an acceptable stand in for homosexual conduct. A State “does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect,” Dandridge v. Williams (1970). Just as a policy barring the hiring of methadone users as transit employees does not violate equal protection simply because some methadone users pose no threat to passenger safety, see New York City Transit Authority v. Beazer (1979), and just as a mandatory retirement age of 50 for police officers does not violate equal protection even though it prematurely ends the careers of many policemen over 50 who still have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia (1976) (per curiam), Amendment 2 is not constitutionally invalid simply because it could have been drawn more precisely so as to withdraw special antidiscrimination protections only from those of homosexual “orientation” who actually engage in homosexual conduct. * * * *
* * * * The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons—for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct—that is, it prohibits favored status for homosexuality.
But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable. The Court’s portrayal of Coloradans as a society fallen victim to pointless, hate filled “gay bashing” is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens.
There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable “alternate life style.” The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) (“[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation”).
By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals’ quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities—Aspen, Boulder, and Denver—had enacted ordinances that listed “sexual orientation” as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. * * * * I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.
That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. * * * *
[T]here is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is “forever prohibited.” Polygamists, and those who have a polygamous “orientation,” have been “singled out” by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court’s disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state legislated, or perhaps even local option, basis—unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
The United States Congress, by the way, required the inclusion of these anti polygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the anti polygamy provisions be “irrevocable without the consent of the United States and the people of said State”—so that not only were “each of [the] parts” of these States not “open on impartial terms” to polygamists, but even the States as a whole were not; polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its constitution to be “republican in form and . . . in conformity with the Constitution of the United States Thus, this “singling out” of the sexual practices of a single group for statewide, democratic vote—so utterly alien to our constitutional system, the Court would have us believe—has not only happened, but has received the explicit approval of the United States Congress.
I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason (1890) * * * * To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has of course been overruled by later cases. * * * *
This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. * * * *
The Court today, announcing that Amendment 2 “defies . . . conventional [constitutional] inquiry,” and “confounds [the] normal process of judicial review,” employs a constitutional theory heretofore unknown to frustrate Colorado’s reasonable effort to preserve traditional American moral values. The Court’s stern disapproval of “animosity” towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation:
“[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”
I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.
But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than “ ‘a bare . . . desire to harm a politically unpopular group,’ ” quoting Department of Agriculture v. Moreno (1973), is nothing short of insulting. (It is also nothing short of preposterous to call “politically unpopular” a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2.)
When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins—and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court’s Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation’s law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant’s homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: “assurance of the employer’s willingness” to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. § 6-4(b); Executive Committee Regulations of the Association of American Law Schools § 6.19, in 1995 Handbook, Association of American Law Schools. This law school view of what “prejudices” must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e.g., Employment Non Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans With Disabilities Act of 1990, see 42 U.S.C. § 12211(a) (1988 ed., Supp. V).
* * *
Today’s opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.
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I. Education
San Antonio Independent School District v. Rodriguez
411 U.S. 1 (1973)
Mr. Justice Powell delivered the opinion of the Court.
This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. Named as defendants were the State Board of Education, the Commissioner of Education, the State Attorney General, and the Bexar County (San Antonio) Board of Trustees. * * * * In December 1971 {three judge court} panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. For the reasons stated in this opinion, we reverse the decision of the District Court.
I
The first Texas State Constitution, promulgated upon Texas’ entry into the Union in 1845, provided for the establishment of a system of free schools. Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. * * * *
Until recent times, Texas was a predominantly rural State and its population and property wealth were spread relatively evenly across the State. Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.
In due time it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities. * * * * Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas’ changing educational requirements, the state legislature in the late 1940’s undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome interdistrict disparities in taxable resources. The Committee’s efforts led to the passage of the Gilmer-Aikin bills, named for the Committee’s co-chairmen, establishing the Texas Minimum Foundation School Program. Today, this Program accounts for approximately half of the total educational expenditures in Texas. The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. * * * *
In the years since this program went into operation in 1949, expenditures for education – from state as well as local sources – have increased steadily. * * * *
The school district in which appellees reside, the Edgewood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State’s impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled in its 25 elementary and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is \$5,960 – the lowest in the metropolitan area – and the median family income (\$4,686) is also the lowest. At an equalized tax rate of \$1.05 per \$100 of assessed property – the highest in the metropolitan area – the district contributed \$26 to the education of each child for the 1967-1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed \$222 per pupil for a state-local total of \$248. Federal funds added another \$108 for a total of \$356 per pupil.
Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly “Anglo,” having only 18% Mexican-Americans and less than 1% Negroes. The assessed property value per pupil exceeds \$49,000, and the median family income is \$8,001. In 1967-1968 the local tax rate of \$.85 per \$100 of valuation yielded \$333 per pupil over and above its contribution to the Foundation Program. Coupled with the \$225 provided from that Program, the district was able to supply \$558 per student. Supplemented by a \$36 per-pupil grant from federal sources, Alamo Heights spent \$594 per pupil.
* * * * Despite * * * * recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State still exist. And it was these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas’ dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. Finding that wealth is a “suspect” classification and that education is a “fundamental” interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling state interest. On this issue the court concluded that “[n]ot only are defendants unable to demonstrate compelling state interests . . . they fail even to establish a reasonable basis for these classifications.”
Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights or that involve suspect classifications. * * * * {But} the State defends the system’s rationality with vigor and disputes the District Court’s finding that it lacks a “reasonable basis.”
This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.
II
The District Court’s opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees’ challenge to Texas’ system of school financing. In concluding that strict judicial scrutiny was required that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes, and on cases disapproving wealth restrictions on the right to vote. Those cases, the District Court concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education, that there is a fundamental right to education and that, absent some compelling state justification, the Texas system could not stand.
We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect-classification nor the fundamental-interest analysis persuasive.
A
The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school-financing laws in other States, is quite unlike any of the forms of wealth discrimination heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference for purposes of consideration under the Constitution that the class of disadvantaged “poor” cannot be identified or defined in customary equal protection terms, and whether the relative – rather than absolute – nature of the asserted deprivation is of significant consequence. Before a State’s laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below.
The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court’s opinion and of appellees’ complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating (1) against “poor” persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally “indigent,” or (2) against those who are relatively poorer than others, or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect.
The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In Griffin v. Illinois (1956), and its progeny the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some “adequate substitute” for a full stenographic transcript. * * * *
Only appellees’ first possible basis for describing the class disadvantaged by the Texas school-financing system – discrimination against a class of definably “poor” persons – might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that “[i]t is clearly incorrect . . . to contend that the ‘poor’ live in ‘poor’ districts.” * * * * Defining “poor” families as those below the Bureau of the Census “poverty level,” the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas – those same areas that provide the most attractive sources of property tax income for school districts. Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people – defined by reference to any level of absolute impecunity – are concentrated in the poorest districts.
Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money expended for it, a sufficient answer to appellees’ argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. Nor, indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an “adequate” education for all children in the State. By providing 12 years of free public-school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to “guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by ‘A Minimum Foundation Program of Education.’” The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire and that it now assures “every child in every school district an adequate education.” No proof was offered at trial persuasively discrediting or refuting the State’s assertion.
For these two reasons – the absence of any evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education – the disadvantaged class is not susceptible of identification in traditional terms. * * * *
However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.
We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. They also assert that the State’s system impermissibly interferes with the exercise of a “fundamental” right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. Shapiro v. Thompson (1969). It is this question – whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution – which has so consumed the attention of courts and commentators in recent years.
B
In Brown v. Board of Education (1954), a unanimous Court recognized that “education is perhaps the most important function of state and local governments.” What was said there in the context of racial discrimination has lost none of its vitality with the passage of time:
“Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”
This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided.
Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. {discussion of cases, including Shapiro v. Thompson omitted}.
The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Eisenstadt v. Baird (1972); Skinner v. Oklahoma (1942).
Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation. It is appellees’ contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The “marketplace of ideas” is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge.
A similar line of reasoning is pursued with respect to the right to vote. Exercise of the franchise, it is contended, cannot be divorced from the educational foundation of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed.
We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities.
Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. Whatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where – as is true in the present case – no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.
Furthermore, the logical limitations on appellees’ nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment. * * * *
We have carefully considered each of the arguments supportive of the District Court’s finding that education is a fundamental right or liberty and have found those arguments unpersuasive. In one further respect we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which “deprived,” “infringed,” or “interfered” with the free exercise of some such fundamental personal right or liberty. See Skinner v. Oklahoma; Shapiro v. Thompson. A critical distinction between those cases and the one now before us lies in what Texas is endeavoring to do with respect to education. * * * * Every step leading to the establishment of the system Texas utilizes today – including the decisions permitting localities to tax and expend locally, and creating and continuously expanding state aid – was implemented in an effort to extend public education and to improve its quality. Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State’s efforts and to the rights reserved to the States under the Constitution.
C
It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights. * * * *
The foregoing considerations buttress our conclusion that Texas’ system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention.
III
The basic contours of the Texas school finance system have been traced at the outset of this opinion. We will now describe in more detail that system and how it operates, as these facts bear directly upon the demands of the Equal Protection Clause. * * * *
In sum, to the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. Texas has acknowledged its shortcomings and has persistently endeavored – not without some success – to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and in major part is the product of responsible studies by qualified people. In giving substance to the presumption of validity to which the Texas system is entitled, it is important to remember that at every stage of its development it has constituted a “rough accommodation” of interests in an effort to arrive at practical and workable solutions. One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. We hold that the Texas plan abundantly satisfies this standard.
IV
* * * * The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court’s action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.
Reversed.
Mr. Justice Marshall, with whom Mr. Justice Douglas concurs, dissenting.
The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority’s decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. More unfortunately, though, the majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.
In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the political process which, contrary to the majority’s suggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination. I, for one, am unsatisfied with the hope of an ultimate “political” solution sometime in the indefinite future while, in the meantime, countless children unjustifiably receive inferior educations that “may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Board of Education (1954). I must therefore respectfully dissent.
* * * * {T}he appellants and the majority may believe that the Equal Protection Clause cannot be offended by substantially unequal state treatment of persons who are similarly situated so long as the State provides everyone with some unspecified amount of education which evidently is “enough.” The basis for such a novel view is far from clear. It is, of course, true that the Constitution does not require precise equality in the treatment of all persons. * * * * But this Court has never suggested that, because some “adequate” level of benefits is provided to all, discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency, but rather to the unjustifiable inequalities of state action. It mandates nothing less than that “all persons similarly circumstanced shall be treated alike.”
Even if the Equal Protection Clause encompassed some theory of constitutional adequacy, discrimination in the provision of educational opportunity would certainly seem to be a poor candidate for its application. Neither the majority nor appellants inform us how judicially manageable standards are to be derived for determining how much education is “enough” to excuse constitutional discrimination. * * * *
I must once more voice my disagreement with the Court’s rigidified approach to equal protection analysis. See Dandridge v. Williams (1970) (dissenting opinion). The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review—strict scrutiny or mere rationality. But this Court’s decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find, in fact, that many of the Court’s recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued—that is, an approach in which “concentration [is] placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification.” Dandridge v. Williams (dissenting opinion).
I therefore cannot accept the majority’s labored efforts to demonstrate that fundamental interests, which call for strict scrutiny of the challenged classification, encompass only established rights which we are somehow bound to recognize from the text of the Constitution itself. To be sure, some interests which the Court has deemed to be fundamental for purposes of equal protection analysis are themselves constitutionally protected rights. Thus, discrimination against the guaranteed right of freedom of speech has called for strict judicial scrutiny. Further, every citizen’s right to travel interstate, although nowhere expressly mentioned in the Constitution, has long been recognized as implicit in the premises underlying that document: the right “was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” Consequently, the Court has required that a state classification affecting the constitutionally protected right to travel must be “shown to be necessary to promote a compelling governmental interest.” Shapiro v. Thompson. But it will not do to suggest that the “answer” to whether an interest is fundamental for purposes of equal protection analysis is always determined by whether that interest “is a right . . . explicitly or implicitly guaranteed by the Constitution.”
I would like to know where the Constitution guarantees the right to procreate, Skinner v. Oklahoma (1942) or the right to vote in state elections, e.g., Reynolds v. Sims (1964) or the right to an appeal from a criminal conviction, e.g., Griffin v. Illinois (1956). These are instances in which, due to the importance of the interests at stake, the Court has displayed a strong concern with the existence of discriminatory state treatment. But the Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection.
Thus, in Buck v. Bell (1927), the Court refused to recognize a substantive constitutional guarantee of the right to procreate. Nevertheless, in Skinner v. Oklahoma, the Court, without impugning the continuing validity of Buck v. Bell, held that “strict scrutiny” of state discrimination affecting procreation “is essential,” for “[m]arriage and procreation are fundamental to the very existence and survival of the race.” Recently, in Roe v. Wade (1973), the importance of procreation has, indeed, been explained on the basis of its intimate relationship with the constitutional right of privacy which we have recognized. Yet the limited stature thereby accorded any “right” to procreate is evident from the fact that, at the same time, the Court reaffirmed its initial decision in Buck v. Bell. * * * *
The majority is, of course, correct when it suggests that the process of determining which interests are fundamental is a difficult one. But I do not think the problem is insurmountable. And I certainly do not accept the view that the process need necessarily degenerate into an unprincipled, subjective “picking-and-choosing” between various interests, or that it must involve this Court in creating “substantive constitutional rights in the name of guaranteeing equal protection of the laws.” Although not all fundamental interests are constitutionally guaranteed, the determination of which interests are fundamental should be firmly rooted in the text of the Constitution. The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly. Thus, it cannot be denied that interests such as procreation, the exercise of the state franchise, and access to criminal appellate processes are not fully guaranteed to the citizen by our Constitution. But these interests have nonetheless been afforded special judicial consideration in the face of discrimination because they are, to some extent, interrelated with constitutional guarantees. Procreation is now understood to be important because of its interaction with the established constitutional right of privacy. The exercise of the state franchise is closely tied to basic civil and political rights inherent in the First Amendment. And access to criminal appellate processes enhances the integrity of the range of rights implicit in the Fourteenth Amendment guarantee of due process of law. Only if we closely protect the related interests from state discrimination do we ultimately ensure the integrity of the constitutional guarantee itself. This is the real lesson that must be taken from our previous decisions involving interests deemed to be fundamental. * * * *
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Plyler v. Doe
457 U.S. 202 (1982)
Justice Brennan delivered the opinion of the Court.
The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens.
I
Since the late 19th century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime, and those who have entered unlawfully are subject to deportation. But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas.
In May 1975, the Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not “legally admitted” into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not “legally admitted” to the country. Tex. Educ. Code Ann. § 21.031.
These cases involve constitutional challenges to those provisions.
This is a class action, filed in the United States District Court for the Eastern District of Texas in September 1977, on behalf of certain school-age children of Mexican origin residing in Smith County, Tex., who could not establish that they had been legally admitted into the United States. The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District. The Superintendent and members of the Board of Trustees of the School District were named as defendants; the State of Texas intervened as a party-defendant. After certifying a class consisting of all undocumented school-age children of Mexican origin residing within the School District, the District Court preliminarily enjoined defendants from denying a free education to members of the plaintiff class. In December 1977, the court conducted an extensive hearing on plaintiffs’ motion for permanent injunctive relief.
In considering this motion, the District Court made extensive findings of fact. The court found that neither § 21.031 nor the School District policy implementing it had “either the purpose or effect of keeping illegal aliens out of the State of Texas.” Respecting defendants’ further claim that § 21.031 was simply a financial measure designed to avoid a drain on the State’s fisc, the court recognized that the increases in population resulting from the immigration of Mexican nationals into the United States had created problems for the public schools of the State, and that these problems were exacerbated by the special educational needs of immigrant Mexican children. The court noted, however, that the increase in school enrollment was primarily attributable to the admission of children who were legal residents. It also found that while the “exclusion of all undocumented children from the public schools in Texas would eventually result in economies at some level funding from both the State and Federal Governments was based primarily on the number of children enrolled. In net effect then, barring undocumented children from the schools would save money, but it would “not necessarily” improve “the quality of education.” The court further observed that the impact of § 21.031 was borne primarily by a very small subclass of illegal aliens, “entire families who have migrated illegally and – for all practical purposes – permanently to the United States.” Finally, the court noted that under current laws and practices “the illegal alien of today may well be the legal alien of tomorrow,” and that without an education, these undocumented children, “[a]lready disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices, . . . will become permanently locked into the lowest socio-economic class.”
The District Court held that illegal aliens were entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment, and that § 21.031 violated that Clause. Suggesting that “the state’s exclusion of undocumented children from its public schools . . . may well be the type of invidiously motivated state action for which the suspect classification doctrine was designed,” the court held that it was unnecessary to decide whether the statute would survive a “strict scrutiny” analysis because, in any event, the discrimination embodied in the statute was not supported by a rational basis. * * * *
The Court of Appeals for the Fifth Circuit upheld the District Court’s injunction. * * * *With respect to equal protection, however, the Court of Appeals affirmed in all essential respects the analysis of the District Court, concluding that § 21.031 was “constitutionally infirm regardless of whether it was tested using the mere rational basis standard or some more stringent test.” We noted probable jurisdiction. * * * *
II
The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction” of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Yick Wo v. Hopkins (1886). * * * *
* * * * To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection. * * * *
Our conclusion that the illegal aliens who are plaintiffs in these cases may claim the benefit of the Fourteenth Amendment’s guarantee of equal protection only begins the inquiry. The more difficult question is whether the Equal Protection Clause has been violated by the refusal of the State of Texas to reimburse local school boards for the education of children who cannot demonstrate that their presence within the United States is lawful, or by the imposition by those school boards of the burden of tuition on those children. It is to this question that we now turn.
III
The Equal Protection Clause directs that “all persons similarly circumstanced shall be treated alike.” But so too, “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” The initial discretion to determine what is “different” and what is “the same” resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.
But we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification. The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus we have treated as presumptively invidious those classifications that disadvantage a “suspect class,” or that impinge upon the exercise of a “fundamental right.” With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a [substantial interest of the State. {foonote to Craig v. Boren}. We turn to a consideration of the standard appropriate for the evaluation of § 21.031.
A
Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants – numbering in the millions – within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.
The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their “parents have the ability to conform their conduct to societal norms,” and presumably the ability to remove themselves from the State’s jurisdiction; but the children who are plaintiffs in these cases “can affect neither their parents’ conduct nor their own status.” Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice. * * * *
Of course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action. But § 21.031 is directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States. Yet that appears to be precisely the effect of § 21.031.
Public education is not a “right” granted to individuals by the Constitution. San Antonio Independent School Dist. v. Rodriguez (1973). But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. The “American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance.” Meyer v. Nebraska (1923). We have recognized “the public schools as a most vital civic institution for the preservation of a democratic system of government,” and as the primary vehicle for transmitting “the values on which our society rests.” “[A]s . . . pointed out early in our history, . . . some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” And these historic “perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.” In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.
In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. But more directly, “education prepares individuals to be self-reliant and self-sufficient participants in society.” Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause. What we said 28 years ago in Brown v. Board of Education (1954), still holds true * * * *
B
These well-settled principles allow us to determine the proper level of deference to be afforded § 21.031. Undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a “constitutional irrelevancy.” Nor is education a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population. See San Antonio Independent School Dist. v. Rodriguez. But more is involved in these cases than the abstract question whether § 21.031 discriminates against a suspect class, or whether education is a fundamental right. Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of § 21.031, we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in § 21.031 can hardly be considered rational unless it furthers some substantial goal of the State.
IV
It is the State’s principal argument, and apparently the view of the dissenting Justices, that the undocumented status of these children vel non establishes a sufficient rational basis for denying them benefits that a State might choose to afford other residents.
* * * * The State may borrow the federal classification. But to justify its use as a criterion for its own discriminatory policy, the State must demonstrate that the classification is reasonably adapted to “the purposes for which the state desires to use it.” We therefore turn to the state objectives that are said to support § 21.031.
V
Appellants argue that the classification at issue furthers an interest in the “preservation of the state’s limited resources for the education of its lawful residents.” Of course, a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources. The State must do more than justify its classification with a concise expression of an intention to discriminate. Apart from the asserted state prerogative to act against undocumented children solely on the basis of their undocumented status – an asserted prerogative that carries only minimal force in the circumstances of these cases – we discern three colorable state interests that might support § 21.031.
First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, § 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. * * * *
Second, while it is apparent that a State may “not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,” Shapiro v. Thompson (1969), appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State. * * * * Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion. In terms of educational cost and need, however, undocumented children are “basically indistinguishable” from legally resident alien children.
Finally, appellants suggest that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State. Even assuming that such an interest is legitimate, it is an interest that is most difficult to quantify. The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State’s borders. In any event, the record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.
VI
If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here. Accordingly, the judgment of the Court of Appeals in each of these cases is Affirmed.
Justice Blackmun, concurring.
I join the opinion and judgment of the Court. * * * * I write separately, however, because in my view the nature of the interest at stake is crucial to the proper resolution of these cases.
The “fundamental rights” aspect of the Court’s equal protection analysis – the now-familiar concept that governmental classifications bearing on certain interests must be closely scrutinized – has been the subject of some controversy. Justice Harlan, for example, warned that “[v]irtually every state statute affects important rights. . . . [T]o extend the ‘compelling interest’ rule to all cases in which such rights are affected would go far toward making this Court a ‘super-legislature.’” Shapiro v. Thompson (1969) (dissenting opinion). Others have noted that strict scrutiny under the Equal Protection Clause is unnecessary when classifications infringing enumerated constitutional rights are involved, for “a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law’s purpose or effect is to create any classifications.” San Antonio Independent School Dist. v. Rodriguez (1973) (Stewart, J., concurring). Still others have suggested that fundamental rights are not properly a part of equal protection analysis at all, because they are unrelated to any defined principle of equality.
These considerations, combined with doubts about the judiciary’s ability to make fine distinctions in assessing the effects of complex social policies, led the Court in Rodriguez to articulate a firm rule: fundamental rights are those that “explicitly or implicitly [are] guaranteed by the Constitution.” It therefore squarely rejected the notion that “an ad hoc determination as to the social or economic importance” of a given interest is relevant to the level of scrutiny accorded classifications involving that interest, and made clear that “[i]t is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”
I joined Justice Powell’s opinion for the Court in Rodriguez, and I continue to believe that it provides the appropriate model for resolving most equal protection disputes. Classifications infringing substantive constitutional rights necessarily will be invalid, if not by force of the Equal Protection Clause, then through operation of other provisions of the Constitution. Conversely, classifications bearing on nonconstitutional interests – even those involving “the most basic economic needs of impoverished human beings,” Dandridge v. Williams (1970) – generally are not subject to special treatment under the Equal Protection Clause, because they are not distinguishable in any relevant way from other regulations in “the area of economics and social welfare.”
With all this said, however, I believe the Court’s experience has demonstrated that the Rodriguez formulation does not settle every issue of “fundamental rights” arising under the Equal Protection Clause. Only a pedant would insist that there are no meaningful distinctions among the multitude of social and political interests regulated by the States, and Rodriguez does not stand for quite so absolute a proposition. To the contrary, Rodriguez implicitly acknowledged that certain interests, though not constitutionally guaranteed, must be accorded a special place in equal protection analysis. Thus, the Court’s decisions long have accorded strict scrutiny to classifications bearing on the right to vote in state elections * * * * In other words, the right to vote is accorded extraordinary treatment because it is, in equal protection terms, an extraordinary right: a citizen cannot hope to achieve any meaningful degree of individual political equality if granted an inferior right of participation in the political process. Those denied the vote are relegated, by state fiat, in a most basic way to second-class status.
It is arguable, of course, that the Court never should have applied fundamental rights doctrine in the fashion outlined above. * * * * But it is too late to debate that point, and I believe that accepting the principle of the voting cases – the idea that state classifications bearing on certain interests pose the risk of allocating rights in a fashion inherently contrary to any notion of “equality” – dictates the outcome here. * * * *
In my view, when the State provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with those purposes, mentioned above, of the Equal Protection Clause. Children denied an education are placed at a permanent and insurmountable competitive disadvantage, for an uneducated child is denied even the opportunity to achieve. And when those children are members of an identifiable group, that group – through the State’s action – will have been converted into a discrete underclass. Other benefits provided by the State, such as housing and public assistance, are of course important; to an individual in immediate need, they may be more desirable than the right to be educated. But classifications involving the complete denial of education are in a sense unique, for they strike at the heart of equal protection values by involving the State in the creation of permanent class distinctions. In a sense, then, denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage.
This conclusion is fully consistent with Rodriguez. The Court there reserved judgment on the constitutionality of a state system that “occasioned an absolute denial of educational opportunities to any of its children,” noting that “no charge fairly could be made that the system [at issue in Rodriguez] fails to provide each child with an opportunity to acquire . . . basic minimal skills.” And it cautioned that in a case “involv[ing] the most persistent and difficult questions of educational policy, . . . [the] Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels.” Thus Rodriguez held, and the Court now reaffirms, that “a State need not justify by compelling necessity every variation in the manner in which education is provided to its population.” Similarly, it is undeniable that education is not a “fundamental right” in the sense that it is constitutionally guaranteed. Here, however, the State has undertaken to provide an education to most of the children residing within its borders. And, in contrast to the situation in Rodriguez, it does not take an advanced degree to predict the effects of a complete denial of education upon those children targeted by the State’s classification. In such circumstances, the voting decisions suggest that the State must offer something more than a rational basis for its classification. * * * *
Justice Marshall, concurring.
While I join the Court opinion, I do so without in any way retreating from my opinion in San Antonio Independent School District v. Rodriguez (dissenting opinion). I continue to believe that an individual’s interest in education is fundamental, and that this view is amply supported “by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values.” * * * *
Justice Powell, concurring.
I join the opinion of the Court, and write separately to emphasize the unique character of the cases before us.
The classification in question severely disadvantages children who are the victims of a combination of circumstances. Access from Mexico into this country, across our 2,000-mile border, is readily available and virtually uncontrollable. * * * * I agree with the Court that their children should not be left on the streets uneducated.
Although the analogy is not perfect, our holding today does find support in decisions of this Court with respect to the status of illegitimates. * * * *
Chief Justice Burger, with whom Justice White, Justice Rehnquist, and Justice O’Connor join, dissenting.
Were it our business to set the Nation’s social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children – including illegal aliens – of an elementary education. I fully agree that it would be folly – and wrong – to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language. However, the Constitution does not constitute us as “Platonic Guardians” nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, “wisdom,” or “common sense.” We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today. * * * *
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Notes
1. Be prepared to discuss all of the challenges that the plaintiffs in San Antonio Independent School District v. Rodriguez would make.
2. A state constitutional law “sequel” to San Antonio is Edgewood Independent Sch. Dist. v. Kirby discussed in Chapter Twelve.
3. Be prepared to discuss the “door” that San Antonio leaves open that is apparent in Plyler v. Doe.
II. Voting
Reynolds v. Sims
377 U.S. 533 (1964)
Mr. Chief Justice Warren delivered the opinion of the Court.
Involved in these cases are an appeal and two cross-appeals from a decision of the Federal District Court for the Middle District of Alabama holding invalid, under the Equal Protection Clause of the Federal Constitution, the existing and two legislatively proposed plans for the apportionment of seats in the two houses of the Alabama Legislature, and ordering into effect a temporary reapportionment plan comprised of parts of the proposed but judicially disapproved measures.
I
On August 26, 1961, the original plaintiffs (appellees in No. 23), residents, taxpayers and voters of Jefferson County, Alabama, filed a complaint in the United States District Court for the Middle District of Alabama, in their own behalf and on behalf of all similarly situated Alabama voters, challenging the apportionment of the Alabama Legislature. Defendants below (appellants in No. 23), sued in their representative capacities, were various state and political party officials charged with the performance of certain duties in connection with state elections. The complaint alleged a deprivation of rights under the Alabama Constitution and under the Equal Protection Clause of the Fourteenth Amendment * * * *
{The Alabama legislature had both a House and a Senate, with 106 and 35 representatives respectively for the 67 counties. Because of population disparities, some Senate districts had large populations while other Senate districts had small populations, with a disparity of 41-1. The Legislature’s failure to reapportion and its subsequent reapportion plans that maintained the disparity were challenged.}
II
Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote. The Court stated that it is “as equally unquestionable that the right to have one’s vote counted is as open to protection . . . as the right to put a ballot in a box.” The right to vote can neither be denied outright, nor destroyed by alteration of ballots, nor diluted by ballot-box stuffing. As the Court stated, “Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted . . . .” Racially based gerrymandering and the conducting of white primaries, both of which result in denying to some citizens their right to vote, have been held to be constitutionally impermissible. And history has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.
* * * * {A} fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State. Our problem, then, is to ascertain, in the instant cases, whether there are any constitutionally cognizable principles which would justify departures from the basic standard of equality among voters in the apportionment of seats in state legislatures.
III
A predominant consideration in determining whether a State’s legislative apportionment scheme constitutes an invidious discrimination violative of rights asserted under the Equal Protection Clause is that the rights allegedly impaired are individual and personal in nature. * * * * While the result of a court decision in a state legislative apportionment controversy may be to require the restructuring of the geographical distribution of seats in a state legislature, the judicial focus must be concentrated upon ascertaining whether there has been any discrimination against certain of the State’s citizens which constitutes an impermissible impairment of their constitutionally protected right to vote. Like Skinner v. Oklahoma (1942), such a case “touches a sensitive and important area of human rights,” and “involves one of the basic civil rights of man,” presenting questions of alleged “invidious discriminations . . . against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.” Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Almost a century ago, in Yick Wo v. Hopkins, the Court referred to “the political franchise of voting” as “a fundamental political right, because preservative of all rights.”
Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. It could hardly be gainsaid that a constitutional claim had been asserted by an allegation that certain otherwise qualified voters had been entirely prohibited from voting for members of their state legislature. And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State’s voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable. Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical. Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. Two, five, or 10 of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable. One must be ever aware that the Constitution forbids “sophisticated as well as simple-minded modes of discrimination.” * * * *
State legislatures are, historically, the fountainhead of representative government in this country. A number of them have their roots in colonial times, and substantially antedate the creation of our Nation and our Federal Government. In fact, the first formal stirrings of American political independence are to be found, in large part, in the views and actions of several of the colonial legislative bodies. With the birth of our National Government, and the adoption and ratification of the Federal Constitution, state legislatures retained a most important place in our Nation’s governmental structure. But representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs, and the Constitution demands, no less.
Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State’s legislators. To conclude differently, and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result. Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will. And the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live. Any suggested criteria for the differentiation of citizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant to the permissible purposes of legislative apportionment. Since the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, Brown v. Board of Education. * * * * Our constitutional system amply provides for the protection of minorities by means other than giving them majority control of state legislatures. And the democratic ideals of equality and majority rule, which have served this Nation so well in the past, are hardly of any less significance for the present and the future.
We are told that the matter of apportioning representation in a state legislature is a complex and many-faceted one. We are advised that States can rationally consider factors other than population in apportioning legislative representation. We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us. * * * *
To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. The complexions of societies and civilizations change, often with amazing rapidity. A nation once primarily rural in character becomes predominantly urban. Representation schemes once fair and equitable become archaic and outdated. But the basic principle of representative government remains, and must remain, unchanged – the weight of a citizen’s vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies. A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution’s Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln’s vision of “government of the people, by the people, [and] for the people.” The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.
IV
We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. Since, under neither the existing apportionment provisions nor either of the proposed plans was either of the houses of the Alabama Legislature apportioned on a population basis, the District Court correctly held that all three of these schemes were constitutionally invalid. * * * *
* * * * Much has been written * * * * about the applicability of the so-called federal analogy to state legislative apportionment arrangements. After considering the matter, the court below concluded that no conceivable analogy could be drawn between the federal scheme and the apportionment of seats in the Alabama Legislature under the proposed constitutional amendment. We agree with the District Court, and find the federal analogy inapposite and irrelevant to state legislative districting schemes. Attempted reliance on the federal analogy appears often to be little more than an after-the-fact rationalization offered in defense of maladjusted state apportionment arrangements. * * * *
The system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic. Arising from unique historical circumstances, it is based on the consideration that in establishing our type of federalism a group of formerly independent States bound themselves together under one national government. Admittedly, the original 13 States surrendered some of their sovereignty in agreeing to join together “to form a more perfect Union.” But at the heart of our constitutional system remains the concept of separate and distinct governmental entities which have delegated some, but not all, of their formerly held powers to the single national government. The fact that almost three-fourths of our present States were never in fact independently sovereign does not detract from our view that the so-called federal analogy is inapplicable as a sustaining precedent for state legislative apportionments. The developing history and growth of our republic cannot cloud the fact that, at the time of the inception of the system of representation in the Federal Congress, a compromise between the larger and smaller States on this matter averted a deadlock in the Constitutional Convention which had threatened to abort the birth of our Nation. * * * *
Political subdivisions of States – counties, cities, or whatever – never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. * * * *The relationship of the States to the Federal Government could hardly be less analogous.
Thus, we conclude that the plan contained in the 67-Senator Amendment for apportioning seats in the Alabama Legislature cannot be sustained by recourse to the so-called federal analogy. Nor can any other inequitable state legislative apportionment scheme be justified on such an asserted basis. This does not necessarily mean that such a plan is irrational or involves something other than a “republican form of government.” We conclude simply that such a plan is impermissible for the States under the Equal Protection Clause, since perforce resulting, in virtually every case, in submergence of the equal-population principle in at least one house of a state legislature.
Since we find the so-called federal analogy inapposite to a consideration of the constitutional validity of state legislative apportionment schemes, we necessarily hold that the Equal Protection Clause requires both houses of a state legislature to be apportioned on a population basis. The right of a citizen to equal representation and to have his vote weighted equally with those of all other citizens in the election of members of one house of a bicameral state legislature would amount to little if States could effectively submerge the equal-population principle in the apportionment of seats in the other house. * * * * In summary, we can perceive no constitutional difference, with respect to the geographical distribution of state legislative representation, between the two houses of a bicameral state legislature.
* * * *
V–IX
{discussing specific plans and remedies; omitted}
X
We find, therefore, that the action taken by the District Court in this case, in ordering into effect a reapportionment of both houses of the Alabama Legislature for purposes of the 1962 primary and general elections, by using the best parts of the two proposed plans which it had found, as a whole, to be invalid, was an appropriate and well-considered exercise of judicial power * * * * we affirm the judgment below and remand the cases for further proceedings consistent with the views stated in this opinion.
It is so ordered.
Harper v. Virginia Board of Elections
383 U.S. 663 (1966)
Justice Douglas delivered the opinion of the Court.
These are suits by Virginia residents to have declared unconstitutional Virginia’s poll tax. The three-judge District Court, feeling bound by our decision in Breedlove v. Suttles (1937) dismissed the complaint. The cases came here on appeal and we noted probable jurisdiction.
While the right to vote in federal elections is conferred by Art. I, § 2, of the Constitution the right to vote in state elections is nowhere expressly mentioned. It is argued that the right to vote in state elections is implicit, particularly by reason of the First Amendment and that it may not constitutionally be conditioned upon the payment of a tax or fee. We do not stop to canvass the relation between voting and political expression. For it is enough to say that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. That is to say, the right of suffrage “is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.” Lassiter v. Northampton Election Board (1959). We were speaking there of a state literacy test which we sustained, warning that the result would be different if a literacy test, fair on its face, were used to discriminate against a class. But the Lassiter case does not govern the result here, because, unlike a poll tax, the “ability to read and write . . . has some relation to standards designed to promote intelligent use of the ballot.”
We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate. Thus without questioning the power of a State to impose reasonable residence restrictions on the availability of the ballot, we held in Carrington v. Rash (1969), that a State may not deny the opportunity to vote to a bona fide resident merely because he is a member of the armed services. “By forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment. * * * * We think the same must be true of requirements of wealth or affluence or payment of a fee.
Long ago in Yick Wo v. Hopkins (1886) the Court referred to “the political franchise of voting” as a “fundamental political right, because preservative of all rights.” Recently in Reynolds v. Sims, we said, “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” There we were considering charges that voters in one part of the State had greater representation per person in the State Legislature than voters in another part of the State. We concluded:
A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution’s Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln’s vision of ‘government of the people, by the people, [and] for the people.’ The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.
We say the same whether the citizen, otherwise qualified to vote, has \$1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.
It is argued that a State may exact fees from citizens for many different kinds of licenses; that if it can demand from all an equal fee for a driver’s license, it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race are traditionally disfavored. To introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context – that is, as a condition of obtaining a ballot – the requirement of fee paying causes an “invidious” discrimination that runs afoul of the Equal Protection Clause. Levy “by the poll,” as stated in Breedlove v. Suttles is an old familiar form of taxation; and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as “a prerequisite of voting.” To that extent the Breedlove case is overruled.
We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment “does not enact Mr. Herbert Spencer’s Social Statics” (Lochner v. New York (1905)). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court in 1896 held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson. Seven of the eight Justices then sitting subscribed to the Court’s opinion, thus joining in expressions of what constituted unequal and discriminatory treatment that sound strange to a contemporary ear. When, in 1954 – more than a half-century later – we repudiated the “separate-but-equal” doctrine of Plessy as respects public education we stated: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” Brown v. Board of Education (1954).
In a recent searching re-examination of the Equal Protection Clause, we held, as already noted, that “the opportunity for equal participation by all voters in the election of state legislators” is required. Reynolds v. Sims. We decline to qualify that principle by sustaining this poll tax. Our conclusion, like that in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.
We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.
Those principles apply here. For to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.
Reversed.
Mr. Justice Black, dissenting.
In Breedlove v. Suttles, decided December 6, 1937, a few weeks after I took my seat as a member of this Court, we unanimously upheld the right of the State of Georgia to make payment of its state poll tax a prerequisite to voting in state elections. We rejected at that time contentions that the state law violated the Equal Protection Clause of the Fourteenth Amendment because it put an unequal burden on different groups of people according to their age, sex, and ability to pay.
Since {then} the Federal Constitution has not been amended in the only way it could constitutionally have been, that is, as provided in Article V of the Constitution. I would adhere to the holding of those cases. The Court, however, overrules Breedlove in part, but its opinion reveals that it does so not by using its limited power to interpret the original meaning of the Equal Protection Clause, but by giving that clause a new meaning which it believes represents a better governmental policy. From this action I dissent.
It should be pointed out at once that the Court’s decision is to no extent based on a finding that the Virginia law as written or as applied is being used as a device or mechanism to deny Negro citizens of Virginia the right to vote on account of their color. Apparently the Court agrees with the District Court below and with my Brothers Harlan and Stewart that this record would not support any finding that the Virginia poll tax law the Court invalidates has any such effect. If the record could support a finding that the law as written or applied has such an effect, the law would of course be unconstitutional as a violation of the Fourteenth and Fifteenth Amendments * * * *
The Court denies that it is using the “natural-law-due-process formula.” It says that its invalidation of the Virginia law “is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.” I find no statement in the Court’s opinion, however, which advances even a plausible argument as to why the alleged discriminations which might possibly be effected by Virginia’s poll tax law are “irrational,” “unreasonable,” “arbitrary,” or “invidious” or have no relevance to a legitimate policy which the State wishes to adopt. The Court gives no reason at all to discredit the long-standing beliefs that making the payment of a tax a prerequisite to voting is an effective way of collecting revenue and that people who pay their taxes are likely to have a far greater interest in their government. The Court’s failure to give any reasons to show that these purposes of the poll tax are “irrational,” “unreasonable,” “arbitrary,” or “invidious” is a pretty clear indication to me that none exist. I can only conclude that the primary, controlling, predominant, if not the exclusive reason for declaring the Virginia law unconstitutional is the Court’s deep-seated hostility and antagonism, which I share, to making payment of a tax a prerequisite to voting.
The Court’s justification for consulting its own notions rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be “shackled to the political theory of a particular era,” and that to save the country from the original Constitution the Court must have constant power to renew it and keep it abreast of this Court’s more enlightened theories of what is best for our society. * * * *
Mr. Justice Harlan, whom Mr. Justice Stewart joins, dissenting.
The final demise of state poll taxes, already totally proscribed by the Twenty-Fourth Amendment with respect to federal elections and abolished by the States themselves in all but four States {footnote 1: Alabama, Mississippi, Texas, and Virginia} with respect to state elections, is perhaps in itself not of great moment. But the fact that the coup de grace has been administered by this Court instead of being left to the affected States or to the federal political process should be a matter of continuing concern to all interested in maintaining the proper role of this tribunal under our scheme of government. * * * *
Bush v. Gore
531 U.S. 98 (2000)
I
On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic Candidates for President and Vice President. The Supreme Court noted that petitioner, Governor George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. The court further held that relief would require manual recounts in all Florida counties where so-called “undervotes” had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari.
* * * * On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner, Governor Bush, had received 2,909,135 votes, and respondent, Vice President Gore, had received 2,907,351 votes, a margin of 1,784 for Governor Bush. Because Governor Bush’s margin of victory was less than “one-half of a percent . . . of the votes cast,” an automatic machine recount was conducted under § 102.141(4) of the {Florida} election code, the results of which showed Governor Bush still winning the race but by a diminished margin. Vice President Gore then sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida’s election protest provisions. Fla. Stat. § 102.166 (2000). A dispute arose concerning the deadline for local county canvassing boards to submit their returns to the Secretary of State (Secretary). The Secretary declined to waive the November 14 deadline imposed by statute. §§ 102.111, 102.112. The Florida Supreme Court, however, set the deadline at November 26. We granted certiorari and vacated the Florida Supreme Court’s decision, finding considerable uncertainty as to the grounds on which it was based. Bush I. On December 11, the Florida Supreme Court issued a decision on remand reinstating that date.
On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush the winner of Florida’s 25 electoral votes. On November 27, Vice President Gore, pursuant to Florida’s contest provisions, filed a complaint in Leon County Circuit Court contesting the certification. He sought relief pursuant to § 102.168(3)(c), which provides that “[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election “shall be grounds for a contest. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden of proof. He appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court.
Accepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part. Gore v. Harris (2000). The court held that the Circuit Court had been correct to reject Vice President Gore’s challenge to the results certified in Nassau County and his challenge to the Palm Beach County Canvassing Board’s determination that 3,300 ballots cast in that county were not, in the statutory phrase, “legal votes.”
The {Florida} Supreme Court held that Vice President Gore had satisfied his burden of proof under § 102.168(3)(c) with respect to his challenge to Miami-Dade County’s failure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President (“undervotes”). Noting the closeness of the election, the Court explained that “[o]n this record, there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt.” A “legal vote,” as determined by the Supreme Court, is “one in which there is a ‘clear indication of the intent of the voter.’” The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the circuit judge to “provide any relief appropriate under such circumstances,” the Supreme Court further held that the Circuit Court could order “the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes . . . to do so forthwith, said tabulation to take place in the individual counties where the ballots are located.”
The {Florida} Supreme Court also determined that both Palm Beach County and Miami-Dade County, in their earlier manual recounts, had identified a net gain of 215 and 168 legal votes for Vice President Gore. Rejecting the Circuit Court’s conclusion that Palm Beach County lacked the authority to include the 215 net votes submitted past the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual recounts. As to Miami-Dade County, the Court concluded that although the 168 votes identified were the result of a partial recount, they were “legal votes [that] could change the outcome of the election.” The Supreme Court therefore directed the Circuit Court to include those totals in the certified results, subject to resolution of the actual vote total from the Miami-Dade partial recount.
The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, § 1, cl. 2, of the United States Constitution and failing to comply with 3 U. S. C. § 5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause.
A
The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.
This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.
B
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims (1964).
There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.
Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to count them. In some cases a piece of the card—a chad—is hanging, say by two corners. In other cases there is no separation at all, just an indentation.
The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter.” This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.
The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.
The want of those rules here has led to unequal evaluation of ballots in various respects. (“Should a county canvassing board count or not count a ‘dimpled chad’ where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree”). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.
The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.
An early case in our one person, one vote jurisprudence arose when a State accorded arbitrary and disparate treatment to voters in its different counties. Gray v. Sanders (1963). The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie (1969), where we invalidated a county-based procedure that diluted the influence of citizens in larger counties in the nominating process. There we observed that “[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.”
The State Supreme Court ratified this uneven treatment. It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary of State, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore. Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties.
In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, the so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernable by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernable by the machine, will have his vote counted even though it should have been read as an invalid ballot. The State Supreme Court’s inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way.
That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court’s decision thus gives no assurance that the recounts included in a final certification must be complete. Indeed, it is respondent’s submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court’s decision to permit this (noting “practical difficulties” may control outcome of election, but certifying partial Miami-Dade total nonetheless). This accommodation no doubt results from the truncated contest period established by the Florida Supreme Court in Bush I, at respondents’ own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.
In addition to these difficulties the actual process by which the votes were to be counted under the Florida Supreme Court’s decision raises further concerns. That order did not specify who would recount the ballots. The county canvassing boards were forced to pull together ad hoc teams comprised of judges from various Circuits who had no previous training in handling and interpreting ballots. Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount.
The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.
Given the Court’s assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has not been addressed, although {Florida Supreme Court} Chief Justice Wells called attention to the concern in his dissenting opinion.
Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. § 101.015 (2000).
The Supreme Court of Florida has said that the legislature intended the State’s electors to “participat[e] fully in the federal electoral process,” as provided in 3 U. S. C. § 5. That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.
Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. {In addition to 5 Justices in per curiam, add} (Souter, J., dissenting); (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. § 5, Justice Breyer’s proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an “appropriate” order authorized by Fla. Stat. § 102.168(8) (2000).
* * *
None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.
The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Pursuant to this Court’s Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith.
It is so ordered.
Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting.
The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, § 1, cl. 2. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion. * * * *
Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the “intent of the voter,” is to be determined rises to the level of a constitutional violation. We found such a violation when individual votes within the same State were weighted unequally, see, e.g., Reynolds v. Sims (1964), but we have never before called into question the substantive standard by which a State determines that a vote has been legally cast. And there is no reason to think that the guidance provided to the factfinders, specifically the various canvassing boards, by the “intent of the voter” standard is any less sufficient—or will lead to results any less uniform—than, for example, the “beyond a reasonable doubt” standard employed everyday by ordinary citizens in courtrooms across this country.
Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process. Of course, as a general matter, “[t]he interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Bain Peanut Co. of Tex. v. Pinson (1931) (Holmes, J.). If it were otherwise, Florida’s decision to leave to each county the determination of what balloting system to employ—despite enormous differences in accuracy—might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design.
Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority’s disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one’s vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature’s uniform general standard to be established.
In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines. It does so on the basis of the deadlines set forth in Title 3 of the United States Code. But, as I have already noted, those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted. As the majority notes, “[a] desire for speed is not a general excuse for ignoring equal protection guarantees.”
Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, did the Florida Supreme Court make any substantive change in Florida electoral law. Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts do—it decided the case before it in light of the legislature’s intent to leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general “intent of the voter” standard articulated by the state legislature, coupled with a procedure for ultimate review by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume—as I do—that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question.
What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
I respectfully dissent.
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Richardson v. Ramirez
418 U.S. 24 (1974)
Mr. Justice Rehnquist delivered the opinion of the Court.
The three individual respondents in this case were convicted of felonies and have completed the service of their respective sentences and paroles. They filed a petition for a writ of mandate in the Supreme Court of California to compel California county election officials to register them as voters. They claimed, on behalf of themselves and others similarly situated, that application to them of the provisions of the California Constitution and implementing statutes which disenfranchised persons convicted of an “infamous crime” denied them the right to equal protection of the laws under the Federal Constitution. The Supreme Court of California held that “as applied to all ex-felons whose terms of incarceration and parole have expired, the provisions of article II and article XX, section 11, of the California Constitution denying the right of suffrage to persons convicted of crime, together with the several sections of the Elections Code implementing that disqualification . . . violate the equal protection clause of the Fourteenth Amendment.” We granted certiorari.
I
Before reaching respondents’ constitutional challenge, the Supreme Court of California considered whether a decision reached by the three county clerks not to contest the action, together with their representation to the court that they would henceforth permit all ex-felons whose terms of incarceration and parole had expired to register and vote, rendered this case moot. That court decided that it did not. * * * *
As a practical matter, there can be no doubt that there is a spirited dispute between the parties in this Court as to the constitutionality of the California provisions disenfranchising ex-felons. * * * * The briefs of the parties before us indicate that the adverse alignment in the Supreme Court of California continues in this Court, and we therefore hold the case is not moot.
II
Unlike most claims under the Equal Protection Clause, for the decision of which we have only the language of the Clause itself as it is embodied in the Fourteenth Amendment, respondents’ claim implicates not merely the language of the Equal Protection Clause of § 1 of the Fourteenth Amendment, but also the provisions of the less familiar § 2 of the Amendment:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
(Emphasis supplied.)
Petitioner contends that the italicized language of § 2 expressly exempts from the sanction of that section disenfranchisement grounded on prior conviction of a felony. She goes on to argue that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment. This argument seems to us a persuasive one unless it can be shown that the language of § 2, “except for participation in rebellion, or other crime,” was intended to have a different meaning than would appear from its face.
The problem of interpreting the “intention” of a constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary number of States. The legislative history bearing on the meaning of the relevant language of § 2 is scant indeed; the framers of the Amendment were primarily concerned with the effect of reduced representation upon the States, rather than with the two forms of disenfranchisement which were exempted from that consequence by the language with which we are concerned here. Nonetheless, what legislative history there is indicates that this language was intended by Congress to mean what it says.
* * * *
Throughout the floor debates in both the House and the Senate, in which numerous changes of language in § 2 were proposed, the language “except for participation in rebellion, or other crime” was never altered. The language of § 2 attracted a good deal of interest during the debates, but most of the discussion was devoted to its foreseeable consequences in both the Northern and Southern States, and to arguments as to its necessity or wisdom. What little comment there was on the phrase in question here supports a plain reading of it.
* * * *
The debates in the Senate did not cover the subject as exhaustively as did the debates in the House, apparently because many of the critical decisions were made by the Republican Senators in an unreported series of caucuses off the floor. * * * *
Nonetheless, the occasional comments of Senators on the language in question indicate an understanding similar to that of the House members.
* * * *
Further light is shed on the understanding of those who framed and ratified the Fourteenth Amendment, and thus on the meaning of § 2, by the fact that at the time of the adoption of the Amendment, 29 States had provisions in their constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes.
More impressive than the mere existence of the state constitutional provisions disenfranchising felons at the time of the adoption of the Fourteenth Amendment is the congressional treatment of States readmitted to the Union following the Civil War. For every State thus readmitted, affirmative congressional action in the form of an enabling act was taken, and as a part of the readmission process the State seeking readmission was required to submit for the approval of the Congress its proposed state constitution. In March 1867, before any State was readmitted, Congress passed “An act to provide for the more efficient Government of the Rebel States,” the so-called Reconstruction Act. Act of Mar. 2, 1867, c. 153, 14 Stat. 428. Section 5 of the Reconstruction Act established conditions on which the former Confederate States would be readmitted to representation in Congress. It provided:
That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State . . . .
(Emphasis supplied.)
* * * *
A series of enabling acts in 1868 and 1870 admitted those States to representation in Congress. The Act admitting Arkansas, the first State to be so admitted, attached a condition to its admission. Act of June 22, 1868, c. 69, 15 Stat. 72. That Act provided:
“WHEREAS the people of Arkansas, in pursuance of the provisions of an act entitled ‘An act for the more efficient government of the rebel States,’ passed March second, eighteen hundred and sixty-seven, and the act supplementary thereto, have framed and adopted a constitution of State government, which is republican, and the legislature of said State has duly ratified the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen: Therefore,
“Be it enacted . . . That the State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said State: Provided, That any alteration of said constitution prospective in its effect may be made in regard to the time and place of residence of voters.”
The phrase “under laws equally applicable to all the inhabitants of said State” was introduced as an amendment to the House bill by Senator Drake of Missouri. Cong. Globe, 40th Cong., 2d Sess., 2600 (1868). Senator Drake’s explanation of his reason for introducing his amendment is illuminating. He expressed concern that without that restriction, Arkansas might misuse the exception for felons to disenfranchise Negroes:
“There is still another objection to the condition as expressed in the bill, and that is in the exception as to the punishment for crime. The bill authorizes men to be deprived of the right to vote ‘as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted.’ There is one fundamental defect in that, and that is that there is no requirement that the laws under which men shall be duly convicted of these crimes shall be equally applicable to all the inhabitants of the State. It is a very easy thing in a State to make one set of laws applicable to white men, and another set of laws applicable to colored men.”
The same “fundamental condition” as was imposed by the act readmitting Arkansas was also, with only slight variations in language, imposed by the Act readmitting North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, enacted three days later. Act of June 25, 1868, c. 70, 15 Stat. 73. That condition was again imposed by the Acts readmitting Virginia, Mississippi, Texas, and Georgia early in 1870. Act of Jan. 26, 1870, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363.
This convincing evidence of the historical understanding of the Fourteenth Amendment is confirmed by the decisions of this Court which have discussed the constitutionality of provisions disenfranchising felons. Although the Court has never given plenary consideration to the precise question of whether a State may constitutionally exclude some or all convicted felons from the franchise, we have indicated approval of such exclusions on a number of occasions. In two cases decided toward the end of the last century, the Court approved exclusions of bigamists and polygamists from the franchise under territorial laws of Utah and Idaho. Murphy v. Ramsey (1885); Davis v. Beason (1890). Much more recently we have strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision. In Lassiter v. Northampton County Board of Elections (1959), where we upheld North Carolina’s imposition of a literacy requirement for voting, the Court said:
Residence requirements, age, previous criminal record (Davis v. Beason) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters.
Still more recently, we have summarily affirmed two decisions of three-judge District Courts rejecting constitutional challenges to state laws disenfranchising convicted felons. Both District Courts relied on Green v. Board of Elections, cert. denied (1968), where the Court of Appeals for the Second Circuit held that a challenge to New York’s exclusion of convicted felons from the vote did not require the convening of a three-judge district court.
Despite this settled historical and judicial understanding of the Fourteenth Amendment’s effect on state laws disenfranchising convicted felons, respondents argue that our recent decisions invalidating other state-imposed restrictions on the franchise as violative of the Equal Protection Clause require us to invalidate the disenfranchisement of felons as well. They rely on such cases to support the conclusions of the Supreme Court of California that a State must show a “compelling state interest” to justify exclusion of ex-felons from the franchise and that California has not done so here.
As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment’s applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court. We do not think that the Court’s refusal to accept Mr. Justice Harlan’s position in his dissents in Reynolds v. Sims (1964), and Carrington v. Rash (1965), that § 2 is the only part of the Amendment dealing with voting rights, dictates an opposite result. We need not go nearly so far as Mr. Justice Harlan would to reach our conclusion, for we may rest on the demonstrably sound proposition that § 1 in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement. Nor can we accept respondents’ argument that because § 2 was made part of the Amendment “‘largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment,’” we must not look to it for guidance in interpreting § 1. It is as much a part of the Amendment as any of the other sections, and how it became a part of the Amendment is less important than what it says and what it means.
Pressed upon us by the respondents, and by amici curiae, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California’s present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.
We therefore hold that the Supreme Court of California erred in concluding that California may no longer, consistent with the Equal Protection Clause of the Fourteenth Amendment, exclude from the franchise convicted felons who have completed their sentences and paroles. The California court did not reach respondents’ alternative contention that there was such a total lack of uniformity in county election officials’ enforcement of the challenged state laws as to work a separate denial of equal protection, and we believe that it should have an opportunity to consider the claim before we address ourselves to it. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting.
The Court today holds that a State may strip ex-felons who have fully paid their debt to society of their fundamental right to vote without running afoul of the Fourteenth Amendment. This result is, in my view, based on an unsound historical analysis which already has been rejected by this Court. In straining to reach that result, I believe that the Court has also disregarded important limitations on its jurisdiction. For these reasons, I respectfully dissent.
I
{procedural discussion omitted}
II
Since the Court nevertheless reaches the merits of the constitutionality of California’s disenfranchisement of ex-felons, I find it necessary to register my dissent on the merits as well. The Court construes § 2 of the Fourteenth Amendment as an express authorization for the States to disenfranchise former felons. Section 2 does except disenfranchisement for “participation in rebellion, or other crime” from the operation of its penalty provision. As the Court notes, however, there is little independent legislative history as to the crucial words “or other crime”; the proposed § 2 went to a joint committee containing only the phrase “participation in rebellion” and emerged with “or other crime” inexplicably tacked on. In its exhaustive review of the lengthy legislative history of the Fourteenth Amendment, the Court has come upon only one explanatory reference for the “other crimes” provision – a reference which is unilluminating at best.
The historical purpose for § 2 itself is, however, relatively clear and in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance. There were two alternatives available – either to limit southern representation, which was unacceptable on a long-term basis, or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time. Section 2 of the Fourteenth Amendment was the resultant compromise. It put Southern States to a choice – enfranchise Negro voters or lose congressional representation.
The political motivation behind § 2 was a limited one. It had little to do with the purposes of the rest of the Fourteenth Amendment. As one noted commentator explained:
“It became a part of the Fourteenth Amendment largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment.” [I]t seems quite impossible to conclude that there was a clear and deliberate understanding in the House that § 2 was the sole source of national authority to protect voting rights, or that it expressly recognized the states’ power to deny or abridge the right to vote.”
It is clear that § 2 was not intended and should not be construed to be a limitation on the other sections of the Fourteenth Amendment. Section 2 provides a special remedy – reduced representation – to cure a particular form of electoral abuse – the disenfranchisement of Negroes. There is no indication that the framers of the provisions intended that special penalty to be the exclusive remedy for all forms of electoral discrimination. This Court has repeatedly rejected that rationale. See Reynolds v. Sims (1964); Carrington v. Rash (1965).
Rather, a discrimination to which the penalty provision of § 2 is inapplicable must still be judged against the Equal Protection Clause of § 1 to determine whether judicial or congressional remedies should be invoked. That conclusion is compelled by this Court’s holding in Oregon v. Mitchell (1970). Although § 2 excepts from its terms denial of the franchise not only to ex-felons but also to persons under 21 years of age, we held that the Congress, under § 5, had the power to implement the Equal Protection Clause by lowering the voting age to 18 in federal elections. * * * *
The Court’s references to congressional enactments contemporaneous to the adoption of the Fourteenth Amendment, such as the Reconstruction Act and the readmission statutes, are inapposite. They do not explain the purpose for the adoption of § 2 of the Fourteenth Amendment. They merely indicate that disenfranchisement for participation in crime was not uncommon in the States at the time of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement was excepted from the application of the special penalty provision of § 2. But because Congress chose to exempt one form of electoral discrimination from the reduction-of-representation remedy provided by § 2 does not necessarily imply congressional approval of this disenfranchisement. By providing a special remedy for disenfranchisement of a particular class of voters in § 2, Congress did not approve all election discriminations to which the § 2 remedy was inapplicable, and such discriminations thus are not forever immunized from evolving standards of equal protection scrutiny. Cf. Shapiro v. Thompson (1969). There is no basis for concluding that Congress intended by § 2 to freeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights prevalent at the time of the adoption of the Amendment. In fact, one form of disenfranchisement – one-year durational residence requirements – specifically authorized by the Reconstruction Act, one of the contemporaneous enactments upon which the Court relies to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional by this Court in Dunn v. Blumstein (1972).
Disenfranchisement for participation in crime, like durational residence requirements, was common at the time of the adoption of the Fourteenth Amendment. But “constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber.” We have repeatedly observed:
[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.
Harper v. Virginia Board of Elections (1966).
Accordingly, neither the fact that several States had ex-felon disenfranchisement laws at the time of the adoption of the Fourteenth Amendment, nor that such disenfranchisement was specifically excepted from the special remedy of § 2, can serve to insulate such disenfranchisement from equal protection scrutiny.
III
In my view, the disenfranchisement of ex-felons must be measured against the requirements of the Equal Protection Clause of § 1 of the Fourteenth Amendment. That analysis properly begins with the observation that because the right to vote “is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government,” Reynolds v. Sims, voting is a “fundamental” right. * * * * “[I]f a challenged statute grants the right to vote to some citizens and denies the franchise to others, ‘the Court must determine whether the exclusions are necessary to promote a compelling state interest.’” * * * *
I think it clear that the State has not met its burden of justifying the blanket disenfranchisement of former felons presented by this case. There is certainly no basis for asserting that ex-felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government. As the Secretary of State of California observed in his memorandum to the Court in support of respondents in this case:
“It is doubtful . . . whether the state can demonstrate either a compelling or rational policy interest in denying former felons the right to vote. The individuals involved in the present case are persons who have fully paid their debt to society. They are as much affected by the actions of government as any other citizens, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of the right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.”
It is argued that disenfranchisement is necessary to prevent vote frauds. Although the State has a legitimate and, in fact, compelling interest in preventing election fraud, the challenged provision is not sustainable on that ground. First, the disenfranchisement provisions are patently both overinclusive and underinclusive. The provision is not limited to those who have demonstrated a marked propensity for abusing the ballot by violating election laws. Rather, it encompasses all former felons and there has been no showing that ex-felons generally are any more likely to abuse the ballot than the remainder of the population. In contrast, many of those convicted of violating election laws are treated as misdemeanants and are not barred from voting at all. It seems clear that the classification here is not tailored to achieve its articulated goal, since it crudely excludes large numbers of otherwise qualified voters.
Moreover, there are means available for the State to prevent voting fraud which are far less burdensome on the constitutionally protected right to vote. * * * * [T]he State “has at its disposal a variety of criminal laws that are more than adequate to detect and deter whatever fraud may be feared.” The California court’s catalogue of that State’s penal sanctions for election fraud surely demonstrates that there are adequate alternatives to disenfranchisement. * * * *
Given the panoply of criminal offenses available to deter and to punish electoral misconduct, as well as the statutory reforms and technological changes which have transformed the electoral process in the last century, election fraud may no longer be a serious danger.
Another asserted purpose is to keep former felons from voting because their likely voting pattern might be subversive of the interests of an orderly society. Support for the argument that electors can be kept from the ballot box for fear they might vote to repeal or emasculate provisions of the criminal code, is drawn primarily from this Court’s decisions in Murphy v. Ramsey (1885), and Davis v. Beason (1890). In Murphy, the Court upheld the disenfranchisement of anyone who had ever entered into a bigamous or polygamous marriage and in Davis, the Court sanctioned, as a condition to the exercise of franchise, the requirement of an oath that the elector did not “teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy.” The Court’s intent was clear – “to withdraw all political influence from those who are practically hostile to” the goals of certain criminal laws.
To the extent Murphy and Davis approve the doctrine that citizens can be barred from the ballot box because they would vote to change the existing criminal law, those decisions are surely of minimal continuing precedential value. We have since explicitly held that such “differences of opinion cannot justify excluding [any] group from . . . ‘the franchise’:
“[I]f they are . . . residents, . . . they, as all other qualified residents, have a right to an equal opportunity for political representation. . . . ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.”
Although, in the last century, this Court may have justified the exclusion of voters from the electoral process for fear that they would vote to change laws considered important by a temporal majority, I have little doubt that we would not countenance such a purpose today. The process of democracy is one of change. Our laws are not frozen into immutable form, they are constantly in the process of revision in response to the needs of a changing society. The public interest, as conceived by a majority of the voting public, is constantly undergoing reexamination. This Court’s holding in Davis and Murphy that a State may disenfranchise a class of voters to “withdraw all political influence from those who are practically hostile” to the existing order, strikes at the very heart of the democratic process. A temporal majority could use such a power to preserve inviolate its view of the social order simply by disenfranchising those with different views. Voters who opposed the repeal of prohibition could have disenfranchised those who advocated repeal “to prevent persons from being enabled by their votes to defeat the criminal laws of the country.” Today, presumably those who support the legalization of marihuana could be barred from the ballot box for much the same reason. The ballot is the democratic system’s coin of the realm. To condition its exercise on support of the established order is to debase that currency beyond recognition. Rather than resurrect Davis and Murphy, I would expressly disavow any continued adherence to the dangerous notions therein expressed.
The public purposes asserted to be served by disenfranchisement have been found wanting in many quarters. When this suit was filed, 23 States allowed ex-felons full access to the ballot. Since that time, four more States have joined their ranks. Shortly after lower federal courts sustained New York’s and Florida’s disenfranchisement provisions, the legislatures repealed those laws. Congress has recently provided for the restoration of felons’ voting rights at the end of sentence or parole in the District of Columbia. D.C. Code (1973). The National Conference on Uniform State Laws, the American Law Institute, the National Probation and Parole Association, the National Advisory Commission on Criminal Justice Standards and Goals, the President’s Commission on Law Enforcement and the Administration of Justice, the California League of Women Voters, the National Democratic Party, and the Secretary of State of California have all strongly endorsed full suffrage rights for former felons.
The disenfranchisement of ex-felons had “its origin in the fogs and fictions of feudal jurisprudence and doubtless has been brought forward into modern statutes without fully realizing either the effect of its literal significance or the extent of its infringement upon the spirit of our system of government.” Byers v. Sun Savings Bank (Oklahoma 1914). I think it clear that measured against the standards of this Court’s modern equal protection jurisprudence, the blanket disenfranchisement of ex-felons cannot stand.
I respectfully dissent.
Check Your Understanding
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Notes
1. Chief Justice Earl Warren, writing for the Court in Reynolds v. Sims Court rejects the “federal analogy” relating to the United States Senate. Many political scientists view the United States Senate as being one of the “least representative representative bodies” in the world. The illustrative example compares Wyoming, the least populous state with fewer than 600,000 people in 2010, with California, the most populous state, having more than 37 million people in the 2010 census. Thus, in the United States Senate, a vote in Wyoming has more than 66 times the effect of a vote in California.
Note that Article V of the Constitution, regarding the process for Constitutional amendment, not only exempted amendments regarding slavery until 1808, but also provides “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
2. Bush v. Gore raises more questions than it answers. One still-debated question is whether the United States Supreme Court selected the winner of the 2000 election. The per curiam opinion’s final section seeks to dispel this view; is it convincing?
3. After Richardson v. Ramirez, what are the strategies, both constitutional and otherwise, that advocates for ending felony disenfranchisement might pursue?
III. Travel
Attorney Gen. of New York v. Soto-Lopez
476 U.S. 898 (1986)
Justice Brennan announced the judgment of the Court and delivered an opinion, in which Justice Marshall, Justice Blackmun, and Justice Powell join.
The question presented by this appeal is whether a preference in civil service employment opportunities offered by the State of New York solely to resident veterans who lived in the State at the time they entered military service violates the constitutional rights of resident veterans who lived outside the State when they entered military service.
I
The State of New York, through its Constitution, N. Y. Const., Art. V, 6, and its Civil Service Law, N. Y. Civ. Serv. Law 85 (McKinney 1983 and Supp. 1986), grants a civil service employment preference, in the form of points added to examination scores, to New York residents who are honorably discharged veterans of the United States Armed Forces, who served during time of war, and who were residents of New York when they entered military service. This preference may be exercised only once, either for original hiring or for one promotion. N. Y. Const., Art. V, § 6.
Appellees, Eduardo Soto-Lopez and Eliezer Baez-Hernandez, are veterans of the United States Army and long-time residents of New York. Both men claim to have met all the eligibility criteria for the New York State civil service preference except New York residence when they entered the Army. Both Soto-Lopez and Baez-Hernandez passed New York City civil service examinations, but were denied the veterans’ preference by the New York City Civil Service Commission because they were residents of Puerto Rico at the time they joined the military. Appellees sued the city in Federal District Court, alleging that the requirement of residence when they joined the military violated the Equal Protection Clause of the Fourteenth Amendment and the constitutionally protected right to travel. The Attorney General of the State of New York intervened as a defendant.
The District Court dismissed appellees’ complaint, holding that this Court’s summary affirmance in August v. Bronstein (1974), a case in which a three-judge panel upheld against equal protection and right-to-travel challenges the same sections of the New York State Constitution and Civil Service Law at issue in the instant action, compelled that result. The Court of Appeals for the Second Circuit reversed. It concluded that August had implicitly been overruled by our more recent decision in Zobel v. Williams (1982), and held that the prior residence requirement of the New York civil service preference offends both the Equal Protection Clause and the right to travel. The Court of Appeals remanded with various instructions, including the direction that the District Court permanently enjoin the defendants from denying bonus points to otherwise qualified veterans who were not residents of New York at the time they entered the military service. We noted probable jurisdiction of this appeal of the Attorney General of New York. We affirm.
II
“‘[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.’” See, e. g., Passenger Cases (1849) (Taney, C. J., dissenting); Crandall v. Nevada (1868); Paul v. Virginia (1869); Edwards v. California (1941); Kent v. Dulles (1958); Shapiro v. Thompson (1969); Oregon v. Mitchell (1970); Memorial Hospital v. Maricopa County (1974). And, it is clear that the freedom to travel includes the “freedom to enter and abide in any State in the Union.”
The textual source of the constitutional right to travel, or, more precisely, the right of free interstate migration, though, has proved elusive. It has been variously assigned to the Privileges and Immunities Clause of Art. IV, to the Commerce Clause, and to the Privileges or Immunities Clause of the Fourteenth Amendment. The right has also been inferred from the federal structure of government adopted by our Constitution. However, in light of the unquestioned historic acceptance of the principle of free interstate migration, and of the important role that principle has played in transforming many States into a single Nation, we have not felt impelled to locate this right definitively in any particular constitutional provision. Whatever its origin, the right to migrate is firmly established and has been repeatedly recognized by our cases.
A state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses “‘any classification which serves to penalize the exercise of that right.’” Our right-to-migrate cases have principally involved the latter, indirect manner of burdening the right. More particularly, our recent cases have dealt with state laws that, by classifying residents according to the time they established residence, resulted in the unequal distribution of rights and benefits among otherwise qualified bona fide residents.
Because the creation of different classes of residents raises equal protection concerns, we have also relied upon the Equal Protection Clause in these cases. Whenever a state law infringes a constitutionally protected right, we undertake intensified equal protection scrutiny of that law. See, e. g., Cleburne v. Cleburne Living Center, Inc. (1985); Plyler v. Doe (1982); San Antonio Independent School District v. Rodriguez (1973); Shapiro v. Thompson (1973). Thus, in several cases, we asked expressly whether the distinction drawn by the State between older and newer residents burdens the right to migrate. Where we found such a burden, we required the State to come forward with a compelling justification. See, e. g., Shapiro v. Thompson. In other cases, where we concluded that the contested classifications did not survive even rational-basis scrutiny, we had no occasion to inquire whether enhanced scrutiny was appropriate. The analysis in all of these cases, however, is informed by the same guiding principle – the right to migrate protects residents of a State from being disadvantaged, or from being treated differently, simply because of the timing of their migration, from other similarly situated residents.
New York’s eligibility requirements for its civil service preference conditions a benefit on New York residence at a particular past time in an individual’s life. It favors those veterans who were New York residents at a past fixed point over those who were not New York residents at the same point in their lives. Our cases have established that similar methods of favoring “prior” residents over “newer” ones, such as limiting a benefit to those who resided in the State by a fixed past date, granting incrementally greater benefits for each year of residence, and conditioning eligibility for certain benefits on completion of a fixed period of residence, warrant careful judicial review. But, our cases have also established that only where a State’s law “‘operates to penalize those persons . . . who have exercised their constitutional right of interstate migration’” is heightened scrutiny triggered.
Our task in this case, then, is first to determine whether New York’s restriction of its civil service preference to veterans who entered the Armed Forces while residing in New York operates to penalize those persons who have exercised their right to migrate. If we find that it does, appellees must prevail unless New York can demonstrate that its classification is necessary to accomplish a compelling state interest.
A
In previous cases, we have held that even temporary deprivations of very important benefits and rights can operate to penalize migration. For example, in Shapiro {v. Thompson} * * * * we found that recently arrived indigent residents were deprived of life’s necessities by durational residence requirements for welfare assistance and for free, nonemergency medical care, respectively, which were available to other poor residents. * * * * The fact that these deprivations were temporary did not offset the Court’s conclusions that they were so severe and worked such serious inequities among otherwise qualified residents that they effectively penalized new residents for the exercise of their rights to migrate.
More recently, in Hooper v. Bernalillo (1985), and Zobel v. Williams (1982), we struck down state laws that created permanent distinctions among residents based on the length or timing of their residence in the State. At issue in Hooper was a New Mexico statute that granted a tax exemption to Vietnam veterans who resided in the State before May 8, 1976. Zobel concerned an Alaska statute granting residents one state mineral income dividend unit for each year of residence subsequent to 1959. Because we employed rational-basis equal protection analysis in those cases, we did not face directly the question whether the contested laws operated to penalize interstate migration. Nonetheless, the conclusion that they did penalize migration may be inferred from our determination that “the Constitution will not tolerate a state benefit program that ‘creates fixed, permanent distinctions . . . between . . . classes of concededly bona fide residents, based on how long they have been in the State.’”
Soto-Lopez and Baez-Hernandez have been denied a significant benefit that is granted to all veterans similarly situated except for State of residence at the time of their entry into the military. While the benefit sought here may not rise to the same level of importance as the necessities of life and the right to vote, it is unquestionably substantial. The award of bonus points can mean the difference between winning or losing civil service employment, with its attendant job security, decent pay, and good benefits. Furthermore, appellees have been permanently deprived of the veterans’ credits that they seek. As the Court of Appeals observed: “The veteran’s ability to satisfy the New York residence requirement is . . . fixed. He either was a New York resident at the time of his initial induction or he was not; he cannot earn a change in status.” Such a permanent deprivation of a significant benefit, based only on the fact of nonresidence at a past point in time, clearly operates to penalize appellees for exercising their rights to migrate.
B
New York offers four interests in justification of its fixed point residence requirement: (1) the encouragement of New York residents to join the Armed Services; (2) the compensation of residents for service in time of war by helping these veterans reestablish themselves upon coming home; (3) the inducement of veterans to return to New York after wartime service; and (4) the employment of a “uniquely valuable class of public servants” who possess useful experience acquired through their military service. All four justifications fail to withstand heightened scrutiny on a common ground – each of the State’s asserted interests could be promoted fully by granting bonus points to all otherwise qualified veterans. New York residents would still be encouraged to join the services. Veterans who served in time of war would be compensated. And, both former New Yorkers and prior residents of other States would be drawn to New York after serving the Nation, thus providing the State with an even larger pool of potentially valuable public servants.
* * * * Because New York could accomplish its purposes without penalizing the right to migrate by awarding special credits to all qualified veterans, the State is not free to promote its interests through a preference system that incorporates a prior residence requirement.
Two of New York’s asserted interests have additional weaknesses. First, the availability of the preference to inductees as well as enlistees undercuts the State’s contention that one of the most important purposes of the veterans’ credit is to encourage residents to enlist in the services. Second, the fact that eligibility for bonus points is not limited to the period immediately following a veteran’s return from war casts doubt on New York’s asserted purpose of easing the transition from wartime military conditions to civilian life, for, presumably, a veteran of the Korean War could take a civil service examination and receive the bonus points tomorrow, 30 years after his homecoming. The State’s failure to limit the credit to enlistees recently returned to New York from war strongly suggests that the State’s principal interest is simply in rewarding its residents for service to their country.
Compensating veterans for their past sacrifices by providing them with advantages over nonveteran citizens is a long-standing policy of our Federal and State Governments. See, e. g., Personnel Administrator of Massachusetts v. Feeney (1979). Nonetheless, this policy, even if deemed compelling, does not support a distinction between resident veterans based on their residence when they joined the military. Members of the Armed Forces serve the Nation as a whole. While a service person’s home State doubtlessly derives indirect benefit from his or her service, the State benefits equally from the contributions to our national security made by other service personnel. “Permissible discriminations between persons” must be correlated to “their relevant characteristics.” Zobel (Brennan, J., concurring). Because prior residence has only a tenuous relation, if any, to the benefit New York receives from all Armed Forces personnel, the goal of rewarding military service offers no support for New York’s fixed point residence requirement.
IV
In sum, the provisions of New York’s Constitution, Art. V, § 6, and Civil Service Law 85, which limit the award of a civil service employment preference to resident veterans who lived in New York at the time they entered the Armed Forces, effectively penalize otherwise qualified resident veterans who do not meet the prior residence requirement for their exercise of the right to migrate. The State has not met its heavy burden of proving that it has selected a means of pursuing a compelling state interest which does not impinge unnecessarily on constitutionally protected interests. Consequently, we conclude that New York’s veterans’ preference violates appellees’ constitutionally protected rights to migrate and to equal protection of the law.
Once veterans establish bona fide residence in a State, they “become the State’s ‘own’ and may not be discriminated against solely on the basis of [the date of] their arrival in the State.” For as long as New York chooses to offer its resident veterans a civil service employment preference, the Constitution requires that it do so without regard to residence at the time of entry into the services. Accordingly, the judgment of the Court of Appeals is
Affirmed.
Justice O’Connor, with whom Justice Rehnquist and Justice Stevens join, dissenting.
The Court today holds unconstitutional the preference in public employment opportunities New York offers to resident wartime veterans who resided in New York when they entered military service. Because I believe that New York’s veterans’ preference scheme is not constitutionally offensive under the Equal Protection Clause, does not penalize some free-floating “right to migrate,” and does not violate the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution, I dissent.
I
The plurality’s constitutional analysis runs generally as follows: because the classification imposed by New York’s limited, one-time veterans’ civil service preference “penalizes” appellees’ constitutional “right to migrate,” the preference program must be subjected to heightened scrutiny, which it does not survive because it is insufficiently narrowly tailored to serve its asserted purposes. On the strength of this reasoning, the plurality concludes that the preference program violates both appellees’ constitutional “right to migrate” and their right to equal protection of the law, although it does not make clear how much of its analysis is necessary or sufficient to find a violation of the “right to migrate” independently of an Equal Protection Clause violation.
In pursuing this new dual analysis, the plurality simply rejects the equal protection approach the Court has previously employed in similar cases, without bothering to explain why its novel use of both “right to migrate” analysis and strict equal protection scrutiny is more appropriate, necessary or doctrinally coherent. Indeed, the plurality does not even feel “impelled to locate [‘the right to migrate’] definitively in any particular constitutional provision,” despite the fact that its ruling rests in major part on its determination that the preference scheme penalizes that right. The plurality’s refusal to amplify its opinion further is even more remarkable given that the Court is overturning the very provisions of New York’s Constitution and its Civil Service Law which it upheld against the same challenges just 12 years ago. See August v. Bronstein, summarily aff’d (1974).
The Chief Justice {concurring} finds it unnecessary to address the proper analytical role of the “right to travel” in this case because he believes that the New York scheme cannot survive rational basis scrutiny purely as a matter of equal protection law. Yet The Chief Justice’s position depends in part on the assumption that New York’s desire “to reward citizens for past contributions . . . is not a legitimate state purpose.” This assumption is not required by anything in the Equal Protection Clause; rather, “a full reading of Shapiro v. Thompson (1969) * * * * reveals [that] the Court has rejected this objective only when its implementation would abridge an interest in interstate travel or migration.”
* * * * I also continue to believe that a State’s desire to compensate its citizens for their prior contributions is “neither inherently invidious nor irrational,” either under the Court’s “right to migrate” or under some undefined, substantive component of the Equal Protection Clause. This case presents one of those instances in which the recognition of state citizens’ past sacrifices constitutes a valid state interest that does not infringe any constitutionally protected interest * * * *
II
In my view, the New York veterans’ preference scheme weathers constitutional scrutiny under any of the theories propounded by the Court. The plurality acknowledges that heightened scrutiny is appropriate only if the statutory classification “penalize[s],” “actually deters,” or is primarily intended to “imped[e]” the exercise of the right to travel. * * * *
The New York law certainly does not directly restrict or burden appellees’ freedom to move to New York and to establish residence there by imposing discriminatory fees, taxes, or other direct restraints. Cf. The Passenger Cases (1849). The New York preference program does not permanently deprive appellees of the right to participate in some fundamental or even “significant” activity, for “public employment is not a constitutional right . . . and the States have wide discretion in framing employee qualifications.” Personnel Administrator of Massachusetts v. Feeney (1979). Nor does the program indirectly penalize migration by depriving the newcomers of fundamental rights or essential governmental services until they have resided in the State for a set period of time.
Finally, the New York scheme does not effectively penalize those who exercise their fundamental right to settle in the State of their choice by requiring newcomers to accept a status inferior to that of all oldtime residents of New York upon their arrival. Those veterans who were not New York residents when they joined the United States Armed Forces, who subsequently move to New York, and who endeavor to secure civil service employment are treated exactly the same as the vast majority of New York citizens; they are in no sense regarded as “second-class citizens” when compared with the vast majority of New Yorkers or even the majority of the candidates against whom they must compete in obtaining civil employment. To the extent that persons such as appellees labor under any practical disability, it is a disability that they share in equal measure with countless other New York residents, including New York residents who joined the Armed Forces from New York but are ineligible for the veterans’ preference for other reasons.
The only persons who arguably have an advantage based on their prior residency in New York in relation to persons in appellees’ position are a discrete group of veterans who joined the Armed Forces while New York residents, who served during wartime, who returned to New York, and who elected to seek public employment. Even that group does not enjoy an unqualified advantage over appellees based on their prior residence. New York’s veterans’ preference scheme requires that veterans satisfy a number of preconditions, of which prior residency is only one, before they qualify for the preference. Moreover, the preference only increases the possibility of securing a civil service appointment; it does not guarantee it. Those newly arrived veterans who achieve a sufficiently high score on the exam may not be disadvantaged at all by the preference program; conversely, the chances of those who receive a very low score may not be affected by the fact that their competitors received bonus points. Finally, the bonus program is a one-time benefit. Veterans who join the service in New York, who satisfy the other statutory requirements, and who achieve a sufficiently high score on the exam to bring them within range of securing employment may only use the bonus points on one examination for appointment and in one job for promotion. Thus, persons such as appellees are not forced to labor under a “continuous disability” by comparison even to this discrete group of New York citizens.
Certainly the New York veterans’ preference program imposes a less direct burden on a less “significant” interest than many resident-preference programs that this Court has upheld without difficulty. For example, this Court has summarily affirmed certain state residency requirements for state college tuition rates, Sturgis v. Washington (1973), and a limited eligibility statute in New York for scholarship assistance, Spatt v. New York (1973), even though those requirements constituted a potentially prohibitive burden on access to “important” educational opportunities, San Antonio Independent School District v. Rodriguez (1973). The Court has also upheld a 1-year durational residence requirement for eligibility to obtain a divorce in state courts, Sosna v. Iowa, even though the right to terminate a marriage has been deemed in some sense “fundamental.” See Boddie v. Connecticut (1971).
In sum, finding that this scheme in theory or practical effect constitutes a “penalty” on appellees’ fundamental right to settle in New York or on their “right to migrate” seems to me ephemeral, and completely unnecessary to safeguard the constitutional purpose of “maintaining a Union rather than a mere ‘league of States.’” Thus, heightened scrutiny, either under the “right to migrate” or the Equal Protection Clause is inappropriate.
Under rational basis review, New York’s program plainly passes constitutional muster. New York contends that its veterans’ employment preference serves as an expression of gratitude to veterans who entered the service as New York residents. Even the plurality acknowledges the legitimacy of this state purpose. Indeed, it is difficult to impeach this interest, for “[o]ur country has a longstanding policy of compensating veterans for their past contributions by providing them with numerous advantages.” * * * *
I have difficulty believing that the veterans’ preference scheme employed by New York does not rationally relate to this legitimate state interest. I had certainly thought a State could award a medal to all New York veterans of designated wars, or that it could erect memorials in honor of certain residents returning from particular armed conflicts; it is hardly irrational to employ a means which gives certain returning wartime veterans a more tangible and useful expression of gratitude by way of employment preferences. I also find it hard to credit the idea that the Equal Protection Clause requires New York to reward the sacrifices of all those who joined the Armed Forces from other States and came to reside in New York if it wishes to reward the service of those who represented New York in the Armed Forces. Certainly those veterans who represented other States in the military aided New York by aiding the Nation, and suffered in equal measure with New York veterans, but that is not the issue. New York is not expressing gratitude for the prior resident’s service to, and sacrifice for, the Nation as much as it is attempting to say “thank you” to those who personified New York’s sacrifice and effort to “do its part” in supporting this Nation’s war efforts. The prior residence of the individual seeking the statutory benefit clearly is a “relevant characteristic” to this legitimate and longstanding state interest and is one which has a manifest relation to the furtherance of that interest.
* * * * The modest scheme at issue here does not penalize in a constitutional sense veterans who joined the Armed Forces in other States for choosing to eventually settle in New York, and does not deny them equal protection. I would reverse the judgment of the Court of Appeals for the Second Circuit.
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Saenz v. Roe
526 U.S. 489 (1999)
Justice Stevens delivered the Opinion of the Court.
In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limits the amount payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family’s prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination.
I
California is not only one of the largest, most populated, and most beautiful States in the Nation; it is also one of the most generous. Like all other States, California has participated in several welfare programs authorized by the Social Security Act and partially funded by the Federal Government. Its programs, however, provide a higher level of benefits and serve more needy citizens than those of most other States. In one year the most expensive of those programs, Aid to Families with Dependent Children (AFDC), which was replaced in 1996 with Temporary Assistance to Needy Families (TANF), provided benefits for an average of 2,645,814 persons per month at an annual cost to the State of \$2.9 billion. In California the cash benefit for a family of two–a mother and one child–is \$456 a month, but in the neighboring State of Arizona, for example, it is only \$275.
In 1992, in order to make a relatively modest reduction in its vast welfare budget, the California Legislature enacted § 11450.03 of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence. Because in 1992 a state program either had to conform to federal specifications or receive a waiver from the Secretary of Health and Human Services in order to qualify for federal reimbursement, § 11450.03 required approval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to grant such approval.
On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the Eastern District of California challenging the constitutionality of the durational residency requirement in § 11450.03. Each plaintiff alleged that she had recently moved to California to live with relatives in order to escape abusive family circumstances. One returned to California after living in Louisiana for seven years, the second had been living in Oklahoma for six weeks and the third came from Colorado. Each alleged that her monthly AFDC grant for the ensuing 12 months would be substantially lower under § 11450.03 than if the statute were not in effect. Thus, the former residents of Louisiana and Oklahoma would receive \$190 and \$341 respectively for a family of three even though the full California grant was \$641; the former resident of Colorado, who had just one child, was limited to \$280 a month as opposed to the full California grant of \$504 for a family of two.
The District Court issued a temporary restraining order and, after a hearing, preliminarily enjoined implementation of the statute. District Judge Levi found that the statute “produces substantial disparities in benefit levels and makes no accommodation for the different costs of living that exist in different states.” Relying primarily on our decisions in Shapiro v. Thompson (1969), and Zobel v. Williams (1982), he concluded that the statute placed “a penalty on the decision of new residents to migrate to the State and be treated on an equal basis with existing residents.” In his view, if the purpose of the measure was to deter migration by poor people into the State, it would be unconstitutional for that reason. And even if the purpose was only to conserve limited funds, the State had failed to explain why the entire burden of the saving should be imposed on new residents. The Court of Appeals summarily affirmed for the reasons stated by the District Judge.
We granted the State’s petition for certiorari. We were, however, unable to reach the merits because the Secretary’s approval of § 11450.03 had been invalidated in a separate proceeding, and the State had acknowledged that the Act would not be implemented without further action by the Secretary. We vacated the judgment and directed that the case be dismissed. Anderson v. Green (1995). Accordingly, § 11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 PRWORA, 110 Stat. 2105.
PRWORA replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a block grant under TANF to “apply to a family the rules (including benefit amounts) of the [TANF] program … of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months.” With this federal statutory provision in effect, California no longer needed specific approval from the Secretary to implement § 11450.03. The California Department of Social Services therefore issued an “All County Letter” announcing that the enforcement of § 11450.03 would commence on April 1, 1997.
The All County Letter clarifies certain aspects of the statute. Even if members of an eligible family had lived in California all of their lives, but left the State “on January 29th, intending to reside in another state, and returned on April 15th,” their benefits are determined by the law of their State of residence from January 29 to April 15, assuming that that level was lower than California’s. Moreover, the lower level of benefits applies regardless of whether the family was on welfare in the State of prior residence and regardless of the family’s motive for moving to California. The instructions also explain that the residency requirement is inapplicable to families that recently arrived from another country.
II
On April 1, 1997, the two respondents filed this action in the Eastern District of California making essentially the same claims asserted by the plaintiffs in Anderson v. Green, but also challenging the constitutionality of PRWORA’s approval of the durational residency requirement. As in Green, the District Court issued a temporary restraining order and certified the case as a class action. The Court also advised the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question, but she did not seek to intervene or to file an amicus brief. Reasoning that PRWORA permitted, but did not require, States to impose durational residency requirements, Judge Levi concluded that the existence of the federal statute did not affect the legal analysis in his prior opinion in Green.
He did, however, make certain additional comments on the parties’ factual contentions. He noted that the State did not challenge plaintiffs’ evidence indicating that, although California benefit levels were the sixth highest in the Nation in absolute terms, when housing costs are factored in, they rank 18th; that new residents coming from 43 States would face higher costs of living in California; and that welfare benefit levels actually have little, if any, impact on the residential choices made by poor people. On the other hand, he noted that the availability of other programs such as homeless assistance and an additional food stamp allowance of \$1 in stamps for every \$3 in reduced welfare benefits partially offset the disparity between the benefits for new and old residents. Notwithstanding those ameliorating facts, the State did not disagree with plaintiffs’ contention that § 11450.03 would create significant disparities between newcomers and welfare recipients who have resided in the State for over one year.
The State relied squarely on the undisputed fact that the statute would save some \$10.9 million in annual welfare costs–an amount that is surely significant even though only a relatively small part of its annual expenditures of approximately \$2.9 billion for the entire program. It contended that this cost saving was an appropriate exercise of budgetary authority as long as the residency requirement did not penalize the right to travel. The State reasoned that the payment of the same benefits that would have been received in the State of prior residency eliminated any potentially punitive aspects of the measure. Judge Levi concluded, however, that the relevant comparison was not between new residents of California and the residents of their former States, but rather between the new residents and longer term residents of California. He therefore again enjoined the implementation of the statute.
Without finally deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. It agreed with the District Court’s view that the passage of PRWORA did not affect the constitutional analysis, that respondents had established a probability of success on the merits and that class members might suffer irreparable harm if § 11450.03 became operative. Although the decision of the Court of Appeals is consistent with the views of other federal courts that have addressed the issue, we granted certiorari because of the importance of the case. We now affirm.
III
The word “travel” is not found in the text of the Constitution. Yet the “constitutional right to travel from one State to another” is firmly embedded in our jurisprudence. Indeed, as Justice Stewart reminded us in Shapiro v. Thompson (1969), the right is so important that it is “assertable against private interference as well as governmental action … a virtually unconditional personal right, guaranteed by the Constitution to us all.” (concurring opinion).
In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. Without pausing to identify the specific source of the right, we began by noting that the Court had long “recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” We squarely held that it was “constitutionally impermissible” for a State to enact durational residency requirements for the purpose of inhibiting the migration by needy persons into the State. We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause “unless shown to be necessary to promote a compelling governmental interest,” and that no such showing had been made.
In this case California argues that § 11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, instead of being subjected to the strictest scrutiny, the statute should be upheld if it is supported by a rational basis and that the State’s legitimate interest in saving over \$10 million a year satisfies that test. Although the United States did not elect to participate in the proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae in this Court. It has advanced the novel argument that the enactment of PRWORA allows the States to adopt a “specialized choice-of-law-type provision” that “should be subject to an intermediate level of constitutional review,” merely requiring that durational residency requirements be “substantially related to an important governmental objective.” The debate about the appropriate standard of review, together with the potential relevance of the federal statute, persuades us that it will be useful to focus on the source of the constitutional right on which respondents rely.
IV
The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.
It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in Edwards v. California (1941), which invalidated a state law that impeded the free interstate passage of the indigent. We reaffirmed that right in United States v. Guest (1966), which afforded protection to the “ ‘right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.’ ” Given that § 11450.03 imposed no obstacle to respondents’ entry into California, we think the State is correct when it argues that the statute does not directly impair the exercise of the right to free interstate movement. For the purposes of this case, therefore, we need not identify the source of that particular right in the text of the Constitution. The right of “free ingress and regress to and from” neighboring States, which was expressly mentioned in the text of the Articles of Confederation, may simply have been “conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.”
The second component of the right to travel is, however, expressly protected by the text of the Constitution. The first sentence of Article IV, § 2, provides:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Thus, by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the “Privileges and Immunities of Citizens in the several States” that he visits. This provision removes “from the citizens of each State the disabilities of alienage in the other States.” Paul v. Virginia (1869). * * * * It provides important protections for nonresidents who enter a State whether to obtain employment, to procure medical services, or even to engage in commercial shrimp fishing. Those protections are not “absolute,” but the Clause “does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, or to enroll in the state university, but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for “the ‘citizen of State A who ventures into State B’ to settle there and establish a home.” Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that State.
What is at issue in this case, then, is this third aspect of the right to travel–the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. That additional source of protection is plainly identified in the opening words of the Fourteenth Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ….”
Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” * * * *
That newly arrived citizens “have two political capacities, one state and one federal,” adds special force to their claim that they have the same rights as others who share their citizenship. Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more categorical than that articulated in Shapiro, but it is surely no less strict.
V
Because this case involves discrimination against citizens who have completed their interstate travel, the State’s argument that its welfare scheme affects the right to travel only “incidentally” is beside the point. * * * *
It is undisputed that respondents and the members of the class that they represent are citizens of California and that their need for welfare benefits is unrelated to the length of time that they have resided in California. We thus have no occasion to consider what weight might be given to a citizen’s length of residence if the bona fides of her claim to state citizenship were questioned. Moreover, because whatever benefits they receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other States to establish residency for just long enough to acquire some readily portable benefit, such as a divorce or a college education, that will be enjoyed after they return to their original domicile.
The classifications challenged in this case–and there are many–are defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the disfavored class members. * * * *
These classifications may not be justified by a purpose to deter welfare applicants from migrating to California for three reasons. First, although it is reasonable to assume that some persons may be motivated to move for the purpose of obtaining higher benefits, the empirical evidence reviewed by the District Judge, which takes into account the high cost of living in California, indicates that the number of such persons is quite small–surely not large enough to justify a burden on those who had no such motive. Second, California has represented to the Court that the legislation was not enacted for any such reason. Third, even if it were, as we squarely held in Shapiro v. Thompson (1969), such a purpose would be unequivocally impermissible.
Disavowing any desire to fence out the indigent, California has instead advanced an entirely fiscal justification for its multitiered scheme. The enforcement of § 11450.03 will save the State approximately \$10.9 million a year. The question is not whether such saving is a legitimate purpose but whether the State may accomplish that end by the discriminatory means it has chosen. An evenhanded, across-the-board reduction of about 72 cents per month for every beneficiary would produce the same result. But our negative answer to the question does not rest on the weakness of the State’s purported fiscal justification. It rests on the fact that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: “That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence.” It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence. Thus § 11450.03 is doubly vulnerable: Neither the duration of respondents’ California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State’s interest in making an equitable allocation of the funds to be distributed among its needy citizens. * * * *
VI
The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of § 11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment. * * * *
* * *
Citizens of the United States, whether rich or poor, have the right to choose to be citizens “of the State wherein they reside.” U.S. Const., Amdt. 14, § 1. The States, however, do not have any right to select their citizens. The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo put it, “framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.”
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Chief Justice Rehnquist, with whom Justice Thomas joins, dissenting.
The Court today breathes new life into the previously dormant Privileges or Immunities Clause of the Fourteenth Amendment—a Clause relied upon by this Court in only one other decision, Colgate v. Harvey (1935), overruled five years later by Madden v. Kentucky (1940). It uses this Clause to strike down what I believe is a reasonable measure falling under the head of a “good-faith residency requirement.” Because I do not think any provision of the Constitution—and surely not a provision relied upon for only the second time since its enactment 130 years ago—requires this result, I dissent.
Much of the Court’s opinion is unremarkable and sound. The right to travel clearly embraces the right to go from one place to another, and prohibits States from impeding the free interstate passage of citizens. * * * * Indeed, for most of this country’s history, what the Court today calls the first “component” of the right to travel was the entirety of this right. * * * * {T}he traditional conception of the right to travel is simply not an issue in this case.
I also have no difficulty with aligning the right to travel with the protections afforded by the Privileges and Immunities Clause of Article IV, § 2, to nonresidents who enter other States “intending to return home at the end of [their] journey.” Nonresident visitors of other States should not be subject to discrimination solely because they live out of State. Like the traditional right-to-travel guarantees discussed above, however, this Clause has no application here, because respondents expressed a desire to stay in California and become citizens of that State. * * * *
Finally, I agree with the proposition that a “citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” Slaughter-House Cases (1873).
But I cannot see how the right to become a citizen of another State is a necessary “component” of the right to travel, or why the Court tries to marry these separate and distinct rights. A person is no longer “traveling” in any sense of the word when he finishes his journey to a State which he plans to make his home. Indeed, under the Court’s logic, the protections of the Privileges or Immunities Clause recognized in this case come into play only when an individual stops traveling with the intent to remain and become a citizen of a new State. The right to travel and the right to become a citizen are distinct, their relationship is not reciprocal, and one is not a “component” of the other. Indeed, the same dicta from the Slaughter-House Cases quoted by the Court actually treats the right to become a citizen and the right to travel as separate and distinct rights under the Privileges or Immunities Clause of the Fourteenth Amendment. At most, restrictions on an individual’s right to become a citizen indirectly affect his calculus in deciding whether to exercise his right to travel in the first place, but such an attenuated and uncertain relationship is no ground for folding one right into the other. * * * *
The Court tries to distinguish education and divorce benefits by contending that the welfare payment here will be consumed in California, while a college education or a divorce produces benefits that are “portable” and can be enjoyed after individuals return to their original domicile. But this “you can’t take it with you” distinction is more apparent than real, and offers little guidance to lower courts who must apply this rationale in the future. Welfare payments are a form of insurance, giving impoverished individuals and their families the means to meet the demands of daily life while they receive the necessary training, education, and time to look for a job. The cash itself will no doubt be spent in California, but the benefits from receiving this income and having the opportunity to become employed or employable will stick with the welfare recipient if they stay in California or go back to their true domicile. Similarly, tuition subsidies are “consumed” in-state but the recipient takes the benefits of a college education with him wherever he goes. A welfare subsidy is thus as much an investment in human capital as is a tuition subsidy, and their attendant benefits are just as “portable.” More importantly, this foray into social economics demonstrates that the line drawn by the Court borders on the metaphysical, and requires lower courts to plumb the policies animating certain benefits like welfare to define their “essence” and hence their “portability.” As this Court wisely recognized almost 30 years ago, “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.” Dandridge v. Williams (1970). * * * *
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Notes
1. Be prepared to discuss the right to travel as both a privileges or immunities clause issue and equal protection clause issue under the Fourteenth Amendment.
2. Be prepared to discuss the issue of portable and non-portable benefits.
3. Does the Fourteenth Amendment’s protection for the right to travel include rights for a person who relocates from Long Island City, Queens, New York (LIC) to Buffalo in Erie County, New York, about 400 miles? What about between LIC and Erie, Pennsylvania, about 436 miles? What about between LIC and Fort Lee, New Jersey, about 12 miles?
The Slaughter-House Cases
83 U.S. (16 Wall.) 36 (1873)
Mr. Justice Miller delivered the Opinion of the Court.
These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State.
The cases * * * * were all decided by the Supreme Court of Louisiana in favor of the Slaughter-House Company, as we shall hereafter call it for the sake of brevity, and these writs are brought to reverse those decisions. * * * *
The statute thus assailed as unconstitutional was passed March 8th, 1869, and is entitled ‘An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate the Crescent City Live-Stock Landing and Slaughter-House Company.’
The first section forbids the landing or slaughtering of animals whose flesh is intended for food, within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughter-houses or abattoirs within those limits except by the corporation thereby created, which is also limited to certain places afterwards mentioned. Suitable penalties are enacted for violations of this prohibition.
The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers.
The third and fourth sections authorize the company to establish and erect within certain territorial limits, therein defined, one or more stock-yards, stock-landings, and slaughter-houses, and imposes upon it the duty of erecting, on or before the first day of June, 1869, one grand slaughter-house of sufficient capacity for slaughtering five hundred animals per day.
It declares that the company, after it shall have prepared all the necessary buildings, yards, and other conveniences for that purpose, shall have the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits and privilege granted by the act, and that all such animals shall be landed at the stock-landings and slaughtered at the slaughter-houses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat and for each animal landed.
Section five orders the closing up of all other stock-landings and slaughter-houses after the first day of June, in the parishes of Orleans, Jefferson, and St. Bernard, and makes it the duty of the company to permit any person to slaughter animals in their slaughter-houses under a heavy penalty for each refusal. Another section fixes a limit to the charges to be made by the company for each animal so slaughtered in their building, and another provides for an inspection of all animals intended to be so slaughtered, by an officer appointed by the governor of the State for that purpose.
These are the principal features of the statute, and are all that have any bearing upon the questions to be decided by us.
This statute is denounced not only as creating a monopoly and conferring odious and exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens-the whole of the butchers of the city-of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families, and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the city. * * * *
The plaintiffs in error * * * * allege that the statute is a violation of the Constitution of the United States in these several particulars:
That it creates an involuntary servitude forbidden by the thirteenth article of amendment; That it abridges the privileges and immunities of citizens of the United States; That it denies to the plaintiffs the equal protection of the laws; and, That it deprives them of their property without due process of law; contrary to the provisions of the first section of the fourteenth article of amendment. This court is thus called upon for the first time to give construction to these articles.
We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. We have given every opportunity for a full hearing at the bar; we have discussed it freely and compared views among ourselves; we have taken ample time for careful deliberation, and we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that we have neither the inclination nor the right to go. * * * *
{The Court held that the Thirteenth Amendment did not apply}
The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship-not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.
To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.
‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’
The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.
The language is, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.
Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment. If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment.
The first occurrence of the words ‘privileges and immunities’ in our constitutional history, is to be found in the fourth of the articles of the old Confederation. It declares ‘that the better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively.’
In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: “The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.”
There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase.
Fortunately we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1823. ‘The inquiry,’ he says, ‘is, what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.’
This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward v. The State of Maryland [1870], while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which the fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure.
In the case of Paul v. Virginia (1869), the court, in expounding this clause of the Constitution, says that ‘the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens.’
The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.
Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.
It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States-such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so.
But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.
One of these is well described in the case of Crandall v. Nevada (1868). It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.’ And quoting from the language of Chief Justice Taney in another case, it is said ‘that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;’ and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.
Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered.
But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration. * * * *
{Additionally} The argument has not been much pressed in these cases that the defendant’s charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. This law then, has practically been the same as it now is during the existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal government.
We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision. * * * *
But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts. The judgments of the Supreme Court of Louisiana in these cases are
AFFIRMED.
Check Your Understanding
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McDonald v. City of Chicago
561 U.S. 742 (2010)
Justice Alito announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which The Chief Justice, Justice Scalia, Justice Kennedy, and Justice Thomas join, and an opinion with respect to Parts II–C, IV, and V, in which The Chief Justice, Justice Scalia, and Justice Kennedy join.
Two years ago, in District of Columbia v. Heller (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.
I
Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago’s firearms laws. A City ordinance provides that “[n]o person shall … possess … any firearm unless such person is the holder of a valid registration certificate for such firearm.” The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. Like Chicago, Oak Park makes it “unlawful for any person to possess … any firearm,” a term that includes “pistols, revolvers, guns and small arms … commonly known as handguns.” * * * *
After our decision in Heller, the Chicago petitioners and two groups filed suit against the City in the United States District Court for the Northern District of Illinois. They sought a declaration that the handgun ban and several related Chicago ordinances violate the Second and Fourteenth Amendments to the United States Constitution. Another action challenging the Oak Park law was filed in the same District Court by the National Rifle Association (NRA) and two Oak Park residents. In addition, the NRA and others filed a third action challenging the Chicago ordinances. All three cases were assigned to the same District Judge.
The District Court rejected plaintiffs’ argument that the Chicago and Oak Park laws are unconstitutional. The court noted that the Seventh Circuit had “squarely upheld the constitutionality of a ban on handguns a quarter century ago,” and that Heller had explicitly refrained from “opin[ing] on the subject of incorporation vel non of the Second Amendment.” The court observed that a district judge has a “duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction.”
The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank (1876), Presser v. Illinois (1886), and Miller v. Texas (1894)—that were decided in the wake of this Court’s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases (1873). The Seventh Circuit described the rationale of those cases as “defunct” and recognized that they did not consider the question whether the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right to keep and bear arms. Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have “direct application,” and it declined to predict how the Second Amendment would fare under this Court’s modern “selective incorporation” approach.
We granted certiorari.
A
Petitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two reasons. Petitioners’ primary submission is that this right is among the “privileges or immunities of citizens of the United States” and that the narrow interpretation of the Privileges or Immunities Clause adopted in the Slaughter-House Cases should now be rejected. As a secondary argument, petitioners contend that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right.
Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only if that right is an indispensable attribute of any “‘civilized’” legal system. If it is possible to imagine a civilized country that does not recognize the right, the municipal respondents tell us, then that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of handguns, the municipal respondents maintain that due process does not preclude such measures. In light of the parties’ far-reaching arguments, we begin by recounting this Court’s analysis over the years of the relationship between the provisions of the Bill of Rights and the States.
B
The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore (1833), the Court, in an opinion by Chief Justice Marshall, explained that this question was “of great importance” but “not of much difficulty.” In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government.
The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system. The provision at issue in this case, § 1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge “the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law.”
Four years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the Amendment’s reference to “the privileges or immunities of citizens of the United States.” The Slaughter-House Cases, involved challenges to a Louisiana law permitting the creation of a state-sanctioned monopoly on the butchering of animals within the city of New Orleans. Justice Samuel Miller’s opinion for the Court concluded that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” The Court held that other fundamental rights—rights that predated the creation of the Federal Government and that “the State governments were created to establish and secure”—were not protected by the Clause.
In drawing a sharp distinction between the rights of federal and state citizenship, the Court relied on two principal arguments. First, the Court emphasized that the Fourteenth Amendment’s Privileges or Immunities Clause spoke of “the privileges or immunities of citizens of the United States,” and the Court contrasted this phrasing with the wording in the first sentence of the Fourteenth Amendment and in the Privileges and Immunities Clause of Article IV, both of which refer to state citizenship. (Emphasis added.) Second, the Court stated that a contrary reading would “radically chang[e] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people,” and the Court refused to conclude that such a change had been made “in the absence of language which expresses such a purpose too clearly to admit of doubt.” Finding the phrase “privileges or immunities of citizens of the United States” lacking by this high standard, the Court reasoned that the phrase must mean something more limited.
Under the Court’s narrow reading, the Privileges or Immunities Clause protects such things as the right
to come to the seat of government to assert any claim [a citizen] may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions … [and to] become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.
Finding no constitutional protection against state intrusion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Justice Field, joined by Chief Justice Chase and Justices Swayne and Bradley, criticized the majority for reducing the Fourteenth Amendment’s Privileges or Immunities Clause to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Justice Field opined that the Privileges or Immunities Clause protects rights that are “in their nature … fundamental,” including the right of every man to pursue his profession without the imposition of unequal or discriminatory restrictions. Justice Bradley’s dissent observed that “we are not bound to resort to implication … to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself.” Justice Bradley would have construed the Privileges or Immunities Clause to include those rights enumerated in the Constitution as well as some unenumerated rights. Justice Swayne described the majority’s narrow reading of the Privileges or Immunities Clause as “turn[ing] … what was meant for bread into a stone.” (dissenting opinion).
Today, many legal scholars dispute the correctness of the narrow Slaughter-House interpretation. See, e.g., Saenz v. Roe (1999) (Thomas, J., dissenting) (scholars of the Fourteenth Amendment agree “that the Clause does not mean what the Court said it meant in 1873”); Brief for Constitutional Law Professors as Amici Curiae 33 (claiming an “overwhelming consensus among leading constitutional scholars” that the opinion is “egregiously wrong”). * * * *
C
As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’ claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privileges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, but petitioners are unable to identify the Clause’s full scope. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed.
We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.
1
In the late 19th century, the Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. See Hurtado v. California (1884) (due process does not require grand jury indictment); Chicago, B. & Q. R. Co. v. Chicago (1897) (due process prohibits States from taking of private property for public use without just compensation). Five features of the approach taken during the ensuing era should be noted.
First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship.
Second, the Court explained that the only rights protected against state infringement by the Due Process Clause were those rights “of such a nature that they are included in the conception of due process of law.” While it was “possible that some of the personal rights safeguarded by the first eight Amendments against National action [might] also be safeguarded against state action,” the Court stated, this was “not because those rights are enumerated in the first eight Amendments.” The Court used different formulations in describing the boundaries of due process. For example, * * * * in Snyder v. Massachusetts (1934), the Court spoke of rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And in Palko, the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.”
Third, in some cases decided during this era the Court “can be seen as having asked, when inquiring into whether some particular procedural safeguard was required of a State, if a civilized system could be imagined that would not accord the particular protection.” Duncan v. Louisiana (1968). Thus, in holding that due process prohibits a State from taking private property without just compensation, the Court described the right as “a principle of natural equity, recognized by all temperate and civilized governments, from a deep and universal sense of its justice.” Similarly, the Court found that due process did not provide a right against compelled incrimination in part because this right “has no place in the jurisprudence of civilized and free countries outside the domain of the common law.”
Fourth, the Court during this era was not hesitant to hold that a right set out in the Bill of Rights failed to meet the test for inclusion within the protection of the Due Process Clause. The Court found that some such rights qualified. But others did not.
Finally, even when a right set out in the Bill of Rights was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from the protection or remedies provided against abridgment by the Federal Government. * * * *
2
An alternative theory regarding the relationship between the Bill of Rights and § 1 of the Fourteenth Amendment was championed by Justice Black. This theory held that § 1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. As Justice Black noted, the chief congressional proponents of the Fourteenth Amendment espoused the view that the Amendment made the Bill of Rights applicable to the States and, in so doing, overruled this Court’s decision in Barron. Nonetheless, the Court never has embraced Justice Black’s “total incorporation” theory.
3
While Justice Black’s theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of “selective incorporation,” i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments.
The decisions during this time abandoned three of the previously noted characteristics of the earlier period. The Court made it clear that the governing standard is not whether any “civilized system [can] be imagined that would not accord the particular protection.” Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. (referring to those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”
The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights protections remain unincorporated.
Finally, the Court abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights guarantees or remedies did not apply to the States.
III
With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg (1997).
A
Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. * * * *
B
{extensive historical discussions omitted} * * * * In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. * * * *
IV
Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.
Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. * * * *
V
{discussion of dissenting opinions omitted}
* * *
In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
It is so ordered.
Justice Thomas, concurring in part and concurring in the judgment.
I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” (citing Duncan v. Louisiana (1968)), and “‘deeply rooted in this Nation’s history and tradition,’” (quoting Washington v. Glucksberg (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.
I
* * * * I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable command.” Lawrence v. Texas (2003). Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.
II
* * * * This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause. * * * *
III
My conclusion is contrary to this Court’s precedents, which hold that the Second Amendment right to keep and bear arms is not a privilege of United States citizenship. I must, therefore, consider whether stare decisis requires retention of those precedents. As mentioned at the outset, my inquiry is limited to the right at issue here. Thus, I do not endeavor to decide in this case whether, or to what extent, the Privileges or Immunities Clause applies any other rights enumerated in the Constitution against the States. Nor do I suggest that the stare decisis considerations surrounding the application of the right to keep and bear arms against the States would be the same as those surrounding another right protected by the Privileges or Immunities Clause. I consider stare decisis only as it applies to the question presented here.
A
This inquiry begins with the Slaughter-House Cases. * * * * I reject Slaughter-House insofar as it precludes any overlap between the privileges and immunities of state and federal citizenship. I next proceed to the stare decisis considerations surrounding the precedent that expressly controls the question presented here.
B
Three years after Slaughter-House, the Court in United States v. Cruikshank (1876) squarely held that the right to keep and bear arms was not a privilege of American citizenship, thereby overturning the convictions of militia members responsible for the brutal Colfax Massacre. Cruikshank is not a precedent entitled to any respect. The flaws in its interpretation of the Privileges or Immunities Clause are made evident by the preceding evidence of its original meaning, and I would reject the holding on that basis alone. But, the consequences of Cruikshank warrant mention as well.
Cruikshank’s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.
Take, for example, the Hamburg Massacre of 1876. There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white militia commander, “Pitchfork” Ben Tillman, later described this massacre with pride: “[T]he leading white men of Edgefield” had decided “to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifiable.” S. Kantrowitz, Ben Tillman & the Reconstruction of White Supremacy 67 (2000) (ellipsis, brackets, and internal quotation marks omitted). None of the perpetrators of the Hamburg murders was ever brought to justice.
Organized terrorism like that perpetuated by Tillman and his cohorts proliferated in the absence of federal enforcement of constitutional rights. Militias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces, and the ’76 Association spread terror among blacks and white Republicans by breaking up Republican meetings, threatening political leaders, and whipping black militiamen. These groups raped, murdered, lynched, and robbed as a means of intimidating, and instilling pervasive fear in, those whom they despised. A. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction 28–46 (1995).
Although Congress enacted legislation to suppress these activities, Klan tactics remained a constant presence in the lives of Southern blacks for decades. Between 1882 and 1968, there were at least 3,446 reported lynchings of blacks in the South. They were tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process. Emmit Till, for example, was killed in 1955 for allegedly whistling at a white woman. The fates of other targets of mob violence were equally depraved.
The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “ ‘[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.’ ” Sometimes, as in Cooper’s case, self-defense did not succeed. He was dragged from his home by a mob and killed as his wife looked on. But at other times, the use of firearms allowed targets of mob violence to survive. One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. The experience left him with a sense, “not ‘of powerlessness, but of the “possibilities of salvation” ’ ” that came from standing up to intimidation.
In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank’s contrary holding that warrants its retention.
* * *
I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.
Justice Stevens, dissenting.
In District of Columbia v. Heller (2008), the Court answered the question whether a federal enclave’s “prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.” The question we should be answering in this case is whether the Constitution “guarantees individuals a fundamental right,” enforceable against the States, “to possess a functional, personal firearm, including a handgun, within the home.” That is a different—and more difficult—inquiry than asking if the Fourteenth Amendment “incorporates” the Second Amendment. The so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century. * * * *
{Petitioners’} briefs marshal an impressive amount of historical evidence for their argument that the Court interpreted the Privileges or Immunities Clause too narrowly in the Slaughter-House Cases (1873). But the original meaning of the Clause is not as clear as they suggest—and not nearly as clear as it would need to be to dislodge 137 years of precedent. The burden is severe for those who seek radical change in such an established body of constitutional doctrine. Moreover, the suggestion that invigorating the Privileges or Immunities Clause will reduce judicial discretion, strikes me as implausible, if not exactly backwards. “For the very reason that it has so long remained a clean slate, a revitalized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution.”
* * * * Heller * * * * sheds no light on the meaning of the Due Process Clause of the Fourteenth Amendment. Our decisions construing that Clause to render various procedural guarantees in the Bill of Rights enforceable against the States likewise tell us little about the meaning of the word “liberty” in the Clause or about the scope of its protection of nonprocedural rights.
This is a substantive due process case.
I
Section 1 of the Fourteenth Amendment decrees that no State shall “deprive any person of life, liberty, or property, without due process of law.” The Court has filled thousands of pages expounding that spare text. As I read the vast corpus of substantive due process opinions, they confirm several important principles that ought to guide our resolution of this case. The principal opinion’s lengthy summary of our “incorporation” doctrine, and its implicit (and untenable) effort to wall off that doctrine from the rest of our substantive due process jurisprudence, invite a fresh survey of this old terrain.
Substantive Content
The first, and most basic, principle established by our cases is that the rights protected by the Due Process Clause are not merely procedural in nature. At first glance, this proposition might seem surprising, given that the Clause refers to “process.” But substance and procedure are often deeply entwined. Upon closer inspection, the text can be read to “impos[e] nothing less than an obligation to give substantive content to the words ‘liberty’ and ‘due process of law,’” Washington v. Glucksberg (1997) (Souter, J., concurring in judgment), lest superficially fair procedures be permitted to “destroy the enjoyment” of life, liberty, and property, Poe v. Ullman (1961) (Harlan, J., dissenting), and the Clause’s prepositional modifier be permitted to swallow its primary command. Procedural guarantees are hollow unless linked to substantive interests; and no amount of process can legitimize some deprivations.
I have yet to see a persuasive argument that the Framers of the Fourteenth Amendment thought otherwise. To the contrary, the historical evidence suggests that, at least by the time of the Civil War if not much earlier, the phrase “due process of law” had acquired substantive content as a term of art within the legal community. This understanding is consonant with the venerable “notion that governmental authority has implied limits which preserve private autonomy,” a notion which predates the founding and which finds reinforcement in the Constitution’s Ninth Amendment, see Griswold v. Connecticut (1965) (Goldberg, J., concurring). The Due Process Clause cannot claim to be the source of our basic freedoms—no legal document ever could—but it stands as one of their foundational guarantors in our law.
If text and history are inconclusive on this point, our precedent leaves no doubt: It has been “settled” for well over a century that the Due Process Clause “applies to matters of substantive law as well as to matters of procedure.” Time and again, we have recognized that in the Fourteenth Amendment as well as the Fifth, the “Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” Glucksberg. “The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ ” Some of our most enduring precedents, accepted today by virtually everyone, were substantive due process decisions. See, e.g., Loving v. Virginia (1967) (recognizing due-process- as well as equal-protection-based right to marry person of another race); Bolling v. Sharpe (1954) (outlawing racial segregation in District of Columbia public schools); Pierce v. Society of Sisters (1925) (vindicating right of parents to direct upbringing and education of their children); Meyer v. Nebraska (1923) (striking down prohibition on teaching of foreign languages).
Liberty
The second principle woven through our cases is that substantive due process is fundamentally a matter of personal liberty. For it is the liberty clause of the Fourteenth Amendment that grounds our most important holdings in this field. It is the liberty clause that enacts the Constitution’s “promise” that a measure of dignity and self-rule will be afforded to all persons. Planned Parenthood of Southeastern Pa. v. Casey (1992). * * * * Our substantive due process cases have episodically invoked values such as privacy and equality as well, values that in certain contexts may intersect with or complement a subject’s liberty interests in profound ways. But as I have observed on numerous occasions, “most of the significant [20th-century] cases raising Bill of Rights issues have, in the final analysis, actually interpreted the word ‘liberty’ in the Fourteenth Amendment.”
It follows that the term “incorporation,” like the term “unenumerated rights,” is something of a misnomer. Whether an asserted substantive due process interest is explicitly named in one of the first eight Amendments to the Constitution or is not mentioned, the underlying inquiry is the same: We must ask whether the interest is “comprised within the term liberty.” As the second Justice Harlan has shown, ever since the Court began considering the applicability of the Bill of Rights to the States, “the Court’s usual approach has been to ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.” Malloy v. Hogan (1964) (dissenting opinion); see also Frankfurter, Memorandum on “Incorporation” of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746 (1965). In the pathmarking case of Gitlow v. New York (1925), for example, both the majority and dissent evaluated petitioner’s free speech claim not under the First Amendment but as an aspect of “the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
In his own classic opinion in Griswold (concurring in judgment), Justice Harlan memorably distilled these precedents’ lesson: “While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands … on its own bottom.” Inclusion in the Bill of Rights is neither necessary nor sufficient for an interest to be judicially enforceable under the Fourteenth Amendment. This Court’s “‘selective incorporation’ ” doctrine, is not simply “related” to substantive due process; it is a subset thereof.
Federal/State Divergence
The third precept to emerge from our case law flows from the second: The rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights. As drafted, the Bill of Rights directly constrained only the Federal Government. Although the enactment of the Fourteenth Amendment profoundly altered our legal order, it “did not unstitch the basic federalist pattern woven into our constitutional fabric.” Nor, for that matter, did it expressly alter the Bill of Rights. The Constitution still envisions a system of divided sovereignty, still “establishes a federal republic where local differences are to be cherished as elements of liberty” in the vast run of cases, Elementary considerations of constitutional text and structure suggest there may be legitimate reasons to hold state governments to different standards than the Federal Government in certain areas.
It is true, as the Court emphasizes that we have made numerous provisions of the Bill of Rights fully applicable to the States. * * * *
It is true, as well, that during the 1960’s the Court decided a number of cases involving procedural rights in which it treated the Due Process Clause as if it transplanted language from the Bill of Rights into the Fourteenth Amendment. * * * * In my judgment, this line of cases is best understood as having concluded that, to ensure a criminal trial satisfies essential standards of fairness, some procedures should be the same in state and federal courts: The need for certainty and uniformity is more pressing, and the margin for error slimmer, when criminal justice is at issue. That principle has little relevance to the question whether a nonprocedural rule set forth in the Bill of Rights qualifies as an aspect of the liberty protected by the Fourteenth Amendment.
* * * * I do not mean to deny that there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to the State and Federal Governments. Jot-for-jot incorporation of a provision may entail greater protection of the right at issue and therefore greater freedom for those who hold it; jot-for-jot incorporation may also yield greater clarity about the contours of the legal rule. * * * *
{But} there is a real risk that, by demanding the provisions of the Bill of Rights apply identically to the States, federal courts will cause those provisions to “be watered down in the needless pursuit of uniformity.” When one legal standard must prevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed standard. This watering-down risk is particularly acute when we move beyond the narrow realm of criminal procedure and into the relatively vast domain of substantive rights. So long as the requirements of fundamental fairness are always and everywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a provision of the Bill of Rights to the States. Indeed, it is far from clear that proponents of an individual right to keep and bear arms ought to celebrate today’s decision.
II
So far, I have explained that substantive due process analysis generally requires us to consider the term “liberty” in the Fourteenth Amendment, and that this inquiry may be informed by but does not depend upon the content of the Bill of Rights. How should a court go about the analysis, then? Our precedents have established, not an exact methodology, but rather a framework for decisionmaking. In this respect, too, the Court’s narrative fails to capture the continuity and flexibility in our doctrine.
The basic inquiry was described by Justice Cardozo more than 70 years ago. When confronted with a substantive due process claim, we must ask whether the allegedly unlawful practice violates values “implicit in the concept of ordered liberty.” Palko v. Connecticut (1937). * * * * Implicit in Justice Cardozo’s test is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal preferences of their champions, may be valid claims in some sense; but they are not of constitutional stature. * * * *
Justice Cardozo’s test undeniably requires judges to apply their own reasoned judgment, but that does not mean it involves an exercise in abstract philosophy. * * * * Textual commitments laid down elsewhere in the Constitution, judicial precedents, English common law, legislative and social facts, scientific and professional developments, practices of other civilized societies, and, above all else, the “‘traditions and conscience of our people,’” Palko, are critical variables. They can provide evidence about which rights really are vital to ordered liberty, as well as a spur to judicial action. * * * *
Several of our most important recent decisions confirm the proposition that substantive due process analysis—from which, once again, “incorporation” analysis derives—must not be wholly backward looking. See, e.g., Lawrence v. Texas (2003) (“[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry”) * * * *
The Court’s flight from Palko leaves its analysis, careful and scholarly though it is, much too narrow to provide a satisfying answer to this case. The Court hinges its entire decision on one mode of intellectual history, culling selected pronouncements and enactments from the 18th and 19th centuries to ascertain what Americans thought about firearms. Relying on Duncan and Glucksberg, the plurality suggests that only interests that have proved “fundamental from an American perspective,” or “ ‘deeply rooted in this Nation’s history and tradition,’ ” (quoting Glucksberg), to the Court’s satisfaction, may qualify for incorporation into the Fourteenth Amendment. To the extent the Court’s opinion could be read to imply that the historical pedigree of a right is the exclusive or dispositive determinant of its status under the Due Process Clause, the opinion is seriously mistaken.
A rigid historical test is inappropriate in this case, most basically, because our substantive due process doctrine has never evaluated substantive rights in purely, or even predominantly, historical terms. * * * *
More fundamentally, a rigid historical methodology is unfaithful to the Constitution’s command. For if it were really the case that the Fourteenth Amendment’s guarantee of liberty embraces only those rights “so rooted in our history, tradition, and practice as to require special protection,” Glucksberg, then the guarantee would serve little function, save to ratify those rights that state actors have already been according the most extensive protection. That approach is unfaithful to the expansive principle Americans laid down when they ratified the Fourteenth Amendment and to the level of generality they chose when they crafted its language; it promises an objectivity it cannot deliver and masks the value judgments that pervade any analysis of what customs, defined in what manner, are sufficiently “ ‘rooted’ ”; it countenances the most revolting injustices in the name of continuity, for we must never forget that not only slavery but also the subjugation of women and other rank forms of discrimination are part of our history; and it effaces this Court’s distinctive role in saying what the law is, leaving the development and safekeeping of liberty to majoritarian political processes. It is judicial abdication in the guise of judicial modesty.
No, the liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but rather is a “dynamic concept.” * * * * The judge who would outsource the interpretation of “liberty” to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.
III
At this point a difficult question arises. In considering such a majestic term as “liberty” and applying it to present circumstances, how are we to do justice to its urgent call and its open texture—and to the grant of interpretive discretion the latter embodies—without injecting excessive subjectivity or unduly restricting the States’ “broad latitude in experimenting with possible solutions to problems of vital local concern”? * * * *
The Framers did not express a clear understanding of the term to guide us, and the now-repudiated Lochner line of cases attests to the dangers of judicial overconfidence in using substantive due process to advance a broad theory of the right or the good. See, e.g., Lochner v. New York (1905). * * * *
Several rules of the judicial process help enforce such restraint. In the substantive due process field as in others, the Court has applied both the doctrine of stare decisis—adhering to precedents, respecting reliance interests, prizing stability and order in the law—and the common-law method—taking cases and controversies as they present themselves, proceeding slowly and incrementally, building on what came before. This restrained methodology was evident even in the heyday of “incorporation” during the 1960’s. Although it would have been much easier for the Court simply to declare certain Amendments in the Bill of Rights applicable to the States in toto, the Court took care to parse each Amendment into its component guarantees, evaluating them one by one. This piecemeal approach allowed the Court to scrutinize more closely the right at issue in any given dispute, reducing both the risk and the cost of error.
Relatedly, rather than evaluate liberty claims on an abstract plane, the Court has “required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg. And just as we have required such careful description from the litigants, we have required of ourselves that we “focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake.” This does not mean that we must define the asserted right at the most specific level, thereby sapping it of a universal valence and a moral force it might otherwise have. It means, simply, that we must pay close attention to the precise liberty interest the litigants have asked us to vindicate.
* * * * As this discussion reflects, to acknowledge that the task of construing the liberty clause requires judgment is not to say that it is a license for unbridled judicial lawmaking. To the contrary, only an honest reckoning with our discretion allows for honest argumentation and meaningful accountability.
IV
The question in this case, then, is not whether the Second Amendment right to keep and bear arms (whatever that right’s precise contours) applies to the States because the Amendment has been incorporated into the Fourteenth Amendment. It has not been. The question, rather, is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom. * * * *
In short, while the utility of firearms, and handguns in particular, to the defense of hearth and home is certainly relevant to an assessment of petitioners’ asserted right, there is no freestanding self-defense claim in this case. The question we must decide is whether the interest in keeping in the home a firearm of one’s choosing—a handgun, for petitioners—is one that is “comprised within the term liberty” in the Fourteenth Amendment.
V
While I agree with the Court that our substantive due process cases offer a principled basis for holding that petitioners have a constitutional right to possess a usable firearm in the home, I am ultimately persuaded that a better reading of our case law supports the city of Chicago. I would not foreclose the possibility that a particular plaintiff—say, an elderly widow who lives in a dangerous neighborhood and does not have the strength to operate a long gun—may have a cognizable liberty interest in possessing a handgun. But I cannot accept petitioners’ broader submission. A number of factors, taken together, lead me to this conclusion.
First, firearms have a fundamentally ambivalent relationship to liberty. * * * * {I}n evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day—assuming the handgun’s marginal contribution to self-defense outweighs its marginal contribution to the risk of accident, suicide, and criminal mischief—it may make you and the community you live in less safe overall, owing to the increased number of handguns in circulation. It is at least reasonable for a democratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare. * * * *
Second, the right to possess a firearm of one’s choosing is different in kind from the liberty interests we have recognized under the Due Process Clause. Despite the plethora of substantive due process cases that have been decided in the post-Lochner century, I have found none that holds, states, or even suggests that the term “liberty” encompasses either the common-law right of self-defense or a right to keep and bear arms. I do not doubt for a moment that many Americans feel deeply passionate about firearms, and see them as critical to their way of life as well as to their security. Nevertheless, it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for self-defense, even if they are imperfect substitutes, and neither petitioners nor their amici make such a contention. Petitioners’ claim is not the kind of substantive interest, accordingly, on which a uniform, judicially enforced national standard is presumptively appropriate. * * * *
Third, the experience of other advanced democracies, including those that share our British heritage, undercuts the notion that an expansive right to keep and bear arms is intrinsic to ordered liberty. Many of these countries place restrictions on the possession, use, and carriage of firearms far more onerous than the restrictions found in this Nation. See Municipal Respondents’ Brief 21–23 (discussing laws of England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand). That the United States is an international outlier in the permissiveness of its approach to guns does not suggest that our laws are bad laws. It does suggest that this Court may not need to assume responsibility for making our laws still more permissive. * * * *
Fourth, the Second Amendment differs in kind from the Amendments that surround it * * * * Notwithstanding the Heller Court’s efforts to write the Second Amendment’s preamble out of the Constitution, the Amendment still serves the structural function of protecting the States from encroachment by an overreaching Federal Government. * * * *
Fifth, although it may be true that Americans’ interest in firearm possession and state-law recognition of that interest are “deeply rooted” in some important senses, it is equally true that the States have a long and unbroken history of regulating firearms. The idea that States may place substantial restrictions on the right to keep and bear arms short of complete disarmament is, in fact, far more entrenched than the notion that the Federal Constitution protects any such right. Federalism is a far “older and more deeply rooted tradition than is a right to carry,” or to own, “any particular kind of weapon.” * * * *
Finally, even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so. * * * *
This is not a case, then, that involves a “special condition” that “may call for a correspondingly more searching judicial inquiry.” Carolene Products, n. 4. Neither petitioners nor those most zealously committed to their views represent a group or a claim that is liable to receive unfair treatment at the hands of the majority. On the contrary, petitioners’ views are supported by powerful participants in the legislative process. Petitioners have given us no reason to believe that the interest in keeping and bearing arms entails any special need for judicial lawmaking, or that federal judges are more qualified to craft appropriate rules than the people’s elected representatives. Having failed to show why their asserted interest is intrinsic to the concept of ordered liberty or vulnerable to maltreatment in the political arena, they have failed to show why “the word liberty in the Fourteenth Amendment” should be “held to prevent the natural outcome of a dominant opinion” about how to deal with the problem of handgun violence in the city of Chicago. Lochner (Holmes, J., dissenting).
VI
The preceding sections have already addressed many of the points made by Justice Scalia in his concurrence. But in light of that opinion’s fixation on this one, it is appropriate to say a few words about Justice Scalia’s broader claim: that his preferred method of substantive due process analysis, a method “that makes the traditions of our people paramount,” is both more restrained and more facilitative of democracy than the method I have outlined. Colorful as it is, Justice Scalia’s critique does not have nearly as much force as does his rhetoric. His theory of substantive due process, moreover, comes with its own profound difficulties. * * * *
Nor is there any escaping Palko, it seems. To qualify for substantive due process protection, Justice Scalia has stated, an asserted liberty right must be not only deeply rooted in American tradition, “but it must also be implicit in the concept of ordered liberty.” Lawrence (dissenting opinion). Applying the latter, Palko-derived half of that test requires precisely the sort of reasoned judgment—the same multifaceted evaluation of the right’s contours and consequences—that Justice Scalia mocks in his concurrence today.
* * * * The malleability and elusiveness of history increase exponentially when we move from a pure question of original meaning, as in Heller, to Justice Scalia’s theory of substantive due process. * * * * In conducting this rudderless, panoramic tour of American legal history, the judge has more than ample opportunity to “look over the heads of the crowd and pick out [his] friends,” Roper v. Simmons (2005) (Scalia, J., dissenting). * * * *
VII
The fact that the right to keep and bear arms appears in the Constitution should not obscure the novelty of the Court’s decision to enforce that right against the States. By its terms, the Second Amendment does not apply to the States; read properly, it does not even apply to individuals outside of the militia context. The Second Amendment was adopted to protect the States from federal encroachment. And the Fourteenth Amendment has never been understood by the Court to have “incorporated” the entire Bill of Rights. There was nothing foreordained about today’s outcome.
Although the Court’s decision in this case might be seen as a mere adjunct to its decision in Heller, the consequences could prove far more destructive—quite literally—to our Nation’s communities and to our constitutional structure. Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home. But neither the “assurances” provided by the plurality, nor the many historical sources cited in its opinion should obscure the reality that today’s ruling marks a dramatic change in our law—or that the Justices who have joined it have brought to bear an awesome amount of discretion in resolving the legal question presented by this case.
I would proceed more cautiously. For the reasons set out at length above, I cannot accept either the methodology the Court employs or the conclusions it draws. Although impressively argued, the majority’s decision to overturn more than a century of Supreme Court precedent and to unsettle a much longer tradition of state practice is not, in my judgment, built “upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.” Griswold (Harlan, J., concurring in judgment).
Accordingly, I respectfully dissent.
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Notes
1. The McDonald v. City of Chicago opinions are in excess of 200 pages. Our excerpts are highly edited. We will return to some of the issues in McDonald, including the Second Amendment in the next chapter, and the issue of “unenumerated” rights under the Due Process Clause (highlighted in Justice Stevens’ dissent) in following chapters.
2. Be prepared to articulate the methods of “incorporation” of a listed (“enumerated”) right in the Bill of Rights against state governments.
3. Footnotes 12 and 13 in Alito’s plurality opinion provide a useful catalogue and citations regarding the provisions of the Bill of Rights that have been incorporated including case citations.
Footnote 12 supports the proposition that “The Court eventually incorporated almost all of the provisions of the Bill of Rights” and reads:
With respect to the First Amendment, see Everson v. Board of Ed. of Ewing (1947) (Establishment Clause); Cantwell v. Connecticut (1940) (Free Exercise Clause); De Jonge v. Oregon (1937) (freedom of assembly); Gitlow v. New York (1925) (free speech); Near v. Minnesota ex rel. Olson (1931) (freedom of the press).
With respect to the Fourth Amendment, see Aguilar v. Texas (1964) (warrant requirement); Mapp v. Ohio (1961) (exclusionary rule); Wolf v. Colorado (1949) (freedom from unreasonable searches and seizures).
With respect to the Fifth Amendment, see Benton v. Maryland (1969) (Double Jeopardy Clause); Malloy v. Hogan (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co. v. Chicago (1897) (Just Compensation Clause).
With respect to the Sixth Amendment, see Duncan v. Louisiana (1968) (trial by jury in criminal cases); Washington v. Texas (1967) (compulsory process); Klopfer v. North Carolina (1967) (speedy trial); Pointer v. Texas (1965) (right to confront adverse witness); Gideon v. Wainwright (1963) (assistance of counsel); In re Oliver (1948) (right to a public trial).
With respect to the Eighth Amendment, see Robinson v. California (1962) (cruel and unusual punishment); Schilb v. Kuebel (1971) (prohibition against excessive bail).
Footnote 13 discusses the “handful” of “Bill of Rights protections” that remain unincorporated and reads:
In addition to the right to keep and bear arms {before McDonald} (and the Sixth Amendment right to a unanimous jury verdict {Apodaca v. Oregon (1972) discussed further in fn 14}), the only rights not fully incorporated are (1) the Third Amendment’s protection against quartering of soldiers; (2) the Fifth Amendment’s grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibition on excessive fines.
We never have decided whether the Third Amendment or the Eighth Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., (1989) (declining to decide whether the excessive-fines protection applies to the States). Our governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment’s civil jury requirement long predate the era of selective incorporation.
4. In McDonald v. Chicago, the Court stated that it has “decisively held that incorporated Bill of Rights protections ‘are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.’” In its footnote to this statement (footnote 14) the Court added:
There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trial guarantee, however it is to be construed, has identical application against both State and Federal Governments”).
We will return to this issue.
Timbs v. Indiana
586 U.S. ___ (2019)
Justice Ginsburg delivered the opinion of the Court.
Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling \$1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about \$42,000. Timbs paid for the vehicle with money he received from an insurance policy when his father died. The State engaged a private law firm to bring a civil suit for forfeiture of Timbs’s Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture demand. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for \$42,000, more than four times the maximum \$10,000 monetary fine assessable against him for his drug conviction. Forfeiture of the Land Rover, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed that determination, but the Indiana Supreme Court reversed. The Indiana Supreme Court did not decide whether the forfeiture would be excessive. Instead, it held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions. We granted certiorari.
The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago (2010). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.
A
When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. Tiernan v. Mayor of Baltimore (1833). “The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” McDonald. With only “a handful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id. [citing notes 12–13]. A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Incorporated Bill of Rights guarantees are “enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Id. Thus, if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.
B
* * * * Directly at issue here is the phrase “nor excessive fines imposed,” which “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’” The Fourteenth Amendment, we hold, incorporates this protection.
The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” § 20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225). As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.”
Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay. When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, § 10, in 3 Eng. Stat. at Large 441 (1689).
Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment * * * *
An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines.
Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines to coerce involuntary labor.
Today, acknowledgment of the right’s fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality. Indeed, Indiana explains that its own Supreme Court has held that the Indiana Constitution should be interpreted to impose the same restrictions as the Eighth Amendment. * * * *
In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald.
II
The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted.
* * * * In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain common-place social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged.
For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Justice Gorsuch, concurring
* * * * As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. * * * * But nothing in this case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.
Justice Thomas, concurring in the judgment
{omitted; Thomas concludes that the Eighth Amendment’s Excessive Fines Clause is a privilege of American citizenship that applies to States pursuant to the Fourteenth Amendment’s Privileges or Immunities Clause}
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Ramos v. Louisiana
590 U.S. ____ (2020)
Gorsuch, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which Ginsburg, Breyer, Sotomayor, and Kavanaugh, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which Ginsburg, Breyer, and Sotomayor, JJ., joined, and an opinion with respect to Part IV–A, in which Ginsburg and Breyer, JJ., joined.
Accused of a serious crime, Evangelisto Ramos insisted on his innocence and invoked his right to a jury trial. Eventually, 10 jurors found the evidence against him persuasive. But a pair of jurors believed that the State of Louisiana had failed to prove Mr. Ramos’s guilt beyond reasonable doubt; they voted to acquit.
In 48 States and federal court, a single juror’s vote to ac- quit is enough to prevent a conviction. But not in Louisiana. Along with Oregon, Louisiana has long punished people based on 10-to-2 verdicts like the one here. So instead of the mistrial he would have received almost anywhere else, Mr. Ramos was sentenced to life in prison without the possibility of parole.
Why do Louisiana and Oregon allow nonunanimous convictions? Though it’s hard to say why these laws persist, their origins are clear. Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to “establish the supremacy of the white race,” and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements.
Nor was it only the prospect of African-Americans voting that concerned the delegates. Just a week before the convention, the U. S. Senate passed a resolution calling for an investigation into whether Louisiana was systemically excluding African-Americans from juries. Seeking to avoid unwanted national attention, and aware that this Court would strike down any policy of overt discrimination against African-American jurors as a violation of the Fourteenth Amendment, the delegates sought to undermine African-American participation on juries in another way. With a careful eye on racial demographics, the convention delegates sculpted a “facially race-neutral” rule permitting 10-to-2 verdicts in order “to ensure that African-American juror service would be meaningless.”
Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.” In fact, no one before us contests any of this; courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.
We took this case to decide whether the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense. Louisiana insists that this Court has never definitively passed on the question and urges us to find its practice consistent with the Sixth Amendment. By contrast, the dissent doesn’t try to defend Louisiana’s law on Sixth or Fourteenth Amendment grounds; tacitly, it seems to admit that the Constitution forbids States from using nonunanimous juries. Yet, unprompted by Louisiana, the dissent suggests our precedent requires us to rule for the State anyway. What explains all this? To answer the puzzle, it’s necessary to say a bit more about the merits of the question presented, the relevant precedent, and, at last, the consequences that follow from saying what we know to be true.
I
The Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” The Amendment goes on to preserve other rights for criminal defendants but says nothing else about what a “trial by an impartial jury” entails.
Still, the promise of a jury trial surely meant something— otherwise, there would have been no reason to write it down. Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely abridged by statute. Imagine a constitution that allowed a “jury trial” to mean nothing but a single person rubberstamping convictions without hearing any evidence—but simultaneously insisting that the lone juror come from a specific judicial district “previously ascertained by law.” And if that’s not enough, imagine a constitution that included the same hollow guarantee twice—not only in the Sixth Amendment, but also in Article III. No: The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a jury trial.
One of these requirements was unanimity. Wherever we might look to determine what the term “trial by an impartial jury trial” meant at the time of the Sixth Amendment’s adoption—whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict in order to convict.
The requirement of juror unanimity emerged in 14th- century England and was soon accepted as a vital right protected by the common law. * * * *
It was against this backdrop that James Madison drafted and the States ratified the Sixth Amendment in 1791. By that time, unanimous verdicts had been required for about 400 years. * * * *
Nor is this a case where the original public meaning was lost to time and only recently recovered. This Court has, repeatedly and over many years, recognized that the Sixth Amendment requires unanimity. * * * *
There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally. This Court has long explained that the Sixth Amendment right to a jury trial is “fundamental to the American scheme of justice” and incorporated against the States under the Fourteenth Amendment. This Court has long explained, too, that incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government. So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.
A
How, despite these seemingly straightforward principles, have Louisiana’s and Oregon’s laws managed to hang on for so long? It turns out that the Sixth Amendment’s otherwise simple story took a strange turn in 1972. That year, the Court confronted these States’ unconventional schemes for the first time—in Apodaca v. Oregon and a companion case, Johnson v. Louisiana. Ultimately, the Court could do no more than issue a badly fractured set of opinions. * * * *
Justice Powell frankly explained, he was “unwillin[g]” to follow the Court’s precedents. So he offered up the essential fifth vote to uphold Mr. Apodaca’s conviction—if based only on a view of the Fourteenth Amendment that he knew was (and remains) foreclosed by precedent.
B
In the years following Apodaca, both Louisiana and Oregon chose to continue allowing nonunanimous verdicts. * * * *
III
Louisiana’s approach may not be quite as tough as trying to defend Justice Powell’s dual-track theory of incorporation, but it’s pretty close. How does the State deal with the fact this Court has said 13 times over 120 years that the Sixth Amendment does require unanimity? Or the fact that five Justices in Apodaca said the same? The best the State can offer is to suggest that all these statements came in dicta. * * * *
A
If Louisiana’s path to an affirmance is a difficult one, the dissent’s is trickier still. The dissent doesn’t dispute that the Sixth Amendment protects the right to a unanimous jury verdict, or that the Fourteenth Amendment extends this right to state-court trials. But, it insists, we must affirm Mr. Ramos’s conviction anyway. Why? Because the doctrine of stare decisis supposedly commands it. There are two independent reasons why that answer falls short.
In the first place and as we’ve seen, not even Louisiana tries to suggest that Apodaca supplies a governing precedent. * * * *
1
There’s another obstacle the dissent must overcome. Even if we accepted the premise that Apodaca established a precedent, no one on the Court today is prepared to say it was rightly decided, and stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true. Of course, the precedents of this Court warrant our deep respect as embodying the considered views of those who have come before. But stare decisis has never been treated as “an inexorable command.” And the doctrine is “at its weakest when we interpret the Constitution” because a mistaken judicial interpretation of that supreme law is often “practically impossible” to correct through other means. To balance these considerations, when it revisits a precedent this Court has traditionally considered “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.” * * * *
2
{discussion of reliance omitted}
V
On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one be- fore us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others. But where is the justice in that? Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right. The judgment of the Court of Appeals is
Reversed.
Justice Sotomayor, concurring as to all but Part IV–A.
I agree with most of the Court’s rationale, and so I join all but Part IV–A of its opinion. I write separately, however, to underscore three points. First, overruling precedent here is not only warranted, but compelled. Second, the interests at stake point far more clearly to that outcome than those in other recent cases. And finally, the racially biased origins of the Louisiana and Oregon laws uniquely matter here. * * * *
Justice Kavanaugh, concurring in part.
* * * * I agree with the Court that the time has come to overrule Apodaca. I therefore join the introduction and Parts I, II–A, III, and IV–B–1 of the Court’s persuasive and important opinion. I write separately to explain my view of how stare decisis applies to this case.
* * * * As the Court has exercised the “judicial Power” over time, the Court has identified various stare decisis factors. In articulating and applying those factors, the Court has, to borrow James Madison’s words, sought to liquidate and ascertain the meaning of the Article III “judicial Power” with respect to precedent. The Federalist No. 37.
The stare decisis factors identified by the Court in its past cases include:
• the quality of the precedent’s reasoning;
• the precedent’s consistency and coherence with previous or subsequent decisions;
• changed law since the prior decision;
• changed facts since the prior decision;
• the workability of the precedent;
• the reliance interests of those who have relied on the precedent; and
• the age of the precedent.
But the Court has articulated and applied those various in- dividual factors without establishing any consistent methodology or roadmap for how to analyze all of the factors taken together. And in my view, that muddle poses a problem for the rule of law and for this Court, as the Court attempts to apply stare decisis principles in a neutral and consistent manner.
As I read the Court’s cases on precedent, those varied and somewhat elastic stare decisis factors fold into three broad considerations that, in my view, can help guide the inquiry and help determine what constitutes a “special justification” or “strong grounds” to overrule a prior constitutional decision.
First, is the prior decision not just wrong, but grievously or egregiously wrong? * * * *
Second, has the prior decision caused significant negative jurisprudential or real-world consequences? * * * *
Third, would overruling the prior decision unduly upset reliance interests? This consideration focuses on the legitimate expectations of those who have reasonably relied on the precedent. In conducting that inquiry, the Court may examine a variety of reliance interests and the age of the precedent, among other factors. * * * *
Justice Thomas, concurring in the judgment.
I agree with the Court that petitioner Evangelisto Ramos’ felony conviction by a nonunanimous jury was unconstitutional. I write separately because I would resolve this case based on the Court’s longstanding view that the Sixth Amendment includes a protection against nonunanimous felony guilty verdicts, without undertaking a fresh analysis of the meaning of “trial . . . by an impartial jury.” I also would make clear that this right applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause. * * * *
Justice Alito, with whom The Chief Justice joins, and with whom Justice Kagan joins as to all but Part III–D, dissenting.
The doctrine of stare decisis gets rough treatment in today’s decision. Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.
Nearly a half century ago in Apodaca v. Oregon (1972), the Court held that the Sixth Amendment permits non-unanimous verdicts in state criminal trials, and in all the years since then, no Justice has even hinted that Apodaca should be reconsidered. Understandably thinking that Apodaca was good law, the state courts in Louisiana and Oregon have tried thousands of cases under rules that permit such verdicts. But today, the Court does away with Apodaca and, in so doing, imposes a potentially crushing burden on the courts and criminal justice systems of those States. The Court, however, brushes aside these consequences and even suggests that the States should have known better than to count on our decision.
To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting non-unanimous verdicts—even though this Court found such verdicts to be constitutional and even though there are entirely legitimate arguments for allowing them.
I would not overrule Apodaca. Whatever one may think about the correctness of the decision, it has elicited enormous and entirely reasonable reliance. And before this Court decided to intervene, the decision appeared to have little practical importance going forward. Louisiana has now abolished non-unanimous verdicts, and Oregon seemed on the verge of doing the same until the Court intervened.
In Part II of this opinion, I will address the surprising argument, advanced by three Justices in the majority, that Apodaca was never a precedent at all, and in Part III, I will explain why stare decisis supports retention of that precedent. But before reaching those issues, I must say something about the rhetoric with which the majority has seen fit to begin its opinion.
I
Too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regrettably succumbs to this trend. At the start of its opinion, the majority asks this rhetorical question: “Why do Louisiana and Oregon allow nonunanimous convictions?” And the answer it suggests? Racism, white supremacy, the Ku Klux Klan. Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise African- Americans.
If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons, that is deplorable, but what does that have to do with the broad constitutional question before us? The answer is: nothing.
For one thing, whatever the reasons why Louisiana and Oregon originally adopted their rules many years ago, both States readopted their rules under different circumstances in later years. * * * *
A
Stare decisis has been a fundamental part of our jurisprudence since the founding, and it is an important doctrine. But, as we have said many times, it is not an “inexorable command.” There are circumstances when past decisions must be overturned, but we begin with the presumption that we will follow precedent, and therefore when the Court decides to overrule, it has an obligation to provide an explanation for its decision.
This is imperative because the Court should have a body of neutral principles on the question of overruling precedent. The doctrine should not be transformed into a tool that favors particular outcomes.
B
What is the majority’s justification for overruling Apodaca? With no apparent appreciation of the irony, today’s majority, which is divided into four separate camps, criticizes the Apodaca majority as “badly fractured.” * * * *
C
Up to this point, I have discussed the majority’s reasons for overruling Apodaca, but that is only half the picture. What convinces me that Apodaca should be retained are the enormous reliance interests of Louisiana and Oregon. For 48 years, Louisiana and Oregon, trusting that Apodaca is good law, have conducted thousands and thousands of trials under rules allowing non-unanimous verdicts. Now, those States face a potential tsunami of litigation on the jury- unanimity issue. * * * *
D
The reliance in this case far outstrips that asserted in recent cases in which past precedents were overruled. * * * * {omitted discussion of recent cases overruling precedent}.
Check Your Understanding
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Further Your Understanding
CALI Lesson: Incorporation of Constitutional Rights
CALI, The Center for Assisted Legal Instruction, has a lesson designed to further your understanding of the constitutional doctrine and theories of incorporation regarding whether the federal government, the state government, or both are bound by the specific individual constitutional rights in the Bill of Rights. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.10%3A_CHAPTER_EIGHT-_Incorporation_and_Fundamental_Rights.txt |
The Second Amendment reads in full:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
District of Columbia v. Heller
554 U.S. 570 (2008)
Justice Scalia delivered the opinion of the Court.
We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.
I
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities.
Respondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” The District Court dismissed respondent’s complaint. The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense reversed. It held that the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. The Court of Appeals directed the District Court to enter summary judgment for respondent.
We granted certiorari.
II
We turn first to the meaning of the Second Amendment.
A
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.
The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.
Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. “‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop,Commentaries on Written Laws and Their Interpretation § 51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.
a. “Right of the People.”
The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.
Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), § 2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.
What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. * * * *
This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
b. “Keep and bear Arms.”
We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.”
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.”
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union (1997) {internet}, and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States (2001) {thermal imaging device}, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”
The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone). Petitioners point to militia laws of the founding period that required militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militia-related connotation. This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.
At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. * * * *
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. * * * *
Petitioners justify their limitation of “bear arms” to the military context by pointing out the unremarkable fact that it was often used in that context—the same mistake they made with respect to “keep arms.” It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners’ inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. And the phrases used primarily in those military discussions include not only “bear arms” but also “carry arms,” “possess arms,” and “have arms”—though no one thinks that those other phrases also had special military meanings. The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant. * * * *
Justice Stevens {dissenting} places great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” He argues that this clause establishes that the drafters of the Second Amendment intended “bear Arms” to refer only to military service. It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. In any case, what Justice Stevens would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense … must sometimes have been almost overwhelming.” * * * *Thus, the most natural interpretation of Madison’s deleted text is that those opposed to carrying weapons for potential violent confrontation would not be “compelled to render military service,” in which such carrying would be required.
Finally, Justice Stevens suggests that “keep and bear Arms” was some sort of term of art, presumably akin to “hue and cry” or “cease and desist.” (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of “keep arms.”) Justice Stevens believes that the unitary meaning of “keep and bear Arms” is established by the Second Amendment’s calling it a “right” (singular) rather than “rights” (plural). There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular “right,” and the First Amendment protects the “right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.”* * * *
c. Meaning of the Operative Clause.
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ….”
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. * * * *
And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. * * * *
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.
2. Prefatory Clause.
The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State ….”
a. “Well-Regulated Militia.”
In United States v. Miller (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources.
Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15–16).” Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise … Armies”; “to provide … a Navy,” Art. I, § 8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the militia,” § 8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.
Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training.
b. “Security of a Free State.”
The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued. * * * * It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “‘free country’ ” or free polity. Moreover, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States—“each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution.
There are many reasons why the militia was thought to be “necessary to the security of a free state.” First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29 (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.
3. Relationship between Prefatory Clause and Operative Clause
We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.
The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. * * * * It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.
It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion {in his dissenting opinion} that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself. * * * *
B
Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment. * * * *
The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause.
C
Justice Stevens relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record. * * * *
D
We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. * * * *
1. Post-ratification Commentary
Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. * * * *
2. Pre-Civil War Case Law
The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. * * * *
3. Post-Civil War Legislation
In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.
Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. * * * *
4. Post-Civil War Commentators
Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. * * * *
E
We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment. * * * * {Extensive discussion of United States v. Cruikshank (1876); Presser v. Illinois (1886); United States v. Miller (1939) omitted.}
We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, and it was not until after World War II that we held a law invalid under the Establishment Clause (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. It is demonstrably not true that, as Justice Stevens claims, “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.
III
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
IV
We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster.
Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. * * * *
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions {in the DC Code}. * * * *
Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement “in such a manner as to forbid the carrying of a firearm within one’s home or possessed land without a license.” The Court of Appeals did not invalidate the licensing requirement, but held only that the District “may not prevent [a handgun] from being moved throughout one’s house.” * * * * Respondent conceded at oral argument that he does not “have a problem with … licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.
* * * * Nothing about those fire-safety laws {discussed in Breyer’s dissent} undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.
Justice Breyer points to other founding-era laws that he says “restricted the firing of guns within the city limits to at least some degree” in Boston, Philadelphia and New York. Those laws provide no support for the severe restriction in the present case. * * * *
A broader point about the laws that Justice Breyer cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties. They are akin to modern penalties for minor public-safety infractions like speeding or jaywalking. And although such public-safety laws may not contain exceptions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a “Do Not Walk” sign in order to flee an attacker, or that the Government would enforce those laws under such circumstances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place.
Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” * * * * We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
* * *
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
We affirm the judgment of the Court of Appeals.
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller (1939), provide a clear answer to that question.
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
* * * *
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment. The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment. In my view, it does not.
I
The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.
The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.
* * * *
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Caetano v. Massachusetts
577 U.S. ___ (2016)
Per Curiam
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.”
The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.”
The court next asked whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms,” (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” {in Heller}). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.
Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.”
For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Alito, with whom Justice Thomas joins, concurring in the judgment {omitted}
{includes a discussion of the domestic violence context of the case in which Caetano purchased a stun gun to protect herself from her abusive ex-boyfriend}.
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New York State Rifle and Pistol Ass’n v. Cuomo
and The Connecticut Citizens’ Defense League v. Malloy
804 F.3d 242 (2nd Cir. 2015)
cert denied, sub nom Shew v. Malloy, __ U.S. __ (2016).
José A. Cabranes, Circuit Judge {for the unanimous Second Circuit panel}:
Before the Court are two appeals challenging gun-control legislation enacted by the New York and Connecticut legislatures in the wake of the 2012 mass murders at Sandy Hook Elementary School in Newtown, Connecticut. The New York and Connecticut laws at issue prohibit the possession of certain semiautomatic “assault weapons” and large-capacity magazines. Following the entry of summary judgment in favor of defendants on the central claims in both the Western District of New York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge), plaintiffs in both suits now press two arguments on appeal. First, they challenge the constitutionality of the statutes under the Second Amendment; and second, they challenge certain provisions of the statutes as unconstitutionally vague. {Most subsequent references to vagueness are omitted}. Defendants in the New York action also cross-appeal the District Court’s invalidation of New York’s separate seven-round load limit and voiding of two statutory provisions as facially unconstitutionally vague.
We hold that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large-capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness. The particular provision of New York’s law regulating load limits, however, does not survive the requisite scrutiny. One further specific provision—Connecticut’s prohibition on the non-semiautomatic Remington 7615—unconstitutionally infringes upon the Second Amendment right. Accordingly, we AFFIRM in part the judgment of the District Court for the District of Connecticut insofar as it upheld the prohibition of semiautomatic assault weapons and large-capacity magazines, and REVERSE in part its holding with respect to the Remington. With respect to the judgment of the District Court for the Western District of New York, we REVERSE in part certain vagueness holdings, and we otherwise AFFIRM that judgment insofar as it upheld the prohibition of semiautomatic assault weapons and large-capacity magazines and invalidated the load limit.
I. Prior “Assault Weapon” Legislation
New York and Connecticut have long restricted possession of certain automatic and semiautomatic firearms that came to be known as “assault weapons.” In 1993, Connecticut’s General Assembly adopted the state’s first assault-weapon ban, which criminalized the possession of firearms “capable of fully automatic, semiautomatic or burst fire at the option of the user,” including 67 specifically enumerated semiautomatic firearms.
The following year, after five years of hearings on the harms thought to be caused by certain firearms, the U.S. Congress enacted legislation restricting the manufacture, transfer, and possession of certain “semiautomatic 1 assault weapons.” The 1994 federal statute defined “semiautomatic assault weapons” in two ways. First, it catalogued 18 specifically prohibited firearms, including, as relevant here, the Colt AR–15. Second, it introduced a “two-feature test,” which prohibited any semiautomatic firearm that contained at least two listed military-style features, including a telescoping stock, a conspicuously protruding pistol grip, a bayonet mount, a flash suppressor, and a grenade launcher. The federal statute also prohibited magazines with a capacity of more than ten rounds of ammunition, or which could be “readily restored or converted to accept” more than 10 rounds. The federal assault-weapons ban expired in 2004, pursuant to its sunset provision.
Following the passage of the federal assault-weapons ban, both New York, in 2000, and Connecticut, in 2001, enacted legislation that closely mirrored the federal statute, including the two-feature test for prohibited semiautomatic firearms. Unlike the federal statute, however, these state laws contained no sunset provisions and thus remained in force until amended by the statutes at issue here.
On December 14, 2012, a gunman shot his way into Sandy Hook Elementary School in Newtown, Connecticut and murdered twenty first-graders and six adults using a semiautomatic AR–15–type rifle with ten large-capacity magazines. This appalling attack, in addition to other recent mass shootings, provided the immediate impetus for the legislation at issue in this appeal.
II. The New York Legislation
New York enacted the Secure Ammunition and Firearms Enforcement Act (SAFE Act) on January 15, 2013. The SAFE Act expands the definition of prohibited “assault weapons” by replacing the prior two-feature test with a stricter one-feature test. As the name suggests, the new test defines a semiautomatic firearm as a prohibited “assault weapon” if it contains any one of an enumerated list of military-style features, including a telescoping stock, a conspicuously protruding pistol grip, a thumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher. This statutory definition encompasses, and thereby bans, the semiautomatic weapon used by the mass-shooter at Sandy Hook. New York law makes the possession, manufacture, transport, or disposal of an “assault weapon” a felony. Pursuant to the SAFE Act’s grandfather clause, however, pre-existing lawful owners of banned assault weapons may continue to possess them if they register those weapons with the New York State Police.
The SAFE Act also bans magazines that can hold more than ten rounds of ammunition or that can be readily restored or converted to accept more than ten rounds. Although New York had restricted possession of such magazines since 2000, the SAFE Act eliminated a grandfather clause for magazines manufactured before September 1994.
The SAFE Act’s large-capacity-magazine ban contains an additional, unique prohibition on possession of a magazine loaded with more than seven rounds of ammunition. (For the purpose of this definition, a round is a single unit of ammunition.) As originally enacted, the SAFE Act would have imposed a magazine capacity restriction of seven rounds. Because very few seven-round magazines are manufactured, however, the law was subsequently amended to impose a ten-round capacity restriction coupled with a seven-round load limit. Thus, as amended, the statute permits a New York gun owner to possess a magazine capable of holding up to ten rounds, but he may not fully load it outside of a firing range or official shooting competition.
III. The Connecticut Legislation
Several months after New York passed the SAFE Act, and after extensive public hearings and legislative and executive study, Connecticut adopted “An Act Concerning Gun Violence Prevention and Children’s Safety” on April 4, 2013, and later amended the 8 on June 18, 2013. Like its New York analogue, the Connecticut legislation replaced the state’s two-feature definition of prohibited “assault weapons” with a stricter one-feature test, using a list of military-style features similar to New York’s, including a telescoping stock, a thumbhole stock, a forward pistol grip, a flash suppressor, a grenade launcher, and a threaded barrel capable of accepting a flash suppressor or silencer. Unlike its counterpart in New York, the Connecticut legislation additionally bans 183 particular assault weapons listed by make and model, as well as “copies or duplicates” of most of those firearms. The Connecticut law makes it a felony to transport, import, sell, or possess semiautomatic “assault weapons,” and it also contains a grandfather clause permitting pre-existing owners of assault weapons to continue to possess their firearms if properly registered with the state.
The June 2013 amendment to the Connecticut legislation criminalizes the possession of “[l]arge capacity magazine[s]” that can hold, or can be “readily restored or converted to accept,” more than ten rounds of ammunition. Unlike its New York counterpart, however, the Connecticut legislation contains no additional “load limit” rule.
IV. Procedural History
Plaintiffs—a combination of advocacy groups, businesses, and individual gun owners—filed suit against the governors of New York and Connecticut and other state officials, first in the Western District of New York on March 21, 2013 and then in the District of Connecticut on May 22, 2013. In both actions, plaintiffs sought declaratory and injunctive relief for alleged infringement of their constitutional rights. Specifically, plaintiffs contended that the statutes’ prohibitions on semiautomatic assault weapons and large-capacity magazines violate their Second Amendment rights, and that numerous specific provisions of each statute are unconstitutionally vague. In the New York action, plaintiffs also challenged the seven-round load limit as a violation of the Second Amendment.
Following plaintiffs’ motions for preliminary injunctions, parties in both suits cross-moved for summary judgment. On December 31, 2013, Chief Judge Skretny of the Western District of New York granted in part and denied in part the cross-motions for summary judgment. Specifically, the District Court found that New York’s ban on assault weapons and large capacity magazines burdened plaintiffs’ Second Amendment rights, but did not violate the Second Amendment upon application of so-called intermediate scrutiny. The Court also held, however, that the seven-round load limit did not survive intermediate scrutiny. * * * * In sum, Chief Judge Skretny upheld as constitutional, upon intermediate scrutiny, the core provisions of New York’s SAFE Act restricting semiautomatic assault weapons and large-capacity magazines, but struck down certain marginal aspects of the law.
On January 30, 2014, Judge Covello of the District of Connecticut granted defendants’ motion for summary judgment in its entirety. Like his counterpart in New York, Judge Covello held that the Connecticut legislation burdened plaintiffs’ Second Amendment rights, applied intermediate scrutiny, and concluded that the prohibition on semiautomatic assault weapons and large-capacity magazines was fully consistent with the Second Amendment. * * * *
Plaintiffs thereafter appealed. In the New York action only, defendants cross-appeal the District Court’s judgment insofar as it invalidated the SAFE Act’s seven-round load limit and voided as unconstitutionally vague the SAFE Act’s prohibitions on the misspelled “muzzle break” and “semiautomatic version[s]” of an automatic rifle, shotgun, or firearm.
DISCUSSION
These appeals present two questions: first, whether the Second Amendment permits the regulation of the assault weapons and large-capacity magazines at issue here; and second, whether the challenged provisions of the statutes provide constitutionally sufficient notice of the conduct proscribed {and are void for vagueness}.
We review de novo a district court’s order granting summary judgment, construing the evidence in the light most favorable to the non-moving party. As relevant here, we also “review de novo the district court’s legal conclusions, including those interpreting and determining the constitutionality of a statute.” * * * *
V. Second Amendment Challenge
We conclude that the core challenged prohibitions of assault weapons and large-capacity magazines do not violate the Second Amendment. Guided by the teachings of the Supreme Court, our own jurisprudence, and the examples provided by our sister circuits, we adopt a two-step analytical framework, determining first whether the regulated weapons fall within the protections of the Second Amendment and then deciding and applying the appropriate level of constitutional scrutiny. Only two specific provisions—New York’s seven-round load limit, and Connecticut’s prohibition on the non-semiautomatic Remington 7615—are unconstitutional.
a. Heller and McDonald
The Second Amendment provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Our analysis of that amendment begins with the seminal decision in District of Columbia v. Heller (2008). In Heller, the Supreme Court, based on an extensive textual and historical analysis, announced that the Second Amendment’s operative clause codified a pre-existing “individual right to possess and carry weapons.” Recognizing, however, that “the right secured by the Second Amendment is not unlimited,” Heller emphasized that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Instead, the Second Amendment protects only those weapons “ ‘in common use’ ” by citizens “for lawful purposes like self-defense.”
Having established these basic precepts, Heller concluded that the District of Columbia’s ban on possession of handguns was unconstitutional under the Second Amendment. The Supreme Court noted that “handguns are the most popular weapon chosen by Americans for self-defense in the home,” where, the Court observed, “the need for defense of self, family, and property is most acute.”
Heller stopped well short of extending its rationale to other firearms restrictions. Indeed, Heller explicitly identified as “presumptively lawful” such “regulatory measures” as “prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms.” Most importantly here, Heller also endorsed the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
Aside from these broad guidelines, Heller offered little guidance for resolving future Second Amendment challenges. The Court did imply that such challenges are subject to one of “the standards of scrutiny that we have applied to enumerated constitutional rights,” though it declined to say which, accepting that many applications of the Second Amendment would remain “in doubt.”
That doubt persisted after McDonald v. City of Chicago (2010) in which the Supreme Court invalidated municipal statutes banning handguns in the home. McDonald was a landmark case in one respect—the Court held for the first time that the Fourteenth Amendment “incorporates” the Second Amendment against the states. Otherwise, McDonald did not expand upon Heller’s analysis and simply reiterated Heller’s assurances regarding the viability of many gun-control provisions. Neither Heller nor McDonald, then, delineated the precise scope of the Second Amendment or the standards by which lower courts should assess the constitutionality of firearms restrictions.
b. Analytical Rubric
Lacking more detailed guidance from the Supreme Court, this Circuit has begun to develop a framework for determining the constitutionality of firearm restrictions. It requires a two-step inquiry.
First, we consider whether the restriction burdens conduct protected by the Second Amendment. If the challenged restriction does not implicate conduct within the scope of the Second Amendment, our analysis ends and the legislation stands. Otherwise, we move to the second step of our inquiry, in which we must determine and apply the appropriate level of scrutiny.
This two-step rubric flows from the dictates of Heller and McDonald and our own precedents in Kachalsky and Decastro. It also broadly comports with the prevailing two-step approach of other courts, including the Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits, and with the approach used in “other areas of constitutional law.”
c. First Step: Whether the Second Amendment Applies
As an initial matter, then, we must determine whether the challenged legislation impinges upon conduct protected by the Second Amendment. The Second Amendment protects only “the sorts of weapons” that are (1) “in common use” and (2) “typically possessed by law-abiding citizens for lawful purposes.” We consider each requirement in turn.
i. Common Use
The parties contest whether the assault weapons at issue here are commonly owned. Plaintiffs argue that the weapons at issue are owned in large numbers by law-abiding Americans. They present statistics showing that nearly four million units of a single assault weapon, the popular AR–15, have been manufactured between 1986 and March 2013. Plaintiffs further assert that only 7.5 percent of assault-weapon owners are active law enforcement officers, and that most owners of assault weapons own only one or two such weapons, such that the banned firearms are not concentrated in a small number of homes, but rather spread widely among the gun-owning public. Defendants counter that assault weapons only represent about two percent of the nation’s firearms (admittedly amounting to approximately seven million guns). Moreover, defendants argue that the statistics inflate the number of individual civilian owners because many of these weapons are purchased by law enforcement or smuggled to criminals, and many civilian gun owners own multiple assault weapons.
This much is clear: Americans own millions of the firearms that the challenged legislation prohibits.
The same is true of large-capacity magazines, as defined by the New York and Connecticut statutes. Though fewer statistics are available for magazines, those statistics suggest that about 25 million large-capacity magazines were available in 1995, shortly after the federal assault weapons ban was enacted, and nearly 50 million such magazines—or nearly two large-capacity magazines for each gun capable of accepting one—were approved for import by 2000.
Even accepting the most conservative estimates cited by the parties and by amici, the assault weapons and large-capacity magazines at issue are “in common use” as that term was used in Heller. The D.C. Circuit reached the same conclusion in its well-reasoned decision in Heller II, which upheld the constitutionality of a District of Columbia gun-control act substantially similar to those at issue here.
To be sure, as defendants note, these assault weapons and large-capacity magazines are not as commonly owned as the handguns at issue in Heller, which were “the most popular weapon chosen by Americans for self-defense in the home.” But nothing in Heller limited its holding to handguns; indeed, the Court emphasized that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,” not just to a small subset.
ii. Typical Possession
We must next determine whether assault weapons and large-capacity magazines are “typically possessed by law-abiding citizens for lawful purposes.” While “common use” is an objective and largely statistical inquiry, “typical[ ] possess[ion]” requires us to look into both broad patterns of use and the subjective motives of gun owners.
The parties offer competing evidence about these weapons’ “typical use.” Plaintiffs suggest that assault weapons are among the safest and most effective firearms for civilian self-defense. Defendants disagree, arguing that these weapons are used disproportionately in gun crimes, rather than for lawful pursuits like self-defense and hunting.
Even if defendants are correct, however, the same could be said for the handguns in Heller. Though handguns comprise only about one-third of the nation’s firearms, by some estimates they account for 71 percent to 83 percent of the firearms used in murders and 84 percent to 90 percent of the firearms used in other violent crimes. That evidence of disproportionate criminal use did not prevent the Supreme Court from holding that handguns merited constitutional protection.
Looking solely at a weapon’s association with crime, then, is insufficient. We must also consider more broadly whether the weapon is “dangerous and unusual” in the hands of law-abiding civilians. Heller expressly highlighted “weapons that are most useful in military service,” such as the fully automatic M–16 rifle, as weapons that could be banned without implicating the Second Amendment. But this analysis is difficult to manage in practice. Because the AR–15 is “the civilian version of the military’s M–16 rifle,” defendants urge that it should be treated identically for Second Amendment purposes. But the Supreme Court’s very choice of descriptor for the AR–15—the “civilian version”—could instead imply that such guns are “traditionally have been widely accepted as lawful.”
Ultimately, then, neither the Supreme Court’s categories nor the evidence in the record cleanly resolves the question of whether semiautomatic assault weapons and large-capacity magazines are “typically possessed by law-abiding citizens for lawful purposes.” Confronting this record, Chief Judge Skretny reasonably found that reliable empirical evidence of lawful possession for lawful purposes was “elusive,” beyond ownership statistics. We agree.
In the absence of clearer guidance from the Supreme Court or stronger evidence in the record, we follow the approach taken by the District Courts and by the D.C. Circuit in Heller II and assume for the sake of argument that these “commonly used” weapons and magazines are also “typically possessed by law-abiding citizens for lawful purposes.” In short, we proceed on the assumption that these laws ban weapons protected by the Second Amendment. This assumption is warranted at this stage, because, the statutes at issue nonetheless largely pass constitutional muster.
d. Second Step: Level of Scrutiny
Having concluded that the statutes impinge upon Second Amendment rights, we must next determine and apply the appropriate level of scrutiny. We employ the familiar “levels of scrutiny” analysis introduced in the famous Footnote Four of United States v. Carolene Products Co., and begin by asking which level of judicial “scrutiny” applies.
Though Heller did not specify the precise level of scrutiny applicable to firearms regulations, it rejected mere rational basis review as insufficient for the type of regulation challenged there. At the same time, this Court and our sister Circuits have suggested that heightened scrutiny is not always appropriate. In determining whether heightened scrutiny applies, we consider two factors: (1) “how close the law comes to the core of the Second Amendment right” and (2) “the severity of the law’s burden on the right.” Laws that neither implicate the core protections of the Second Amendment nor substantially burden their exercise do not receive heightened scrutiny.
i. The Core of the Right
By their terms, the statutes at issue implicate the core of the Second Amendment’s protections by extending into the home, “where the need for defense of self, family and property is most acute.” Semiautomatic assault weapons and large-capacity magazines are commonly owned by many law-abiding Americans, and their complete prohibition, including within the home, requires us to consider the scope of Second Amendment guarantees “at their zenith.” At the same time, the regulated weapons are not nearly as popularly owned and used for self-defense as the handgun, that “quintessential self-defense weapon.” Thus these statutes implicate Second Amendment rights, but not to the same extent as the laws at issue in Heller and McDonald.
ii. The Severity of the Burden
In Decastro {United States v. Decastro, 2nd Cir. 2012} we explained that heightened scrutiny need not apply to “any marginal, incremental or even appreciable restraint on the right to keep and bear arms.” Rather, “heightened scrutiny is triggered only by those restrictions that (like the complete prohibition on handguns struck down in Heller) operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for . . . lawful purposes.” Our later decision in Kachalsky {v. Cty of Westchester, 2nd Cir. 2012} confirmed this approach, concluding that “some form of heightened scrutiny would be appropriate” for regulations that impose a “substantial burden” on Second Amendment rights.
The practice of applying heightened scrutiny only to laws that “burden the Second Amendment right substantially” is, as we noted in Decastro, broadly consistent with our approach to other fundamental constitutional rights, including those protected by the First and Fourteenth Amendments. We typically require a threshold showing to trigger heightened scrutiny of laws alleged to implicate such constitutional contexts as takings, voting rights, and free speech. Though we have historically expressed “hesitan[ce] to import substantive First Amendment principles wholesale into Second Amendment jurisprudence,” we readily “consult principles from other areas of constitutional law, including the First Amendment” in determining whether a law “substantially burdens Second Amendment rights.”
The scope of the legislative restriction and the availability of alternatives factor into our analysis of the “degree to which the challenged law burdens the right.” No “substantial burden” exists—and hence heightened scrutiny is not triggered—“if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense.”
The laws at issue are both broad and burdensome. Unlike statutes that “merely regulate the manner in which persons may exercise their Second Amendment rights,” these laws impose an outright ban statewide. The “absolute prohibition” instituted in both states thus creates a “serious encroachment” on the Second Amendment right. These statutes are not mere “marginal, incremental or even appreciable restraint[s] on the right to keep and bear arms.” They impose a substantial burden on Second Amendment rights and therefore trigger the application of some form of heightened scrutiny.
Heightened scrutiny need not, however, “be akin to strict scrutiny when a law burdens the Second Amendment”—particularly when that burden does not constrain the Amendment’s “core” area of protection. The instant bans are dissimilar from D.C.’s unconstitutional prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose” of self-defense. New York and Connecticut have not banned an entire class of arms. Indeed, plaintiffs themselves acknowledge that there is no class of firearms known as “semiautomatic assault weapons”—a descriptor they call purely political in nature. Plaintiffs nonetheless argue that the legislation does prohibit “firearms of a universally recognized type—semiautomatic.” Not so. Rather, both New York and Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more enumerated military-style features. As Heller makes plain, the fact that the statutes at issue do not ban “an entire class of ‘arms’ ” makes the restrictions substantially less burdensome. In both states, citizens may continue to arm themselves with non-semiautomatic weapons or with any semiautomatic gun that does not contain any of the enumerated military-style features. Similarly, while citizens may not acquire high-capacity magazines, they can purchase any number of magazines with a capacity of ten or fewer rounds. In sum, numerous “alternatives remain for law-abiding citizens to acquire a firearm for self-defense.” We agree with the D.C. Circuit that “the prohibition of semi-automatic rifles and large-capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves.” The burden imposed by the challenged legislation is real, but it is not “severe.”
Accordingly, we conclude that intermediate, rather than strict, scrutiny is appropriate. This conclusion coheres not only with that reached by the D.C. Circuit when considering substantially similar gun-control laws, but also with the analyses undertaken by other courts, many of which have applied intermediate scrutiny to laws implicating the Second Amendment.
e. Application of Intermediate Scrutiny
Though “intermediate scrutiny” may have different connotations in different contexts, here the key question is whether the statutes at issue are “substantially related to the achievement of an important governmental interest.” It is beyond cavil that both states have “substantial, indeed compelling, governmental interests in public safety and crime prevention.” We need only inquire, then, whether the challenged laws are “substantially related” to the achievement of that governmental interest. We conclude that the prohibitions on semiautomatic assault weapons and large-capacity magazines meet this standard.
i. Prohibition on “Assault Weapons”
To survive intermediate scrutiny, the “fit between the challenged regulation [and the government interest] need only be substantial, not perfect.” Unlike strict scrutiny analysis, we need not ensure that the statute is “narrowly tailored” or the “least restrictive available means to serve the stated governmental interest.” Moreover, we have observed that state regulation of the right to bear arms “has always been more robust” than analogous regulation of other constitutional rights. So long as the defendants produce evidence that “fairly support[s]” their rationale, the laws will pass constitutional muster.
In making this determination, we afford “substantial deference to the predictive judgments of the legislature.” We remain mindful that, “[i]n the context of firearm regulation, the legislature is ‘far better equipped than the judiciary’ to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks.” Our role, therefore, is only to assure ourselves that, in formulating their respective laws, New York and Connecticut have “drawn reasonable inferences based on substantial evidence.”
Both states have done so with respect to their prohibitions on certain semiautomatic firearms. At least since the enactment of the federal assault-weapons ban, semiautomatic assault weapons have been understood to pose unusual risks. When used, these weapons tend to result in more numerous wounds, more serious wounds, and more victims. These weapons are disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown. They are also disproportionately used to kill law enforcement officers: one study shows that between 1998 and 2001, assault weapons were used to gun down at least twenty percent of officers killed in the line of duty.
The record reveals that defendants have tailored the legislation at issue to address these particularly hazardous weapons. The dangers posed by some of the military-style features prohibited by the statutes—such as grenade launchers and silencers—are manifest and incontrovertible. As for the other enumerated military-style features—such as the flash suppressor, protruding grip, and barrel shrouds—New York and Connecticut have determined, as did the U.S. Congress, that the “net effect of these military combat features is a capability for lethality—more wounds, more serious, in more victims—far beyond that of other firearms in general, including other semiautomatic guns.” Indeed, plaintiffs explicitly contend that these features improve a firearm’s “accuracy,” “comfort,” and “utility.” This circumlocution is, as Chief Judge Skretny observed, a milder way of saying that these features make the weapons more deadly.
The legislation is also specifically targeted to prevent mass shootings like that in Newtown, in which the shooter used a semiautomatic assault weapon. Plaintiffs complain that mass shootings are “particularly rare events” and thus, even if successful, the legislation will have a “minimal impact” on most violent crime. That may be so. But gun-control legislation “need not strike at all evils at the same time” to be constitutional.
Defendants also have adduced evidence that the regulations will achieve their intended end of reducing circulation of assault weapons among criminals. Plaintiffs counter—without record evidence—that the statutes will primarily disarm law-abiding citizens and will thus impair the very public-safety objectives they were designed to achieve. Given the dearth of evidence that law-abiding citizens typically use these weapons for self-defense, plaintiffs’ concerns are speculative at best, and certainly not strong enough to overcome the “substantial deference” we owe to “predictive judgments of the legislature” on matters of public safety. The mere possibility that some subset of people intent on breaking the law will indeed ignore these statutes does not make them unconstitutional.
Ultimately, “[i]t is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments.” We must merely ensure that the challenged laws are substantially—even if not perfectly—related to the articulated governmental interest. The prohibition of semiautomatic assault weapons passes this test.
ii. Prohibition on Large–Capacity Magazines
The same logic applies a fortiori to the restrictions on large-capacity magazines. The record evidence suggests that large-capacity magazines may “present even greater dangers to crime and violence than assault weapons alone, in part because they are more prevalent and can be and are used in both assault weapons and non-assault weapons.” Large-capacity magazines are disproportionately used in mass shootings, like the one in Newtown, in which the shooter used multiple large-capacity magazines to fire 154 rounds in less than five minutes. Like assault weapons, large-capacity magazines result in “more shots fired, persons wounded, and wounds per victim than do other gun attacks.” Professor Christopher Koper, a firearms expert relied upon by all parties in both states, stated that it is “particularly” the ban on large-capacity magazines that has the greatest “potential to prevent and limit shootings in the state over the long-run.”
We therefore conclude that New York and Connecticut have adequately established a substantial relationship between the prohibition of both semiautomatic assault weapons and large-capacity magazines and the important—indeed, compelling—state interest in controlling crime. These prohibitions survive intermediate scrutiny.
iii. Seven–Round Load Limit
Though the key provisions of both statutes pass constitutional muster on this record, another aspect of New York’s SAFE Act does not: the seven-round load limit, which makes it “unlawful for a person to knowingly possess an ammunition feeding device where such device contains more than seven rounds of ammunition.”
As noted above, the seven-round load limit was a second-best solution. New York determined that only magazines containing seven rounds or fewer can be safely possessed, but it also recognized that seven-round magazines are difficult to obtain commercially. Its compromise was to permit gun owners to use ten-round magazines if they were loaded with seven or fewer rounds.
On the record before us, we cannot conclude that New York has presented sufficient evidence that a seven-round load limit would best protect public safety. Here we are considering not a capacity restriction, but rather a load limit. Nothing in the SAFE Act will outlaw or reduce the number of ten-round magazines in circulation. It will not decrease their availability or in any way frustrate the access of those who intend to use ten-round magazines for mass shootings or other crimes. It is thus entirely untethered from the stated rationale of reducing the number of assault weapons and large capacity magazines in circulation. New York has failed to present evidence that the mere existence of this load limit will convince any would-be malefactors to load magazines capable of holding ten rounds with only the permissible seven.
To be sure, the mere possibility of criminal disregard of the laws does not foreclose an attempt by the state to enact firearm regulations. But on intermediate scrutiny review, the state cannot “get away with shoddy data or reasoning.” To survive intermediate scrutiny, the defendants must show “reasonable inferences based on substantial evidence” that the statutes are substantially related to the governmental interest. With respect to the load limit provision alone, New York has failed to do so.
VI.
Vagueness Challenge
{omitted}
CONCLUSION
To summarize, we hold as follows:
(1) The core prohibitions by New York and Connecticut of assault weapons and large-capacity magazines do not violate the Second Amendment.
(a) We assume that the majority of the prohibited conduct falls within the scope of Second Amendment protections. The statutes are appropriately evaluated under the constitutional standard of “intermediate scrutiny”—that is, whether they are “substantially related to the achievement of an important governmental interest.”
(b) Because the prohibitions are substantially related to the important governmental interests of public safety and crime reduction, they pass constitutional muster.
We therefore AFFIRM the relevant portions of the judgments of the Western District of New York and the District of Connecticut insofar as they upheld the constitutionality of state prohibitions on semiautomatic assault weapons and large-capacity magazines.
(2) We hold that the specific prohibition on the non-semiautomatic Remington 7615 falls within the scope of Second Amendment protection and subsequently fails intermediate scrutiny. Accordingly, we REVERSE that limited portion of the judgment of the District of Connecticut. In doing so, we emphasize the limited nature of our holding with respect to the Remington 7615, in that it merely reflects the presumption required by the Supreme Court in District of Columbia v. Heller that the Second Amendment extends to all bearable arms, and that the State, by failing to present any argument at all regarding this weapon or others like it, has failed to rebut that presumption. We do not foreclose the possibility that States could in the future present evidence to support such a prohibition.
(3) New York’s seven-round load limit does not survive intermediate scrutiny in the absence of requisite record evidence and a substantial relationship between the statutory provision and important state safety interests. We therefore AFFIRM the judgment of the Western District of New York insofar as it held this provision unconstitutional.
(4) No challenged provision in either statute is unconstitutionally vague. Accordingly, we AFFIRM the judgments of the District of Connecticut and the Western District of New York insofar as they denied vagueness challenges to provisions involving the capacity of tubular magazines, “copies or duplicates,” or a firearm’s ability to “be readily restored or converted.” We REVERSE the judgment of the Western District of New York insofar as it found language pertaining to “versions” and “muzzle breaks” to be unconstitutionally vague.
Check Your Understanding
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Notes
1. Be prepared to discuss the holdings of Heller and McDonald. Pay attention to the chronological sequence of cases. Why would Second Amendment advocates advance the claims in Heller before those in McDonald?
2. Like McDonald, Heller has extensive opinions totaling over 150 pages and our version is again heavily edited. Do you agree with the majority’s textual reading of the Second Amendment? Can you tell what the contrary interpretation would be?
3. Be prepared to apply the “analytic rubric” of the Second Circuit in New York State Rifle and Pistol Ass’n v. Cuomo to any regulation.
Note: New York State Rifle and Pistol Ass’n v. City of New York
In the 2019-2020 Term, the United States Supreme Court granted certiorari to another Second Circuit opinion applying the settled “analytic framework” to a New York City gun regulation. New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), cert. granted New York State Rifle & Pistol Ass’n, Inc. v. City of New York, N.Y., ___ U.S.___, 139 S. Ct. 939, 203 L. Ed. 2d 130 (2019).
The regulation at issue in New York State Rifle & Pistol v. City of New York was part of the New York City gun licensing scheme, Title 38, Chapter Five, Section 23 of the Rules of the City of New York (“RCNY”), under which an individual with a “premises license” for a handgun may not remove the handgun “from the address specified on the license except as otherwise provided in this chapter.” 38 RCNY § 5-23(a)(1). Under Rule 5-23 (“the Rule”), the licensee “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” Id. § 5-23(a)(3). The New York Police Department–License Division (“License Division”) has defined “authorized” facilities, among other requirements, to be “those located in New York City.” The Plaintiffs sought to remove handguns from the licensed premises for the purposes of going to shooting ranges and engaging in target practice outside New York City as well as, in the case of one Plaintiff, transporting the handgun to a second home in upstate New York.
The Second Circuit upheld the constitutionality of the rule, applying intermediate scrutiny because the burden was not substantial, reasoning that one could obtain a gun at the firing range or obtain a license in the location of the second home for a second gun. The Second Circuit concluded that the Rule makes a contribution to an important state interest in public safety substantial enough to easily justify the insignificant and indirect costs it imposes on Second Amendment interests.
The Second Circuit also held that the New York City rule did not violate the right to interstate travel (or the Commerce Clause).
After the United States Supreme Court granted certiorari, New York City amended its rule, effective July 21, 2019, seehttps://rules.cityofnewyork.us/content/premise-handgun-license-amendment.
The amended rule added specific language to provide that owners of a premises license for a handgun may transport the licensed firearm to
(i) Another residence or place of business where the licensee is authorized to possess such handgun.
(ii) A small arms range/shooting club authorized by law to operate as such. Such range or club may be within or outside New York City.
(iii) A shooting competition at which the licensee is authorized to possess such handgun consistent with the law applicable at the place of such competition.
In a brief per curiam opinion, the Court held that given the New York City amended rule, the “claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot,” New York State Rifle & Pistol Ass’n, Inc. v. City of New York, New York, 590 U.S. ___, 140 S. Ct. 1525, 206 L. Ed. 2d 798 (2020). The Court did remand for consideration of whether a damages claim could be added. Justice Alito dissented, joined by Justice Gorsuch and in part by Justice Thomas. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.11%3A_CHAPTER_NINE-_The_Second_Amendment.txt |
Lochner v. New York
198 U.S. 45 (1905)
Peckham, J., for the Court.
The indictment, it will be seen, charges that the plaintiff in error violated the 110th section of article 8, chapter 415, of the Laws of 1897, known as the labor law of the state of New York, in that he wrongfully and unlawfully required and permitted an employee working for him to work more than sixty hours in one week. There is nothing in any of the opinions delivered in this case, either in the supreme court or the court of appeals of the state, which construes the section, in using the word ‘required,’ as referring to any physical force being used to obtain the labor of an employee. It is assumed that the word means nothing more than the requirement arising from voluntary contract for such labor in excess of the number of hours specified in the statute. * * * * It is not an act merely fixing the number of hours which shall constitute a legal day’s work, but an absolute prohibition upon the employer permitting, under any circumstances, more than ten hours’ work to be done in his establishment. The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it.
The statute necessarily interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each state in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the 14th Amendment was not designed to interfere.
* * * * {W}hen the state, by its legislature, in the assumed exercise of its police powers, has passed an act which seriously limits the right to labor or the right of contract in regard to their means of livelihood between persons who are sui juris (both employer and employee), it becomes of great importance to determine which shall prevail,-the right of the individual to labor for such time as he may choose, or the right of the state to prevent the individual from laboring, or from entering into any contract to labor, beyond a certain time prescribed by the state. * * * *
The latest case decided by this court, involving the police power, is that of Jacobson v. Massachusetts (1905) * * * * related to compulsory vaccination, and the law was held vaild as a proper exercise of the police powers with reference to the public health. It was stated in the opinion that it was a case ‘of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation, adopted in execution of its provisions, for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease.’ That case is also far from covering the one now before the court.
* * * * It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext, – become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor.
This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the state? and that question must be answered by the court.
The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state, interfering with their independence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare, of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.
It is a question of which of two powers or rights shall prevail,-the power of the state to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.
* * * * We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker. If this statute be valid, and if, therefore, a proper case is made out in which to deny the right of an individual, sui juris, as employer or employee, to make contracts for the labor of the latter under the protection of the provisions of the Federal Constitution, there would seem to be no length to which legislation of this nature might not go. * * * * We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. Very likely physicians would not recommend the exercise of that or of any other trade as a remedy for ill health. Some occupations are more healthy than others, but we think there are none which might not come under the power of the legislature to supervise and control the hours of working therein, if the mere fact that the occupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the government. It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank’s, a lawyer’s, or a physician’s clerk, or a clerk in almost any kind of business, would all come under the power of the legislature, on this assumption. No trade, no occupation, no mode of earning one’s living, could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the ability of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the business of bankers, brokers, lawyers, real estate, and many other kinds of business, aided by many clerks, messengers, and other employees. Upon the assumption of the validity of this act under review, it is not possible to say that an act, prohibiting lawyers’ or bank clerks, or others, from contracting to labor for their employers more than eight hours a day would be invalid. It might be said that it is unhealthy to work more than that number of hours in an apartment lighted by artificial light during the working hours of the day; that the occupation of the bank clerk, the lawyer’s clerk, the real estate clerk, or the broker’s clerk, in such offices is therefore unhealthy, and the legislature, in its paternal wisdom, must, therefore, have the right to legislate on the subject of, and to limit, the hours for such labor; and, if it exercises that power, and its validity be questioned, it is sufficient to say, it has reference to the public health; it has reference to the health of the employees condemned to labor day after day in buildings where the sun never shines; it is a health law, and therefore it is valid, and cannot be questioned by the courts.
It is also urged, pursuing the same line of argument, that it is to the interest of the state that its population should be strong and robust, and therefore any legislation which may be said to tend to make people healthy must be valid as health laws, enacted under the police power. If this be a valid argument and a justification for this kind of legislation, it follows that the protection of the Federal Constitution from undue interference with liberty of person and freedom of contract is visionary, wherever the law is sought to be justified as a valid exercise of the police power. Scarcely any law but might find shelter under such assumptions, and conduct, properly so called, as well as contract, would come under the restrictive sway of the legislature. Not only the hours of employees, but the hours of employers, could be regulated, and doctors, lawyers, scientists, all professional men, as well as athletes and artisans, could be forbidden to fatigue their brains and bodies by prolonged hours of exercise, lest the fighting strength of the state be impaired. We mention these extreme cases because the contention is extreme. We do not believe in the soundness of the views which uphold this law. On the contrary, we think that such a law as this, although passed in the assumed exercise of the police power, and as relating to the public health, or the health of the employees named, is not within that power, and is invalid. The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts. * * * *
It was further urged on the argument that restricting the hours of labor in the case of bakers was valid because it tended to cleanliness on the part of the workers, as a man was more apt to be cleanly when not overworked, and if cleanly then his ‘output’ was also more likely to be so. What has already been said applies with equal force to this contention. We do not admit the reasoning to be sufficient to justify the claimed right of such interference. The state in that case would assume the position of a supervisor, or pater familias, over every act of the individual, and its right of governmental interference with his hours of labor, his hours of exercise, the character thereof, and the extent to which it shall be carried would be recognized and upheld. In our judgment it is not possible in fact to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workman. The connection, if any exist, is too shadowy and thin to build any argument for the interference of the legislature. If the man works ten hours a day it is all right, but if ten and a half or eleven his health is in danger and his bread may be unhealthy, and, therefore, he shall not be permitted to do it. This, we think, is unreasonable and entirely arbitrary. When assertions such as we have adverted to become necessary in order to give, if possible, a plausible foundation for the contention that the law is a ‘health law,’ it gives rise to at least a suspicion that there was some other motive dominating the legislature than the purpose to subserve the public health or welfare.
This interference on the part of the legislatures of the several states with the ordinary trades and occupations of the people seems to be on the increase. * * * *
It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives. * * * * It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men, Sui juris), in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees. Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.
The judgment of the Court of Appeals of New York, as well as that of the Supreme Court and of the County Court of Oneida County, must be reversed and the case remanded to the County Court for further proceedings not inconsistent with this opinion.
REVERSED.
Mr. Justice Holmes dissenting:
I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.
This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics. The other day we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts. * * * * Two years ago we upheld the prohibition of sales of stock on margins, or for future delivery, in the Constitution of California. Otis v. Parker (1903). The decision sustaining an eight-hour law for miners is still recent. Holden v. Hardy (1898). Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word ‘liberty,’ in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.
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Meyer v. Nebraska
262 U.S. 390 (1923)
Mr. Justice McReynolds delivered the opinion of the Court.
Plaintiff in error was tried and convicted in the district court for Hamilton county, Nebraska, under an information which charged that on May 25, 1920, while an instructor in Zion Parochial School he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of 10 years, who had not attained and successfully passed the eighth grade. The information is based upon ‘An act relating to the teaching of foreign languages in the state of Nebraska,’ approved April 9, 1919 (Laws 1919, c. 249), which follows:
‘Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language than the English language.
‘Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides.
‘Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars (\$25), nor more than one hundred dollars (\$100), or be confined in the county jail for any period not exceeding thirty days for each offense.
‘Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.’
The Supreme Court of the state affirmed the judgment of conviction. * * * *
The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment: ‘No state … shall deprive any person of life, liberty or property without due process of law.’
While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.
The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. * * * * Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life; and nearly all the states, including Nebraska, enforce this obligation by compulsory laws.
Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment.
The challenged statute forbids the teaching in school of any subject except in English; also the teaching of any other language until the pupil has attained and successfully passed the eighth grade, which is not usually accomplished before the age of twelve. The Supreme Court of the state has held that ‘the so-called ancient or dead languages’ are not ‘within the spirit or the purpose of the act.’ Latin, Greek, Hebrew are not proscribed; but German, French, Spanish, Italian, and every other alien speech are within the ban. Evidently the Legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.
It is said the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals, and ‘that the English language should be and become the mother tongue of all children reared in this state.’ It is also affirmed that the foreign born population is very large, that certain communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere, and that the children are thereby hindered from becoming citizens of the most useful type and the public safety is imperiled.
That the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution— a desirable end cannot be promoted by prohibited means.
For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:
‘That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. … The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.’
In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.
The desire of the Legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the state and conflict with rights assured to plaintiff in error. The interference is plain enough and no adequate reason therefor in time of peace and domestic tranquility has been shown.
The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. * * * *As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.
The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
REVERSED.
Pierce v. Society of Sisters
268 U.S. 510 (1925)
Mr. Justice McReynolds delivered the opinion of the Court.
These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining appellants from threatening or attempting to enforce the Compulsory Education Act 1 adopted November 7, 1922 * * * * by the voters of Oregon. They present the same points of law; there are no controverted questions of fact. Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for their protection.
The challenged act, effective September 1, 1926, requires every parent, guardian, or other person having control or charge or custody of a child between 8 and 16 years to send him ‘to a public school for the period of time a public school shall be held during the current year’ in the district where the child resides; and failure so to do is declared a misdemeanor. There are exemptions-not specially important here-for children who are not normal, or who have completed the eighth grade, or whose parents or private teachers reside at considerable distances from any public school, or who hold special permits from the county superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between 8 and 16, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.
Appellee the Society of Sisters is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between 8 and 16. In its primary schools many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under appellee’s charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative-the annual income from primary schools exceeds \$30,000-and the successful conduct of this requires long time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute.
After setting out the above facts, the Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that unless enforcement of the measure is enjoined the corporation’s business and property will suffer irreparable injury.
Appellee Hill Military Academy is a private corporation organized in 1908 under the laws of Oregon, engaged in owning, operating, and conducting for profit an elementary, college preparatory, and military training school for boys between the ages of 5 and 21 years. The average attendance is 100, and the annual fees received for each student amount to some \$800. The elementary department is divided into eight grades, as in the public schools; the college preparatory department has four grades, similar to those of the public high schools; the courses of study conform to the requirements of the state board of education. Military instruction and training are also given, under the supervision of an army officer. It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs, long time contracts must be made for supplies, equipment, teachers, and pupils. Appellants, law officers of the state and county, have publicly announced that the Act of November 7, 1922, is valid and have declared their intention to enforce it. By reason of the statute and threat of enforcement appellee’s business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn.
* * * * The {three judge} court ruled that the Fourteenth Amendment guaranteed appellees against the deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. * * * *
No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.
The inevitable practical result of enforcing the act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the state of Oregon. Appellees are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students, or the state. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education.
Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. * * * *
The decrees below are affirmed.
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Notes
1. Lochner gives its name to the so-called Lochner Era which is generally thought to begin with Alleyer v. Louisana, 165 U.S. 578 (1897) and to end with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) in which the Court upheld a minimum wage law. In the mid-1930s, the United States was in the midst of the Great Depression and President Franklin Delano Roosevelt was exerting political pressure to “convince” the Court to sustain economic legislation.
The Lochner era was marked by the Court’s tendency to declare laws unconstitutional, often but not always on substantive due process grounds. Generally speaking, the laws declared unconstitutional sought to regulate businesses and were deemed to interfere with the “liberty of contract.” This is sometimes called “economic liberty” and has adherents today.
The generally accepted estimate of laws declared unconstitutional by the Court during the 40 year Lochner era is 200, but again not all of these were on due process grounds. (For example, in Hammer v. Dagenhart, 247 U.S. 251 (1918), the Court declared a Congressional statute seeking to regulate child labor as beyond the power of Congress). Nevertheless, the Lochner era is closely associated with “liberty,” due process, and the issue of unenumerated rights.
2. In Williamson v. Lee Optical Co., 348 U.S. 483 (1955), the Court, in an opinion by Justice Douglas reversed a lower court’s finding that an Oklahoma statute regulating opticians violated the Due Process Clause. The statute regulated the various duties of optometrists and opticians: its effect was to “forbid the optician from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist. In practical effect, it means that no optician can fit old glasses into new frames or supply a lens, whether it be a new lens or one to duplicate a lost or broken lens, without a prescription.” The Court stated:
The Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. It appears that in many cases the optician can easily supply the new frames or new lenses without reference to the old written prescription. It also appears that many written prescriptions contain no directive data in regard to fitting spectacles to the face. But in some cases the directions contained in the prescription are essential, if the glasses are to be fitted so as to correct the particular defects of vision or alleviate the eye condition. The legislature might have concluded that the frequency of occasions when a prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses. Likewise, when it is necessary to duplicate a lens, a written prescription may or may not be necessary. But the legislature might have concluded that one was needed often enough to require one in every case. Or the legislature may have concluded that eye examinations were so critical, not only for correction of vision but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert. To be sure, the present law does not require a new examination of the eyes every time the frames are changed or the lenses duplicated. For if the old prescription is on file with the optician, he can go ahead and make the new fitting or duplicate the lenses. But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. We emphasize again what Chief Justice Waite said in Munn v. Illinois (1876), “For protection against abuses by legislatures the people must resort to the polls, not to the courts.”
3. The “Ghost of Lochner” is said to “haunt” substantive due process. If people should “resort to the polls” for relief from laws that infringe their “fundamental rights,” the courts would be rendered irrelevant in such cases. Given that there are successful substantive due process challenges, the issue in post-Lochner era cases is how the courts avoid the error of Lochner.
4. Both Meyer v. Nebraska and Pierce v. Society of Sisters are Lochner era cases, but they are also considered foundational cases for privacy doctrine, especially family privacy. Be prepared to discuss the passages and arguments in the cases that are more closely related to economic liberty and those that are more closely related to family privacy.
Griswold v. Connecticut
381 U.S. 479 (1965)
Mr. Justice Douglas delivered the opinion of the Court.
Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven – a center open and operating from November 1 to November 10, 1961, when appellants were arrested.
They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.
The statutes whose constitutionality is involved in this appeal are 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:
“Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”
Section 54-196 provides:
“Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”
The appellants were found guilty as accessories and fined \$100 each, against the claim that the accessory statute as so applied violated the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed. The Supreme Court of Errors affirmed that judgment. We noted probable jurisdiction.
We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship. * * * *
Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New York (1905) should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v. Parrish (1937); Williamson v. Lee Optical Co. (1955). We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice – whether public or private or parochial – is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
By Pierce v. Society of Sisters, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach – indeed the freedom of the entire university community. Without those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.
In NAACP v. Alabama (1958) we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid “as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.” Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of “association” that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. In Schware v. Board of Bar Examiners (1957) we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man’s “association with that Party” was not shown to be “anything more than a political faith in a political party” and was not action of a kind proving bad moral character.
Those cases involved more than the “right of assembly” – a right that extends to all irrespective of their race or ideology. The right of “association,” like the right of belief is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Fourth and Fifth Amendments were described in Boyd v. United States (1886), as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” We recently referred in Mapp v. Ohio (1961) to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”
We have had many controversies over these penumbral rights of “privacy and repose.” These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Reversed.
Mr.Justice Goldberg, whom The Chief Justice and Mr. Justice Brennan join, concurring.
I agree with the Court that Connecticut’s birth-control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that “due process” as used in the Fourteenth Amendment incorporates all of the first eight Amendments I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment. I add these words to emphasize the relevance of that Amendment to the Court’s holding. * * * *
While this Court has had little occasion to interpret the Ninth Amendment, “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison (1803). In interpreting the Constitution, “real effect should be given to all the words it uses.” The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Emphasis added.)
* * * * {t}he Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. * * * *The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.
* * * * In sum, I believe that the right of privacy in the marital relation is fundamental and basic – a personal right “retained by the people” within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners’ convictions must therefore be reversed.
Mr. Justice Harlan, concurring in the judgment.
I fully agree with the judgment of reversal, but find myself unable to join the Court’s opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers Black and Stewart in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.
* * * * In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values “implicit in the concept of ordered liberty,” Palko v. Connecticut (1937). * * * *
While I could not more heartily agree that judicial “self restraint” is an indispensable ingredient of sound constitutional adjudication, I do submit that the formula suggested for achieving it is more hollow than real. “Specific” provisions of the Constitution, no less than “due process,” lend themselves as readily to “personal” interpretations by judges whose constitutional outlook is simply to keep the Constitution in supposed “tune with the times.” * * * *
Mr. Justice White, concurring in the judgment.
In my view this Connecticut law as applied to married couples deprives them of “liberty” without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut’s aiding and abetting statute. * * * *
Mr. Justice Stewart, whom Mr. Justice Black joins, dissenting.
Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.
In the course of its opinion the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.
We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the “guide” in this case. With that much I agree. There is no claim that this law, duly enacted by the Connecticut Legislature is unconstitutionally vague. There is no claim that the appellants were denied any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as a proper instrument for determining “the wisdom, need, and propriety” of state laws. Lochner v. New York (1905).
* * * * What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy “created by several fundamental constitutional guarantees.” With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.
At the oral argument in this case we were told that the Connecticut law does not “conform to current community standards.” But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases “agreeably to the Constitution and laws of the United States.” It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.
Check Your Understanding
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Roe v. Wade
410 U.S. 113 (1973)
Mr. Justice Blackmun delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now-vindicated dissent in Lochner v. New York (1905):
“[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State’s Penal Code. These make it a crime to “procure an abortion,” as therein defined, or to attempt one, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Similar statutes are in existence in a majority of the States.
Texas first enacted a criminal abortion statute in 1854. * * * *
II
Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue “on behalf of herself and all other women” similarly situated. * * * *
* * * * On the merits, the District Court held that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,” and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. * * * *
III – IV
{discussion of procedural issues, standing, and ripeness, and abstention omitted}
V
The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut (1965); Eisenstadt v. Baird (1972); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
* * * *It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
* * * *
{The Court discussed recent proceedings by the American Medical Ass’n and then continued to the American Bar Ass’n}: At its meeting in February 1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. We set forth the Act in full in the margin. {The ABA position allowed abortions performed by medical doctors within 20 weeks of commencement of pregnancy and after that time if the physician has “reasonable cause to believe” (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years.”}
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis. * * * *
Modern medical techniques have altered this situation. * * * * Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.
The third reason is the State’s interest – some phrase it in terms of duty – in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
* * * * It is with these interests, and the weight to be attached to them, that this case is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill of Rights, Griswold v. Connecticut (1965); in the Ninth Amendment, id. (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia (1967); procreation, Skinner v. Oklahoma (1942); contraception, Eisenstadt v. Baird (1972); family relationships, Prince v. Massachusetts (1944); and child rearing and education, Pierce v. Society of Sisters (1925), Meyer v. Nebraska (1923).
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts (1905) (vaccination); Buck v. Bell (1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. * * * * {Although} others have sustained state statutes.
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.
In the recent abortion cases, courts have recognized these principles. Those striking down state laws have generally scrutinized the State’s interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State’s determinations to protect health or prenatal life are dominant and constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute’s infringement upon Roe’s rights was necessary to support a compelling state interest, and that, although the appellee presented “several compelling justifications for state presence in the area of abortions,” the statutes outstripped these justifications and swept “far beyond any areas of compelling state interest.” Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
A
The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in § 2 and § 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.
All this, together with our observation, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. * * * * This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.
B
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland’s Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this “ensoulment” theory from those in the Church who would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a “process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the “morning-after” pill, implantation of embryos, artificial insemination, and even artificial wombs.
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. * * * * In short, the unborn have never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”
With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
2. The State may define the term “physician,” as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.
* * * * This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case. * * * *
Mr. Justice Rehnquist, dissenting.
The Court’s opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.
I
{discussion of standing omitted}
II
Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.
If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. * * * *
But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co. (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.
The Court eschews the history of the Fourteenth Amendment in its reliance on the “compelling state interest” test. But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.
While the Court’s opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York (1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be “compelling.” The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.
The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and “has remained substantially unchanged to the present time.”
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
III
Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court’s opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that, at later periods of pregnancy Texas might impose these self-same statutory limitations on abortion. My understanding of past practice is that a statute found to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply “struck down” but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v. Hopkins (1886).
For all of the foregoing reasons, I respectfully dissent.
Check Your Understanding
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Washington v. Glucksberg
521 U.S. 702 (1997)
Chief Justice Rehnquist delivered the opinion of the Court.
The question presented in this case is whether Washington’s prohibition against “caus[ing]” or “aid[ing]” a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not.
It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington’s first Territorial Legislature outlawed “assisting another in the commission of self murder.” Today, Washington law provides: “A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide.” “Promoting a suicide attempt” is a felony, punishable by up to five years’ imprisonment and up to a \$10,000 fine. At the same time, Washington’s Natural Death Act, enacted in 1979, states that the “withholding or withdrawal of life sustaining treatment” at a patient’s direction “shall not, for any purpose, constitute a suicide.”
Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington’s assisted suicide ban. In January 1994, respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and Compassion in Dying, a nonprofit organization that counsels people considering physician assisted suicide, sued in the United States District Court, seeking a declaration that Wash Rev. Code 9A.36.060(1) (1994) is, on its face, unconstitutional.
The plaintiffs asserted “the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician assisted suicide.” Relying primarily on Planned Parenthood v. Casey (1992), and Cruzan v. Director, Missouri Dept. of Health (1990), the District Court agreed, and concluded that Washington’s assisted suicide ban is unconstitutional because it “places an undue burden on the exercise of [that] constitutionally protected liberty interest.” * * * *
A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that “[i]n the two hundred and five years of our existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction.” The Ninth Circuit reheard the case en banc, reversed the panel’s decision, and affirmed the District Court. Like the District Court, the en banc Court of Appeals emphasized our Casey and Cruzan decisions. The court also discussed what it described as “historical” and “current societal attitudes” toward suicide and assisted suicide, and concluded that “the Constitution encompasses a due process liberty interest in controlling the time and manner of one’s death—that there is, in short, a constitutionally recognized ‘right to die.’ ” After “[w]eighing and then balancing” this interest against Washington’s various interests, the court held that the State’s assisted suicide ban was unconstitutional “as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians.” * * * * We granted certiorari and now reverse.
I
We begin, as we do in all due process cases, by examining our Nation’s history, legal traditions, and practices. In almost every State—indeed, in almost every western democracy—it is a crime to assist a suicide. The States’ assisted suicide bans are not innovations. Rather, they are longstanding expressions of the States’ commitment to the protection and preservation of all human life.
* * * *
More specifically, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide. In the 13th century, Henry de Bracton, one of the first legal treatise writers, observed that “[j]ust as a man may commit felony by slaying another so may he do so by slaying himself.” The real and personal property of one who killed himself to avoid conviction and punishment for a crime were forfeit to the king; however, thought Bracton, “if a man slays himself in weariness of life or because he is unwilling to endure further bodily pain . . . [only] his movable goods [were] confiscated.” Thus, “[t]he principle that suicide of a sane person, for whatever reason, was a punishable felony was . . . introduced into English common law.” Centuries later, Sir William Blackstone, whose Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th and 19th century American lawyers, referred to suicide as “self murder” and “the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure . . . .” Blackstone emphasized that “the law has . . . ranked [suicide] among the highest crimes,” although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide “borde[r] a little upon severity.”
For the most part, the early American colonies adopted the common law approach. * * * * Over time, however, the American colonies abolished these harsh common law penalties. William Penn abandoned the criminal forfeiture sanction in Pennsylvania in 1701, and the other colonies (and later, the other States) eventually followed this example. * * * *
Nonetheless, although States moved away from Blackstone’s treatment of suicide, courts continued to condemn it as a grave public wrong.
* * * *
The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, and many of the new States and Territories followed New York’s example. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited “aiding” a suicide and, specifically, “furnish[ing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life.” By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide.
* * * * In this century, the Model Penal Code also prohibited “aiding” suicide, prompting many States to enact or revise their assisted suicide bans. The Code’s drafters observed that “the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim.” American Law Institute, Model Penal Code § 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980).
Though deeply rooted, the States’ assisted suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life, with the result that there have been many significant changes in state laws and in the attitudes these laws reflect. Many States, for example, now permit “living wills,” surrogate health care decisionmaking, and the withdrawal or refusal of life sustaining medical treatment. At the same time, however, voters and legislators continue for the most part to reaffirm their States’ prohibitions on assisting suicide. * * * *
Thus, the States are currently engaged in serious, thoughtful examinations of physician assisted suicide and other similar issues. For example, New York State’s Task Force on Life and the Law—an ongoing, blue ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymen—was convened in 1984 and commissioned with “a broad mandate to recommend public policy on issues raised by medical advances.” Over the past decade, the Task Force has recommended laws relating to end of life decisions, surrogate pregnancy, and organ donation. After studying physician assisted suicide, however, the Task Force unanimously concluded that “[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. . . . [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved.”
Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end of life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents’ constitutional claim.
II
The Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia (1967); to have children, Skinner v. Oklahoma ex rel. Williamson (1942); to direct the education and upbringing of one’s children, Meyer v. Nebraska (1923); Pierce v. Society of Sisters (1925); to marital privacy, Griswold v. Connecticut (1965); to use contraception, Griswold, Eisenstadt v. Baird (1972); to bodily integrity, Rochin v. California (1952), and to abortion, Casey. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan.
But we “ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open ended.” By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.
Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut (1937). Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. As we stated recently, the Fourteenth Amendment “forbids the government to infringe . . . “fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”
* * * * In our view * * * * the development of this Court’s substantive due process jurisprudence, * * * * has been a process whereby the outlines of the “liberty” specially protected by the Fourteenth Amendment—never fully clarified, to be sure, and perhaps not capable of being fully clarified—have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due process judicial review. In addition, by establishing a threshold requirement—that a challenged state action implicate a fundamental right—before requiring more than a reasonable relation to a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case.
Turning to the claim at issue here, the Court of Appeals stated that “[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one’s death,” or, in other words, “[i]s there a right to die?” Similarly, respondents assert a “liberty to choose how to die” and a right to “control of one’s final days,” and describe the asserted liberty as “the right to choose a humane, dignified death,” and “the liberty to shape death.” As noted above, we have a tradition of carefully formulating the interest at stake in substantive due process cases. For example, although Cruzan is often described as a “right to die” case, we were, in fact, more precise: we assumed that the Constitution granted competent persons a “constitutionally protected right to refuse lifesaving hydration and nutrition.” Cruzan. The Washington statute at issue in this case prohibits “aid[ing] another person to attempt suicide” and, thus, the question before us is whether the “liberty” specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.
We now inquire whether this asserted right has any place in our Nation’s traditions. Here * * * * we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State.
Respondents contend, however, that the liberty interest they assert is consistent with this Court’s substantive due process line of cases, if not with this Nation’s history and practice. Pointing to Casey and Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of “self sovereignty,” and as teaching that the “liberty” protected by the Due Process Clause includes “basic and intimate exercises of personal autonomy,” see Casey (“It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter”). According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the “liberty of competent, terminally ill adults to make end of life decisions free of undue government interference.” The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another’s assistance. With this “careful description” of respondents’ claim in mind, we turn to Casey and Cruzan.
In Cruzan, we considered whether Nancy Beth Cruzan, who had been severely injured in an automobile accident and was in a persistive vegetative state, “ha[d] a right under the United States Constitution which would require the hospital to withdraw life sustaining treatment” at her parents’ request. We began with the observation that “[a]t common law, even the touching of one person by another without consent and without legal justification was a battery.” We then discussed the related rule that “informed consent is generally required for medical treatment.” After reviewing a long line of relevant state cases, we concluded that “the common law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment.” Next, we reviewed our own cases on the subject, and stated that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.” Therefore, “for purposes of [that] case, we assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.” We concluded that, notwithstanding this right, the Constitution permitted Missouri to require clear and convincing evidence of an incompetent patient’s wishes concerning the withdrawal of life sustaining treatment.
* * * * The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. Given the common law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation’s history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. In Cruzan itself, we recognized that most States outlawed assisted suicide—and even more do today—and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow transmuted into a right to assistance in committing suicide.
Respondents also rely on Casey. There, the Court’s opinion concluded that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” We held, first, that a woman has a right, before her fetus is viable, to an abortion “without undue interference from the State”; second, that States may restrict post-viability abortions, so long as exceptions are made to protect a woman’s life and health; and third, that the State has legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child. In reaching this conclusion, the opinion discussed in some detail this Court’s substantive due process tradition of interpreting the Due Process Clause to protect certain fundamental rights and “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and noted that many of those rights and liberties “involv[e] the most intimate and personal choices a person may make in a lifetime.”
* * * * That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, San Antonio Independent School Dist. v. Rodriguez (1973), and Casey did not suggest otherwise.
The history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington’s assisted suicide ban be rationally related to legitimate government interests. This requirement is unquestionably met here. As the court below recognized, Washington’s assisted suicide ban implicates a number of state interests.
First, Washington has an “unqualified interest in the preservation of human life.” The State’s prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. This interest is symbolic and aspirational as well as practical * * * * Respondents admit that “[t]he State has a real interest in preserving the lives of those who can still contribute to society and enjoy life.” The Court of Appeals also recognized Washington’s interest in protecting life, but held that the “weight” of this interest depends on the “medical condition and the wishes of the person whose life is at stake.” Washington, however, has rejected this sliding scale approach and, through its assisted suicide ban, insists that all persons’ lives, from beginning to end, regardless of physical or mental condition, are under the full protection of the law. As we have previously affirmed, the States “may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy.” This remains true, as Cruzan makes clear, even for those who are near death.
Relatedly, all admit that suicide is a serious public health problem, especially among persons in otherwise vulnerable groups. The State has an interest in preventing suicide, and in studying, identifying, and treating its causes.
Those who attempt suicide—terminally ill or not—often suffer from depression or other mental disorders. See New York Task Force (more than 95% of those who commit suicide had a major psychiatric illness at the time of death; among the terminally ill, uncontrolled pain is a “risk factor” because it contributes to depression). * * * * The New York Task Force, however, expressed its concern that, because depression is difficult to diagnose, physicians and medical professionals often fail to respond adequately to seriously ill patients’ needs. Thus, legal physician assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses.
The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals’ conclusion that “the integrity of the medical profession would [not] be threatened in any way by [physician assisted suicide],” the American Medical Association, like many other medical and physicians’ groups, has concluded that “[p]hysician assisted suicide is fundamentally incompatible with the physician’s role as healer.” And physician assisted suicide could, it is argued, undermine the trust that is essential to the doctor patient relationship by blurring the time honored line between healing and harming.
Next, the State has an interest in protecting vulnerable groups—including the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes. The Court of Appeals dismissed the State’s concern that disadvantaged persons might be pressured into physician assisted suicide as “ludicrous on its face.” We have recognized, however, the real risk of subtle coercion and undue influence in end of life situations. Cruzan. Similarly, the New York Task Force warned that “[l]egalizing physician assisted suicide would pose profound risks to many individuals who are ill and vulnerable . . . . The risk of harm is greatest for the many individuals in our society whose autonomy and well being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group.” If physician assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end of life health care costs.
The State’s interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and “societal indifference.” The State’s assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person’s suicidal impulses should be interpreted and treated the same way as anyone else’s.
Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down Washington’s assisted suicide ban only “as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.” Washington insists, however, that the impact of the court’s decision will not and cannot be so limited. If suicide is protected as a matter of constitutional right, it is argued, “every man and woman in the United States must enjoy it.” * * * * Thus, it turns out that what is couched as a limited right to “physician assisted suicide” is likely, in effect, a much broader license, which could prove extremely difficult to police and contain. Washington’s ban on assisting suicide prevents such erosion.
This concern is further supported by evidence about the practice of euthanasia in the Netherlands. The Dutch government’s own study revealed that in 1990, there were 2,300 cases of voluntary euthanasia (defined as “the deliberate termination of another’s life at his request”), 400 cases of assisted suicide, and more than 1,000 cases of euthanasia without an explicit request. In addition to these latter 1,000 cases, the study found an additional 4,941 cases where physicians administered lethal morphine overdoses without the patients’ explicit consent. This study suggests that, despite the existence of various reporting procedures, euthanasia in the Netherlands has not been limited to competent, terminally ill adults who are enduring physical suffering, and that regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia. The New York Task Force, citing the Dutch experience, observed that “assisted suicide and euthanasia are closely linked,” and concluded that the “risk of . . . abuse is neither speculative nor distant.” Washington, like most other States, reasonably ensures against this risk by banning, rather than regulating, assisting suicide.
We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington’s ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code § 9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either on its face or “as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.”
* * *
Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice O’Connor, concurring. *
{Justice Ginsburg concurs in the Court’s judgments substantially for the reasons stated in this opinion. Justice Breyer joins this opinion except insofar as it joins the opinions of the Court.}
Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms.
The Court frames the issue in this case as whether the Due Process Clause of the Constitution protects a “right to commit suicide which itself includes a right to assistance in doing so,” and concludes that “our Nation’s history, legal traditions, and practices do not support the existence of such a right.” I join the Court’s opinions because I agree that there is no generalized right to “commit suicide.” But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. (“The Washington statute at issue in this case prohibits ‘aid[ing] another person to attempt suicide,’. . . and, thus, the question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so”). The parties and amici agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. In this light, even assuming that we would recognize such an interest, I agree that the State’s interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician assisted suicide.
Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician assisted suicide and other related issues. In such circumstances, “the . . . challenging task of crafting appropriate procedures for safeguarding . . . liberty interests is entrusted to the ‘laboratory’ of the States . . . in the first instance.” Cruzan (O’Connor, J., concurring) (citing New State Ice Co. v. Liebmann (1932)).
In sum, there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives. There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here.
Justice Stevens, concurring in the judgments.
The Court ends its opinion with the important observation that our holding today is fully consistent with a continuation of the vigorous debate about the “morality, legality, and practicality of physician assisted suicide” in a democratic society. I write separately to make it clear that there is also room for further debate about the limits that the Constitution places on the power of the States to punish the practice. * * * *
Today, the Court decides that Washington’s statute prohibiting assisted suicide is not invalid “on its face,” that is to say, in all or most cases in which it might be applied. That holding, however, does not foreclose the possibility that some applications of the statute might well be invalid. * * * *
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Note: Bowers v. Hardwick
In Bowers v. Harwick, 478 U.S. 186 (1986), the Court in a 5-4 decision reversing the Eleventh Circuit upheld the constitutionality of Georgia’s sodomy statute that provided “(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . . (b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . .” The opinion by Justice White for the Court stated:
This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state-court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. The case also calls for some judgment about the limits of the Court’s role in carrying out its constitutional mandate.
We first register our disagreement with the Court of Appeals and with respondent that the Court’s prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case. The reach of this line of cases was sketched in Carey v. Population Services International (1977). Pierce v. Society of Sisters (1925), and Meyer v. Nebraska (1923), were described as dealing with child rearing and education; Prince v. Massachusetts (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson (1942), with procreation; Loving v. Virginia (1967), with marriage; Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) with contraception; and Roe v. Wade (1973), with abortion. The latter three cases were interpreted as construing the Due Process Clause of the Fourteenth Amendment to confer a fundamental individual right to decide whether or not to beget or bear a child.
Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court’s opinion in Carey twice asserted {in footnotes} that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far.
Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey.
Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland (1977) (opinion of Powell, J.), where they are characterized as those liberties that are “deeply rooted in this Nation’s history and tradition.” See also Griswold v. Connecticut.
It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.
Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls for short of overcoming this resistance.
* * * *
Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.
Accordingly, the judgment of the Court of Appeals is
Reversed.
The brief concurring opinion by Chief Justice Burger stressed the “ancient roots” of proscriptions against sodomy, citing Roman law, Henry VIII, and Blackstone. The brief concurring opinion by Justice Powell suggested that there may be some protection under the Eighth Amendment: “The Georgia statute at issue in this case, Ga. Code Ann. 16-6-2 (1984), authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct – certainly a sentence of long duration – would create a serious Eighth Amendment issue. Under the Georgia statute a single act of sodomy, even in the private setting of a home, is a felony comparable in terms of the possible sentence imposed to serious felonies such as aggravated battery, 16-5-24, first-degree arson, 16-7-60, and robbery, 16-8-40.” But, Justice Powell noted, Hardwick had not been tried, found guilty, sentenced, or raised this issue below.
The dissenting opinion by Justice Blackmun, joined by Brennan, Marshall, and Stevens, begins thusly:
This case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, than Stanley v. Georgia (1969), was about a fundamental right to watch obscene movies, or Katz v. United States (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.”Olmstead v. United States (1928) (Brandeis, J., dissenting).
The statute at issue denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity. The Court concludes that 16-6-2 is valid essentially because “the laws of . . . many States . . . still make such conduct illegal and have done so for a very long time.” But the fact that the moral judgments expressed by statutes like 16-6-2 may be “‘natural and familiar . . . ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.’” Roe v. Wade (1973), quoting Lochner v. New York (1905) (Holmes, J., dissenting). Like Justice Holmes, I believe that “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). I believe we must analyze respondent Hardwick’s claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an “‘abominable crime not fit to be named among Christians.’” Herring v. State, 119 Ga. 709, 721, 46 S. E. 876, 882 (1904).
The dissenting opinion engages in a lengthy analysis, often stressing the private nature of the act and arguing that the case “involves no real interference with the rights of others, for the mere knowledge that other individuals do not adhere to one’s value system cannot be a legally cognizable interest, let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.” The dissent concludes:
It took but three years for the Court to see the error in its analysis in Minersville School District v. Gobitis (1940), and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute. See West Virginia Board of Education v. Barnette (1943). I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.
Lawrence v. Texas
539 U.S. 558 (2003)
Justice Kennedy delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
I
The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace.
The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual intercourse” as follows:
(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or
(B) the penetration of the genitals or the anus of another person with an object.
§ 21.01(1).
The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art.1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined \$200 and assessed court costs of \$141.25.
The Court of Appeals for the Texas Fourteenth District considered the petitioners’ federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.
We granted certiorari to consider three questions:
“1. Whether Petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of laws?
“2. Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?
“3. Whether Bowers v. Hardwick (1986) should be overruled?”
The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.
II
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers.
There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters (1925), and Meyer v. Nebraska (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut (1965).
In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom.
After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:
It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.
In Carey v. Population Services Int’l (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.
The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); (opinion of Stevens, J., joined by Brennan and Marshall, JJ.).
The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.” In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union etal. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.
At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K.B. 1718) (interpreting “mankind” in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e.g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D’Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (“The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions”). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.
Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.
To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner’s testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.
The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place.
It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p.652; 1974 Ky. Acts p.847; 1977 Mo. Laws p.687; 1973 Mont. Laws p.1339; 1977 Nev. Stats. p.1632; 1989 Tenn. Pub. Acts ch.591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P.2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist, 926 S.W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193).
In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey (1992).
Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.” As with Justice White’s assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis (1998) (Kennedy, J., concurring).
This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” ALI, Model Penal Code § 213.2, Comment 2, p.372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed.
In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court’s decision 24 States and the District of Columbia had sodomy laws. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. (“The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct”).
The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1.
Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.
In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances.
Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
• These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.
The second post-Bowers case of principal relevance is Romer v. Evans (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose.
As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.
The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four States were he or she to be subject to their jurisdiction. This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.
The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g.,C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment.
To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. (“Liberty finds no refuge in a jurisprudence of doubt”). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.
The rationale of Bowers does not withstand careful analysis. * * * * Justice Stevens’ analysis {in the dissenting opinion in Bowers v. Hardwick}, in our view, should have been controlling in Bowers and should control here.
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice O’Connor, concurring in the judgment.
The Court today overrules Bowers v. Hardwick (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas’ statute banning same-sex sodomy is unconstitutional. Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc. (1985) * * * * When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.
* * * * Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.
The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas’ sodomy law are rare. This case shows, however, that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. * * * *
And the effect of Texas’ sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas’ sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law “legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law,” including in the areas of “employment, family issues, and housing.”
* * * * A law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court’s judgment that Texas’ sodomy law banning “deviate sexual intercourse” between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.
Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.
“Liberty finds no refuge in a jurisprudence of doubt.” Planned Parenthood of Southeastern Pa. v. Casey (1992). That was the Court’s sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade (1973). The Court’s response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick (1986) is very different. The need for stability and certainty presents no barrier.
Most of the rest of today’s opinion has no relevance to its actual holding—that the Texas statute “furthers no legitimate state interest which can justify” its application to petitioners under rational-basis review. Though there is discussion of “fundamental proposition[s],” and “fundamental decisions,” nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: “[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.” Instead the Court simply describes petitioners’ conduct as “an exercise of their liberty”—which it undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case.
I
I begin with the Court’s surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today’s opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention—the paean to stare decisis coauthored by three Members of today’s majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling reason . . . would subvert the Court’s legitimacy beyond any serious question.”
Today, however, the widespread opposition to Bowers, a decision resolving an issue as “intensely divisive” as the issue in Roe, is offered as a reason in favor of overruling it. Gone, too, is any “enquiry” (of the sort conducted in Casey) into whether the decision sought to be overruled has “proven ‘unworkable.’”
Today’s approach to stare decisis invites us to overrule an erroneously decided precedent (including an “intensely divisive” decision) if: (1) its foundations have been “eroded” by subsequent decisions; (2) it has been subject to “substantial and continuing” criticism.; and (3) it has not induced “individual or societal reliance” that counsels against overturning. The problem is that Roe itself—which today’s majority surely has no disposition to overrule—satisfies these conditions to at least the same degree as Bowers. * * * *
I do not quarrel with the Court’s claim that Romer v. Evans (1996) “eroded” the “foundations” of Bowers’ rational-basis holding. But Roe and Casey have been equally “eroded” by Washington v. Glucksberg (1997) which held that only fundamental rights which are “‘deeply rooted in this Nation’s history and tradition’” qualify for anything other than rational basis scrutiny under the doctrine of “substantive due process.” Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation’s tradition. * * * *
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.
II
Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.
Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim. (“The liberty protected by the Constitution allows homosexual persons the right to make this choice”); (“‘These matters . . . are central to the liberty protected by the Fourteenth Amendment’”); (“Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government”). The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided:
“No state shall . . . deprive any person of life, liberty, or property, without due process of law.”
Amdt. 14 (emphasis added).
Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called “heightened scrutiny” protection—that is, rights which are “‘deeply rooted in this Nation’s history and tradition.’” All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.
Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a “fundamental right” under the Due Process Clause. Noting that “[p]roscriptions against that conduct have ancient roots,” that “[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” and that many States had retained their bans on sodomy, Bowers concluded that a right to engage in homosexual sodomy was not “‘deeply rooted in this Nation’s history and tradition.’”
The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a “fundamental right” or a “fundamental liberty interest,” nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is “‘deeply rooted in this Nation’s history and tradition,’” the Court concludes that the application of Texas’s statute to petitioners’ conduct fails the rational-basis test, and overrules Bowers’ holding to the contrary. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers’ conclusion that homosexual sodomy is not a “fundamental right”—even though, as I have said, the Court does not have the boldness to reverse that conclusion.
III
The Court’s description of “the state of the law” at the time of Bowers only confirms that Bowers was right. The Court points to Griswold v. Connecticut (1965). But that case expressly disclaimed any reliance on the doctrine of “substantive due process,” and grounded the so-called “right to privacy” in penumbras of constitutional provisions other than the Due Process Clause. * * * *
Roe v. Wade recognized that the right to abort an unborn child was a “fundamental right” protected by the Due Process Clause. The Roe Court, however, made no attempt to establish that this right was “‘deeply rooted in this Nation’s history and tradition’”; instead, it based its conclusion that “the Fourteenth Amendment’s concept of personal liberty . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” on its own normative judgment that anti-abortion laws were undesirable. * * * *
It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were “directed at homosexual conduct as a distinct matter.” Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.” The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.
* * * * Bowers’ conclusion that homosexual sodomy is not a fundamental right “deeply rooted in this Nation’s history and tradition” is utterly unassailable.
Realizing that fact, the Court instead says: “[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” (emphasis added). Apart from the fact that such an “emerging awareness” does not establish a “fundamental right,” the statement is factually false. States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced “in the past half century,” in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. In relying, for evidence of an “emerging recognition,” upon the American Law Institute’s 1955 recommendation not to criminalize “‘consensual sexual relations conducted in private,’” the Court ignores the fact that this recommendation was “a point of resistance in most of the states that considered adopting the Model Penal Code.”
In any event, an “emerging awareness” is by definition not “deeply rooted in this Nation’s history and tradition[s],” as we have said “fundamental right” status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. * * * * The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court . . . should not impose foreign moods, fads, or fashions on Americans.” Foster v. Florida (2002) (Thomas, J., concurring in denial of certiorari).
IV
I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,”—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” (emphasis added). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
V
Finally, I turn to petitioners’ equal-protection challenge, which no Member of the Court save Justice O’Connor (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia (1967) similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers—society’s belief that certain forms of sexual behavior are “immoral and unacceptable.” This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage. * * * *
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in § 21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).
* * *
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer.
One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H.R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale (2000).
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring;” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
The matters appropriate for this Court’s resolution are only three: Texas’s prohibition of sodomy neither infringes a “fundamental right” (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.
Justice Thomas, dissenting.
I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is . . . uncommonly silly.” Griswold v. Connecticut (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’” And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions.”
Check Your Understanding
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Notes
1. Be prepared to discuss the role of stare decisis in Lawrence v. Texas.
2. Be prepared to articulate the Glucksberg test for unenumerated constitutional rights and compare it to the test for incorporation of enumerated rights.
3. Do you think that the umbrella term of “privacy” is useful to protect the rights asserted in these cases? Are there better terms that might be more useful? Why?
4. A pivotal case for Lawrence as well as for the following case of Whole Woman’s Health is Planned Parenthood of Northeastern Pennsylvania v. Casey (1992), which the following note elaborates.
Note: Casey
From Roe v. Wade in 1973 until Whole Woman’s Health in 2016, the Court considered a number of abortion cases including reassessments of Roe v. Wade, specific requirements and procedures, public funding of abortion and reproductive health, as well as regulation of abortion protest and statements by providers under the First Amendment. One of the most important of these is Planned Parenthood of Northeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), discussed extensively in Whole Woman’s Health. In Casey, a plurality of the Court articulated the “undue burden” standard:
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends. * * * * Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability could be constitutional.
The plurality also summarized its principles:
(a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State’s profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State’s profound interest in potential life, throughout pregnancy, the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
(e) We also reaffirm Roe’s holding that, subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
It applied these principles to several provisions of the Pennsylvania statute, upholding the 24 hour “waiting period” but found the husband-notification provision unconstitutional.
It also reaffirmed the complex doctrine regarding minors and abortion.
Note: Minors and Abortion
The issue of minors and abortions could be considered to be a question of a conflict of constitutional due process rights. On the one hand, although minors generally have less constitutional rights than adults, a minor does have substantive due process rights including a right to reproductive health care including abortion. On the other hand, the substantive due process right of parents to “care, custody, and control” of their children is implicated.
State statutes that require a minor to seek parental consent or to require parental notification before accessing abortion have come before the Court numerous times. The Court has struggled to develop doctrine that accommodates the constitutional interests of both minors and parents, resulting in what is often known as the Bellotti standard, after Bellotti v. Baird (Bellotti II), 443 U.S. 622 (1979).
Essentially, the doctrine is this:
If a state chooses to require parental consent or notification (which the Court has said are the same regarding minors), the state must also allow the minor to “bypass” this requirement through a judicial process.
This judicial process, which must protect the minor’s anonymity and be expeditious, must allow the minor to prove either
• she is sufficiently mature to make the decision without her parents,
or
• she is not sufficiently mature, but the abortion is in her best interest.
Whole Woman’s Health v. Hellerstedt
579 U.S. ___ (2016)
Justice Breyer delivered the opinion of the Court.
In Planned Parenthood of Southeastern Pa. v. Casey (1992), a plurality of the Court concluded that there “exists” an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the “purpose or effect” of the provision “is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” (Emphasis added.) The plurality added that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”
We must here decide whether two provisions of Texas’ House Bill 2 violate the Federal Constitution as interpreted in Casey. The first provision, which we shall call the “admitting-privileges requirement,” says that
“[a] physician performing or inducing an abortion … must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that … is located not further than 30 miles from the location at which the abortion is performed or induced.”
Tex. Health & Safety Code Ann. § 171.0031(a) (West Cum. Supp. 2015).
This provision amended Texas law that had previously required an abortion facility to maintain a written protocol “for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.” 38 Tex. Reg. 6546 (2013).
The second provision, which we shall call the “surgical-center requirement,” says that
“the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.”
Tex. Health & Safety Code Ann. § 245.010(a).
We conclude that neither of these provisions confers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey (plurality opinion), and each violates the Federal Constitution. Amdt. 14, § 1.
A
In July 2013, the Texas Legislature enacted House Bill 2 (H.B. 2 or Act). In September (before the new law took effect), a group of Texas abortion providers filed an action in Federal District Court seeking facial invalidation of the law’s admitting-privileges provision. In late October, the District Court granted the injunction. But three days later, the Fifth Circuit vacated the injunction, thereby permitting the provision to take effect.
The Fifth Circuit subsequently upheld the provision, and set forth its reasons in an opinion released late the following March. In that opinion, the Fifth Circuit pointed to evidence introduced in the District Court the previous October. It noted that Texas had offered evidence designed to show that the admitting-privileges requirement “will reduce the delay in treatment and decrease health risk for abortion patients with critical complications,” and that it would “‘screen out’ untrained or incompetent abortion providers.” (Abbott). The opinion also explained that the plaintiffs had not provided sufficient evidence “that abortion practitioners will likely be unable to comply with the privileges requirement.” The court said that all “of the major Texas cities, including Austin, Corpus Christi, Dallas, El Paso, Houston, and San Antonio,” would “continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges.” The Abbott plaintiffs did not file a petition for certiorari in this Court.
B
On April 6, one week after the Fifth Circuit’s decision, petitioners, a group of abortion providers (many of whom were plaintiffs in the previous lawsuit), filed the present lawsuit in Federal District Court. They sought an injunction preventing enforcement of the admitting-privileges provision as applied to physicians at two abortion facilities, one operated by Whole Woman’s Health in McAllen and the other operated by Nova Health Systems in El Paso. They also sought an injunction prohibiting enforcement of the surgical-center provision anywhere in Texas. They claimed that the admitting-privileges provision and the surgical-center provision violated the Constitution’s Fourteenth Amendment, as interpreted in Casey.
The District Court subsequently received stipulations from the parties and depositions from the parties’ experts. The court conducted a 4–day bench trial. It heard, among other testimony, the opinions from expert witnesses for both sides. On the basis of the stipulations, depositions, and testimony, that court reached the following conclusions:
1. Of Texas’ population of more than 25 million people, “approximately 5.4 million” are “women” of “reproductive age,” living within a geographical area of “nearly 280,000 square miles.”
2. “In recent years, the number of abortions reported in Texas has stayed fairly consistent at approximately 15–16% of the reported pregnancy rate, for a total number of approximately 60,000–72,000 legal abortions performed annually.”
3. Prior to the enactment of H.B. 2, there were more than 40 licensed abortion facilities in Texas, which “number dropped by almost half leading up to and in the wake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013.”
4. If the surgical-center provision were allowed to take effect, the number of abortion facilities, after September 1, 2014, would be reduced further, so that “only seven facilities and a potential eighth will exist in Texas.”
5. Abortion facilities “will remain only in Houston, Austin, San Antonio, and the Dallas/Fort Worth metropolitan region.” These include “one facility in Austin, two in Dallas, one in Fort Worth, two in Houston, and either one or two in San Antonio.”
6. “Based on historical data pertaining to Texas’s average number of abortions, and assuming perfectly equal distribution among the remaining seven or eight providers, this would result in each facility serving between 7,500 and 10,000 patients per year. Accounting for the seasonal variations in pregnancy rates and a slightly unequal distribution of patients at each clinic, it is foreseeable that over 1,200 women per month could be vying for counseling, appointments, and follow-up visits at some of these facilities.”
7. The suggestion “that these seven or eight providers could meet the demand of the entire state stretches credulity.”
8. “Between November 1, 2012 and May 1, 2014,” that is, before and after enforcement of the admitting-privileges requirement, “the decrease in geographical distribution of abortion facilities” has meant that the number of women of reproductive age living more than 50 miles from a clinic has doubled (from 800,000 to over 1.6 million); those living more than 100 miles has increased by 150% (from 400,000 to 1 million); those living more than 150 miles has increased by more than 350% (from 86,000 to 400,000); and those living more than 200 miles has increased by about 2,800% (from 10,000 to 290,000). After September 2014, should the surgical-center requirement go into effect, the number of women of reproductive age living significant distances from an abortion provider will increase as follows: 2 million women of reproductive age will live more than 50 miles from an abortion provider; 1.3 million will live more than 100 miles from an abortion provider; 900,000 will live more than 150 miles from an abortion provider; and 750,000 more than 200 miles from an abortion provider.
9. The “two requirements erect a particularly high barrier for poor, rural, or disadvantaged women.”
10. “The great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.”
11. “Abortion, as regulated by the State before the enactment of House Bill 2, has been shown to be much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny.” e.g., colonoscopies, vasectomy and endometrial biopsy, plastic surgery.
12. “Additionally, risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities.”
13. “[W]omen will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center as compared to a previously licensed facility.”
14. “[T]here are 433 licensed ambulatory surgical centers in Texas,” of which “336 … are apparently either ‘grandfathered’ or enjo[y] the benefit of a waiver of some or all” of the surgical-center “requirements.”
15. The “cost of coming into compliance” with the surgical-center requirement “for existing clinics is significant,” “undisputedly approach[ing] 1 million dollars,” and “most likely exceed[ing] 1.5 million dollars,” with “[s]ome … clinics” unable to “comply due to physical size limitations of their sites.” The “cost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars.”
On the basis of these and other related findings, the District Court determined that the surgical-center requirement “imposes an undue burden on the right of women throughout Texas to seek a previability abortion,” and that the “admitting-privileges requirement, … in conjunction with the ambulatory-surgical-center requirement, imposes an undue burden on the right of women in the Rio Grande Valley, El Paso, and West Texas to seek a previability abortion.” The District Court concluded that the “two provisions” would cause “the closing of almost all abortion clinics in Texas that were operating legally in the fall of 2013,” and thereby create a constitutionally “impermissible obstacle as applied to all women seeking a previability abortion” by “restricting access to previously available legal facilities.” On August 29, 2014, the court enjoined the enforcement of the two provisions.
C
On October 2, 2014, at Texas’ request, the Court of Appeals stayed the District Court’s injunction. Within the next two weeks, this Court vacated the Court of Appeals’ stay (in substantial part) thereby leaving in effect the District Court’s injunction against enforcement of the surgical-center provision and its injunction against enforcement of the admitting-privileges requirement as applied to the McAllen and El Paso clinics. The Court of Appeals then heard Texas’ appeal.
On June 9, 2015, the Court of Appeals reversed the District Court on the merits. With minor exceptions, it found both provisions constitutional and allowed them to take effect. Because the Court of Appeals’ decision rests upon alternative grounds and fact-related considerations, we set forth its basic reasoning in some detail. The Court of Appeals concluded:
• The District Court was wrong to hold the admitting-privileges requirement unconstitutional because (except for the clinics in McAllen and El Paso) the providers had not asked them to do so, and principles of res judicata barred relief.
• Because the providers could have brought their constitutional challenge to the surgical-center provision in their earlier lawsuit, principles of res judicata also barred that claim.
• In any event, a state law “regulating previability abortion is constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.”
• “[B]oth the admitting privileges requirement and” the surgical-center requirement “were rationally related to a legitimate state interest,” namely, “rais[ing] the standard and quality of care for women seeking abortions and … protect[ing] the health and welfare of women seeking abortions.”
• The “[p]laintiffs” failed “to proffer competent evidence contradicting the legislature’s statement of a legitimate purpose.”
• “[T]he district court erred by substituting its own judgment [as to the provisions’ effects] for that of the legislature, albeit … in the name of the undue burden inquiry.”
• Holding the provisions unconstitutional on their face is improper because the plaintiffs had failed to show that either of the provisions “imposes an undue burden on a large fraction of women.”
• The District Court erred in finding that, if the surgical-center requirement takes effect, there will be too few abortion providers in Texas to meet the demand. That factual determination was based upon the finding of one of plaintiffs’ expert witnesses (Dr. Grossman) that abortion providers in Texas “‘will not be able to go from providing approximately 14,000 abortions annually, as they currently are, to providing the 60,000 to 70,000 abortions that are done each year in Texas once all’ ” of the clinics failing to meet the surgical-center requirement “ ‘are forced to close.’” But Dr. Grossman’s opinion is (in the Court of Appeals’ view) “‘ipse dixit’ ”; the “ ‘record lacks any actual evidence regarding the current or future capacity of the eight clinics’ ”; and there is no “evidence in the record that” the providers that currently meet the surgical-center requirement “are operating at full capacity or that they cannot increase capacity.”
For these and related reasons, the Court of Appeals reversed the District Court’s holding that the admitting-privileges requirement is unconstitutional and its holding that the surgical-center requirement is unconstitutional. The Court of Appeals upheld in part the District Court’s more specific holding that the requirements are unconstitutional as applied to the McAllen facility and Dr. Lynn (a doctor at that facility), but it reversed the District Court’s holding that the surgical-center requirement is unconstitutional as applied to the facility in El Paso. In respect to this last claim, the Court of Appeals said that women in El Paso wishing to have an abortion could use abortion providers in nearby New Mexico.
II
Before turning to the constitutional question, we must consider the Court of Appeals’ procedural grounds for holding that (but for the challenge to the provisions of H.B. 2 as applied to McAllen and El Paso) petitioners were barred from bringing their constitutional challenges. * * * *
{The Court held that there was no claim preclusion}.
III
Undue Burden—Legal Standard
We begin with the standard, as described in Casey. We recognize that the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade (1973). But, we added, “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Casey (plurality opinion). Moreover, “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”
The Court of Appeals wrote that a state law is “constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.” The Court of Appeals went on to hold that “the district court erred by substituting its own judgment for that of the legislature” when it conducted its “undue burden inquiry,” in part because “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.” (citing Gonzales v. Carhart (2007)).
The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. See (opinion of the Court) (performing this balancing with respect to a spousal notification provision); (joint opinion of O’Connor, Kennedy, and Souter, JJ.) (same balancing with respect to a parental notification provision). And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. See, e.g., Williamson v. Lee Optical of Okla., Inc. (1955). The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”
The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings. In Casey, for example, we relied heavily on the District Court’s factual findings and the research-based submissions of amici in declaring a portion of the law at issue unconstitutional (opinion of the Court) (discussing evidence related to the prevalence of spousal abuse in determining that a spousal notification provision erected an undue burden to abortion access). And, in Gonzales the Court, while pointing out that we must review legislative “factfinding under a deferential standard,” added that we must not “place dispositive weight” on those “findings.” Gonzales went on to point out that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” (emphasis added). Although there we upheld a statute regulating abortion, we did not do so solely on the basis of legislative findings explicitly set forth in the statute, noting that “evidence presented in the District Courts contradicts” some of the legislative findings. In these circumstances, we said, “[u]ncritical deference to Congress’ factual findings . . . is inappropriate.”
Unlike in Gonzales, the relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective (namely, protecting women’s health). For a district court to give significant weight to evidence in the judicial record in these circumstances is consistent with this Court’s case law. As we shall describe, the District Court did so here. It did not simply substitute its own judgment for that of the legislature. It considered the evidence in the record—including expert evidence, presented in stipulations, depositions, and testimony. It then weighed the asserted benefits against the burdens. We hold that, in so doing, the District Court applied the correct legal standard.
IV
Undue Burden—Admitting–Privileges Requirement
Turning to the lower courts’ evaluation of the evidence, we first consider the admitting-privileges requirement. Before the enactment of H.B. 2, doctors who provided abortions were required to “have admitting privileges or have a working arrangement with a physician(s) who has admitting privileges at a local hospital in order to ensure the necessary back up for medical complications.” Tex. Admin. Code, tit. 25, § 139.56 (2009) (emphasis added). The new law changed this requirement by requiring that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that … is located not further than 30 miles from the location at which the abortion is performed or induced.” Tex. Health & Safety Code Ann. § 171.0031(a). The District Court held that the legislative change imposed an “undue burden” on a woman’s right to have an abortion. We conclude that there is adequate legal and factual support for the District Court’s conclusion.
The purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure. But the District Court found that it brought about no such health-related benefit. The court found that “[t]he great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.” Thus, there was no significant health-related problem that the new law helped to cure.
The evidence upon which the court based this conclusion included, among other things:
• A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications—including those complications requiring hospital admission—was less than one-quarter of 1%.
• Figures in three peer-reviewed studies showing that the highest complication rate found for the much rarer second trimester abortion was less than one-half of 1% (0.45% or about 1 out of about 200).
• Expert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic (citing a study of complications occurring within six weeks after 54,911 abortions that had been paid for by the fee-for-service California Medicaid Program finding that the incidence of complications was 2.1%, the incidence of complications requiring hospital admission was 0.23%, and that of the 54,911 abortion patients included in the study, only 15 required immediate transfer to the hospital on the day of the abortion).
• Expert testimony stating that “it is extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization” and “in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges at the hospital.”
• Expert testimony stating that in respect to surgical abortion patients who do suffer complications requiring hospitalization, most of these complications occur in the days after the abortion, not on the spot.
• Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as “abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient has left the abortion facility.”
• Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek medical attention at the hospital nearest her home.
We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.
We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case. See Tr. of Oral Arg. 47. This answer is consistent with the findings of the other Federal District Courts that have considered the health benefits of other States’ similar admitting-privileges laws. See Planned Parenthood of Wis., Inc. v. Van Hollen (W.D.Wis.2015), aff’d sub nom. Planned Parenthood of Wis., Inc. v. Schimel (7th Cir. 2015); Planned Parenthood Southeast, Inc. v. Strange, (M.D.Ala.2014).
At the same time, the record evidence indicates that the admitting-privileges requirement places a “substantial obstacle in the path of a woman’s choice.” Casey (plurality opinion). The District Court found, as of the time the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20. Eight abortion clinics closed in the months leading up to the requirement’s effective date. Cf. Brief for Planned Parenthood Federation of America et al. as Amici Curiae (noting that abortion facilities in Waco, San Angelo, and Midland no longer operate because Planned Parenthood is “unable to find local physicians in those communities with privileges who are willing to provide abortions due to the size of those communities and the hostility that abortion providers face”). Eleven more closed on the day the admitting-privileges requirement took effect.
Other evidence helps to explain why the new requirement led to the closure of clinics. We read that other evidence in light of a brief filed in this Court by the Society of Hospital Medicine. That brief describes the undisputed general fact that “hospitals often condition admitting privileges on reaching a certain number of admissions per year.” Brief for Society of Hospital Medicine et al. as Amici Curiae. Returning to the District Court record, we note that, in direct testimony, the president of Nova Health Systems, implicitly relying on this general fact, pointed out that it would be difficult for doctors regularly performing abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because “[d]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital.” In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.
Other amicus briefs filed here set forth without dispute other common prerequisites to obtaining admitting privileges that have nothing to do with ability to perform medical procedures. See Brief for Medical Staff Professionals as Amici Curiae (listing, for example, requirements that an applicant has treated a high number of patients in the hospital setting in the past year, clinical data requirements, residency requirements, and other discretionary factors); see also Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae (ACOG Brief) (“[S]ome academic hospitals will only allow medical staff membership for clinicians who also … accept faculty appointments”). Again, returning to the District Court record, we note that Dr. Lynn of the McAllen clinic, a veteran obstetrics and gynecology doctor who estimates that he has delivered over 15,000 babies in his 38 years in practice was unable to get admitting privileges at any of the seven hospitals within 30 miles of his clinic. He was refused admitting privileges at a nearby hospital for reasons, as the hospital wrote, “not based on clinical competence considerations.” The admitting-privileges requirement does not serve any relevant credentialing function.
In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding that after the admitting-privileges provision went into effect, the “number of women of reproductive age living in a county … more than 150 miles from a provider increased from approximately 86,000 to 400,000 … and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000.” We recognize that increased driving distances do not always constitute an “undue burden.” See Casey (joint opinion of O’Connor, Kennedy, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion. Casey (opinion of the Court) (finding burden “undue” when requirement places “substantial obstacle to a woman’s choice” in “a large fraction of the cases in which” it “is relevant”).
The dissent’s only argument why these clinic closures, as well as the ones discussed in Part V, may not have imposed an undue burden is this: Although “H.B. 2 caused the closure of some clinics,” post, at 2343 (emphasis added), other clinics may have closed for other reasons (so we should not “actually count” the burdens resulting from those closures against H.B. 2). But petitioners satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic closures. The District Court credited that evidence and concluded from it that H.B. 2 in fact led to the clinic closures. The dissent’s speculation that perhaps other evidence, not presented at trial or credited by the District Court, might have shown that some clinics closed for unrelated reasons does not provide sufficient ground to disturb the District Court’s factual finding on that issue.
In the same breath, the dissent suggests that one benefit of H.B. 2’s requirements would be that they might “force unsafe facilities to shut down.” To support that assertion, the dissent points to the Kermit Gosnell scandal. Gosnell, a physician in Pennsylvania, was convicted of first-degree murder and manslaughter. He “staffed his facility with unlicensed and indifferent workers, and then let them practice medicine unsupervised” and had “[d]irty facilities; unsanitary instruments; an absence of functioning monitoring and resuscitation equipment; the use of cheap, but dangerous, drugs; illegal procedures; and inadequate emergency access for when things inevitably went wrong.” Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. The record contains nothing to suggest that H.B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.
V
Undue Burden—Surgical–Center Requirement
The second challenged provision of Texas’ new law sets forth the surgical-center requirement. Prior to enactment of the new requirement, Texas law required abortion facilities to meet a host of health and safety requirements. Under those pre-existing laws, facilities were subject to annual reporting and recordkeeping requirements; a quality assurance program; personnel policies and staffing requirements; physical and environmental requirements; infection control standards; disclosure requirements; patient-rights standards; and medical- and clinical-services standards, including anesthesia standards. These requirements are policed by random and announced inspections, at least annually, as well as administrative penalties, injunctions, civil penalties, and criminal penalties for certain violations.
H.B. 2 added the requirement that an “abortion facility” meet the “minimum standards … for ambulatory surgical centers” under Texas law. The surgical-center regulations include, among other things, detailed specifications relating to the size of the nursing staff, building dimensions, and other building requirements. The nursing staff must comprise at least “an adequate number of [registered nurses] on duty to meet the following minimum staff requirements: director of the department (or designee), and supervisory and staff personnel for each service area to assure the immediate availability of [a registered nurse] for emergency care or for any patient when needed,” as well as “a second individual on duty on the premises who is trained and currently certified in basic cardiac life support until all patients have been discharged from the facility” for facilities that provide moderate sedation, such as most abortion facilities. Facilities must include a full surgical suite with an operating room that has “a clear floor area of at least 240 square feet” in which “[t]he minimum clear dimension between built-in cabinets, counters, and shelves shall be 14 feet.” There must be a preoperative patient holding room and a postoperative recovery suite. The former “shall be provided and arranged in a one-way traffic pattern so that patients entering from outside the surgical suite can change, gown, and move directly into the restricted corridor of the surgical suite,” and the latter “shall be arranged to provide a one-way traffic pattern from the restricted surgical corridor to the postoperative recovery suite, and then to the extended observation rooms or discharge.” Surgical centers must meet numerous other spatial requirements, including specific corridor widths. Surgical centers must also have an advanced heating, ventilation, and air conditioning system, and must satisfy particular piping system and plumbing requirements. Dozens of other sections list additional requirements that apply to surgical centers.
There is considerable evidence in the record supporting the District Court’s findings indicating that the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary. The District Court found that “risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities.” The court added that women “will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center as compared to a previously licensed facility.” And these findings are well supported.
The record makes clear that the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication. That is because, in such a case, complications would almost always arise only after the patient has left the facility. The record also contains evidence indicating that abortions taking place in an abortion facility are safe—indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements. The total number of deaths in Texas from abortions was five in the period from 2001 to 2012, or about one every two years (that is to say, one out of about 120,000 to 144,000 abortions). Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. See ACOG Brief (the mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion). Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that perform abortions. These facts indicate that the surgical-center provision imposes “a requirement that simply is not based on differences” between abortion and other surgical procedures “that are reasonably related to” preserving women’s health, the asserted “purpos[e] of the Act in which it is found.”
Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions. Requiring scrub facilities; maintaining a one-way traffic pattern through the facility; having ceiling, wall, and floor finishes; separating soiled utility and sterilization rooms; and regulating air pressure, filtration, and humidity control can help reduce infection where doctors conduct procedures that penetrate the skin. But abortions typically involve either the administration of medicines or procedures performed through the natural opening of the birth canal, which is itself not sterile. Nor do provisions designed to safeguard heavily sedated patients (unable to help themselves) during fire emergencies, provide any help to abortion patients, as abortion facilities do not use general anesthesia or deep sedation. Further, since the few instances in which serious complications do arise following an abortion almost always require hospitalization, not treatment at a surgical center, surgical-center standards will not help in those instances either.
The upshot is that this record evidence, along with the absence of any evidence to the contrary, provides ample support for the District Court’s conclusion that “[m]any of the building standards mandated by the act and its implementing rules have such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary.” That conclusion, along with the supporting evidence, provides sufficient support for the more general conclusion that the surgical-center requirement “will not [provide] better care or … more frequent positive outcomes.” The record evidence thus supports the ultimate legal conclusion that the surgical-center requirement is not necessary.
At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion. The parties stipulated that the requirement would further reduce the number of abortion facilities available to seven or eight facilities, located in Houston, Austin, San Antonio, and Dallas/Fort Worth. In the District Court’s view, the proposition that these “seven or eight providers could meet the demand of the entire State stretches credulity.” We take this statement as a finding that these few facilities could not “meet” that “demand.”
The Court of Appeals held that this finding was “clearly erroneous.” It wrote that the finding rested upon the “‘ipse dixit’” of one expert, Dr. Grossman, and that there was no evidence that the current surgical centers (i.e., the seven or eight) are operating at full capacity or could not increase capacity. Unlike the Court of Appeals, however, we hold that the record provides adequate support for the District Court’s finding.
For one thing, the record contains charts and oral testimony by Dr. Grossman, who said that, as a result of the surgical-center requirement, the number of abortions that the clinics would have to provide would rise from “ ‘14,000 abortions annually’ ” to “ ‘60,000 to 70,000’ ”—an increase by a factor of about five. The District Court credited Dr. Grossman as an expert witness. The Federal Rules of Evidence state that an expert may testify in the “form of an opinion” as long as that opinion rests upon “sufficient facts or data” and “reliable principles and methods.” Rule 702. In this case Dr. Grossman’s opinion rested upon his participation, along with other university researchers, in research that tracked “the number of open facilities providing abortion care in the state by … requesting information from the Texas Department of State Health Services … [, t]hrough interviews with clinic staff[,] and review of publicly available information.” The District Court acted within its legal authority in determining that Dr. Grossman’s testimony was admissible. * * * *
For another thing, common sense suggests that, more often than not, a physical facility that satisfies a certain physical demand will not be able to meet five times that demand without expanding or otherwise incurring significant costs. Suppose that we know only that a certain grocery store serves 200 customers per week, that a certain apartment building provides apartments for 200 families, that a certain train station welcomes 200 trains per day. While it is conceivable that the store, the apartment building, or the train station could just as easily provide for 1,000 customers, families, or trains at no significant additional cost, crowding, or delay, most of us would find this possibility highly improbable. The dissent takes issue with this general, intuitive point by arguing that many places operate below capacity and that in any event, facilities could simply hire additional providers. We disagree that, according to common sense, medical facilities, well known for their wait times, operate below capacity as a general matter. And the fact that so many facilities were forced to close by the admitting-privileges requirement means that hiring more physicians would not be quite as simple as the dissent suggests. Courts are free to base their findings on commonsense inferences drawn from the evidence. And that is what the District Court did here.
The dissent now seeks to discredit Dr. Grossman by pointing out that a preliminary prediction he made in his testimony in Abbott about the effect of the admitting-privileges requirement on capacity was not borne out after that provision went into effect. If every expert who overestimated or underestimated any figure could not be credited, courts would struggle to find expert assistance. Moreover, making a hypothesis—and then attempting to verify that hypothesis with further studies, as Dr. Grossman did—is not irresponsible. It is an essential element of the scientific method. The District Court’s decision to credit Dr. Grossman’s testimony was sound, particularly given that Texas provided no credible experts to rebut it ({the District Court declined} to credit Texas’ expert witnesses, in part because Vincent Rue, a nonphysician consultant for Texas, had exercised “considerable editorial and discretionary control over the contents of the experts’ reports”).
Texas suggests that the seven or eight remaining clinics could expand sufficiently to provide abortions for the 60,000 to 72,000 Texas women who sought them each year. Because petitioners had satisfied their burden, the obligation was on Texas, if it could, to present evidence rebutting that issue to the District Court. Texas admitted that it presented no such evidence. Tr. of Oral Arg. 46. Instead, Texas argued before this Court that one new clinic now serves 9,000 women annually. In addition to being outside the record, that example is not representative. The clinic to which Texas referred apparently cost \$26 million to construct—a fact that even more clearly demonstrates that requiring seven or eight clinics to serve five times their usual number of patients does indeed represent an undue burden on abortion access. See Planned Parenthood Debuts New Building: Its \$26 Million Center in Houston is Largest of Its Kind in U.S.,Houston Chronicle, May 21, 2010, p. B1.
Attempting to provide the evidence that Texas did not, the dissent points to an exhibit submitted in Abbott showing that three Texas surgical centers, two in Dallas as well as the \$26–million facility in Houston, are each capable of serving an average of 7,000 patients per year. That “average” is misleading. In addition to including the Houston clinic, which does not represent most facilities, it is underinclusive. It ignores the evidence as to the Whole Woman’s Health surgical-center facility in San Antonio, the capacity of which is described as “severely limited.” The exhibit does nothing to rebut the commonsense inference that the dramatic decline in the number of available facilities will cause a shortfall in capacity should H.B. 2 go into effect. And facilities that were still operating after the effective date of the admitting-privileges provision were not able to accommodate increased demand. See App. 238; Tr. of Oral Arg. 30–31; Brief for National Abortion Federation et al. as Amici Curiae 17–20 (citing clinics’ experiences since the admitting-privileges requirement went into effect of 3–week wait times, staff burnout, and waiting rooms so full, patients had to sit on the floor or wait outside).
More fundamentally, in the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities. Surgical centers attempting to accommodate sudden, vastly increased demand, may find that quality of care declines. Another commonsense inference that the District Court made is that these effects would be harmful to, not supportive of, women’s health.
Finally, the District Court found that the costs that a currently licensed abortion facility would have to incur to meet the surgical-center requirements were considerable, ranging from \$1 million per facility (for facilities with adequate space) to \$3 million per facility (where additional land must be purchased). This evidence supports the conclusion that more surgical centers will not soon fill the gap when licensed facilities are forced to close.
We agree with the District Court that the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an “undue burden” on their constitutional right to do so.
VI
We consider three additional arguments that Texas makes and deem none persuasive.
First, Texas argues that facial invalidation of both challenged provisions is precluded by H.B. 2’s severability clause. * * * * {But} The statute was meant to require abortion facilities to meet the integrated surgical-center standards—not some subset thereof. The severability clause refers to severing applications of words and phrases in the Act, such as the surgical-center requirement as a whole. * * * *
Second, Texas claims that the provisions at issue here do not impose a substantial obstacle because the women affected by those laws are not a “large fraction” of Texan women “of reproductive age,” which Texas reads Casey to have required. But Casey used the language “large fraction” to refer to “a large fraction of cases in which [the provision at issue] is relevant,” a class narrower than “all women,” “pregnant women,” or even “the class of women seeking abortions identified by the State.” (opinion of the Court) (emphasis added). Here, as in Casey, the relevant denominator is “those [women] for whom [the provision] is an actual rather than an irrelevant restriction.”
Third, Texas looks for support to Simopoulos v. Virginia (1983), a case in which this Court upheld a surgical-center requirement as applied to second-trimester abortions. This case, however, unlike Simopoulos, involves restrictions applicable to all abortions, not simply to those that take place during the second trimester. * * * *
For these reasons the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Ginsburg, concurring
* * * * When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae. So long as this Court adheres to Roe v. Wade (1973), and Planned Parenthood of Southeastern Pa. v. Casey (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” cannot survive judicial inspection.
Justice Alito, with whom The Chief Justice and Justice Thomas join, dissenting.
The constitutionality of laws regulating abortion is one of the most controversial issues in American law, but this case does not require us to delve into that contentious dispute. Instead, the dispositive issue here concerns a workaday question that can arise in any case no matter the subject, namely, whether the present case is barred by res judicata. As a court of law, we have an obligation to apply such rules in a neutral fashion in all cases, regardless of the subject of the suit. If anything, when a case involves a controversial issue, we should be especially careful to be scrupulously neutral in applying such rules.
The Court has not done so here * * * * and will undermine public confidence in the Court as a fair and neutral arbiter. * * * *
I – II
{discussions of claim preclusion omitted}
III
Even if res judicata did not bar either facial claim, a sweeping, statewide injunction against the enforcement of the admitting privileges and ASC requirements would still be unjustified. Petitioners in this case are abortion clinics and physicians who perform abortions. If they were simply asserting a constitutional right to conduct a business or to practice a profession without unnecessary state regulation, they would have little chance of success. See, e.g., Williamson v. Lee Optical of Okla., Inc. (1955). Under our abortion cases, however, they are permitted to rely on the right of the abortion patients they serve.
Thus, what matters for present purposes is not the effect of the H.B. 2 provisions on petitioners but the effect on their patients. Under our cases, petitioners must show that the admitting privileges and ASC requirements impose an “undue burden” on women seeking abortions. Gonzales v. Carhart (2007). And in order to obtain the sweeping relief they seek—facial invalidation of those provisions—they must show, at a minimum, that these provisions have an unconstitutional impact on at least a “large fraction” of Texas women of reproductive age. Such a situation could result if the clinics able to comply with the new requirements either lacked the requisite overall capacity or were located too far away to serve a “large fraction” of the women in question.
Petitioners did not make that showing. Instead of offering direct evidence, they relied on two crude inferences. First, they pointed to the number of abortion clinics that closed after the enactment of H.B. 2, and asked that it be inferred that all these closures resulted from the two challenged provisions. They made little effort to show why particular clinics closed. Second, they pointed to the number of abortions performed annually at ASCs before H.B. 2 took effect and, because this figure is well below the total number of abortions performed each year in the State, they asked that it be inferred that ASC-compliant clinics could not meet the demands of women in the State. Petitioners failed to provide any evidence of the actual capacity of the facilities that would be available to perform abortions in compliance with the new law—even though they provided this type of evidence in their first case to the District Court at trial and then to this Court in their application for interim injunctive relief. * * * *
I therefore respectfully dissent.
Check Your Understanding
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Further Your Understanding
CALI Lesson: Abortion CALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your understanding of the complicated doctrine regarding abortion. The lesson includes material and questions on Roe v. Wade; challenges to Roe v. Wade , including Casey and the introduction of the “undue burden standard;” Whole Woman’s Health v. Hellerstedt , and m inors’ access to abortion, including parental notification and consent provisions. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.12%3A_CHAPTER_TEN-_Unenumerated_Rights_and_Due_Process.txt |
I. Equal Protection and “Privacy”
Skinner v. State of Oklahoma, ex. rel. Williamson
316 U.S. 535 (1942)
Mr. Justice Douglas delivered the opinion of the Court.
This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race-the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional questions, we granted the petition for certiorari.
The statute involved is Oklahoma’s Habitual Criminal Sterilization Act. Okl.St.Ann. Tit. 57, § 171, et seq. That Act defines an ‘habitual criminal’ as a person who, having been convicted two or more times for crimes ‘amounting to felonies involving moral turpitude’ either in an Oklahoma court or in a court of any other State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution. Machinery is provided for the institution by the Attorney General of a proceeding against such a person in the Oklahoma courts for a judgment that such person shall be rendered sexually sterile. Notice, an opportunity to be heard, and the right to a jury trial are provided. The issues triable in such a proceeding are narrow and confined. If the court or jury finds that the defendant is an ‘habitual criminal’ and that he ‘may be rendered sexually sterile without detriment to his or her general health’, then the court ‘shall render judgment to the effect that said defendant be rendered sexually sterile’ by the operation of vasectomy in case of a male and of salpingectomy in case of a female. Only one other provision of the Act is material here and that is § 195 which provides that ‘offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses, shall not come or be considered within the terms of this Act.’
Petitioner was convicted in 1926 of the crime of stealing chickens and was sentenced to the Oklahoma State Reformatory. In 1929 he was convicted of the crime of robbery with fire arms and was sentenced to the reformatory. In 1934 he was convicted again of robbery with firearms and was sentenced to the penitentiary. He was confined there in 1935 when the Act was passed. In 1936 the Attorney General instituted proceedings against him. Petitioner in his answer challenged the Act as unconstitutional by reason of the Fourteenth Amendment. A jury trial was had. The court instructed the jury that the crimes of which petitioner had been convicted were felonies involving moral turpitude and that the only question for the jury was whether the operation of vasectomy could be performed on petitioner without detriment to his general health. The jury found that it could be. A judgment directing that the operation of vasectomy be performed on petitioner was affirmed by the Supreme Court of Oklahoma by a five to four decision.
Several objections to the constitutionality of the Act have been pressed upon us. It is urged that the Act cannot be sustained as an exercise of the police power in view of the state of scientific authorities respecting inheritability of criminal traits. It is argued that due process is lacking because under this Act, unlike the act upheld in Buck v. Bell (1927), the defendant is given no opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring. It is also suggested that the Act is penal in character and that the sterilization provided for is cruel and unusual punishment and violative of the Fourteenth Amendment. We pass those points without intimating an opinion on them, for there is a feature of the Act which clearly condemns it. That is its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment.
We do not stop to point out all of the inequalities in this Act. A few examples will suffice. In Oklahoma grand larceny is a felony. Larceny is grand larceny when the property taken exceeds \$20 in value. Embezzlement is punishable ‘in the manner prescribed for feloniously stealing property of the value of that embezzled.’ Hence he who embezzles property worth more than \$20 is guilty of a felony. A clerk who appropriates over \$20 from his employer’s till and a stranger who steals the same amount are thus both guilty of felonies. If the latter repeats his act and is convicted three times, he may be sterilized. But the clerk is not subject to the pains and penalties of the Act no matter how large his embezzlements nor how frequent his convictions. A person who enters a chicken coop and steals chickens commits a felony; and he may be sterilized if he is thrice convicted. If, however, he is a bailee of the property and fraudulently appropriates it, he is an embezzler. Hence no matter how habitual his proclivities for embezzlement are and no matter how often his conviction, he may not be sterilized. * * * * Whether a particular act is larceny by fraud or embezzlement thus turns not on the intrinsic quality of the act but on when the felonious intent arose-a question for the jury under appropriate instructions.
It was stated in Buck v. Bell that the claim that state legislation violates the equal protection clause of the Fourteenth Amendment is ‘the usual last resort of constitutional arguments.’ Under our constitutional system the States in determining the reach and scope of particular legislation need not provide ‘abstract symmetry’. They may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience. It was in that connection that Mr. Justice Holmes, speaking for the Court in Bain Peanut Co. v. Pinson (1931) stated, ‘We must remember that the machinery of government would not work if it were not allowed a little play in its joints.’ Only recently we reaffirmed the view that the equal protection clause does not prevent the legislature from recognizing ‘degrees of evil’ * * * * {and}that ‘the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.’ Thus, if we had here only a question as to a State’s classification of crimes, such as embezzlement or larceny, no substantial federal question would be raised. For a State is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment. Nor is it prevented by the equal protection clause from confining ‘its restrictions to those classes of cases where the need is deemed to be clearest’. * * * * But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ Yick Wo v. Hopkins (1886). When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins; Gaines v. Canada (1938). Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma’s line between larceny by fraud and embezzlement is determined, as we have noted, ‘with reference to the time when the fraudulent intent to convert the property to the taker’s own use’ arises. We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn.
In Buck v. Bell, the Virginia statute was upheld though it applied only to feebleminded persons in institutions of the State. But it was pointed out that ‘so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.’ Here there is no such saving feature. Embezzlers are forever free. Those who steal or take in other ways are not. If such a classification were permitted, the technical common law concept of a ‘trespass’ based on distinctions which are ‘very largely dependent upon history for explanation’ (Holmes, The Common Law, p. 73) could readily become a rule of human genetics.
It is true that the Act has a broad severability clause. But we will not endeavor to determine whether its application would solve the equal protection difficulty. The Supreme Court of Oklahoma sustained the Act without reference to the severability clause. We have therefore a situation where the Act as construed and applied to petitioner is allowed to perpetuate the discrimination which we have found to be fatal. Whether the severability clause would be so applied as to remove this particular constitutional objection is a question which may be more appropriately left for adjudication by the Oklahoma court. That is reemphasized here by our uncertainty as to what excision, if any, would be made as a matter of Oklahoma law. It is by no means clear whether if an excision were made, this particular constitutional difficulty might be solved by enlarging on the one hand or contracting on the other the class of criminals who might be sterilized.
Reversed.
Mr. Chief Justice Stone concurring.
I concur in the result, but I am not persuaded that we are aided in reaching it by recourse to the equal protection clause.
If Oklahoma may resort generally to the sterilization of criminals on the assumption that their propensities are transmissible to future generations by inheritance, I seriously doubt that the equal protection clause requires it to apply the measure to all criminals in the first instance, or to none.
Moreover, if we must presume that the legislature knows-what science has been unable to ascertain-that the criminal tendencies of any class of habitual offenders are transmissible regardless of the varying mental characteristics of its individuals, I should suppose that we must likewise presume that the legislature, in its wisdom, knows that the criminal tendencies of some classes of offenders are more likely to be transmitted than those of others. And so I think the real question we have to consider is not one of equal protection, but whether the wholesale condemnation of a class to such an invasion of personal liberty, without opportunity to any individual to show that his is not the type of case which would justify resort to it, satisfies the demands of due process.
* * * * And so, while the state may protect itself from the demonstrably inheritable tendencies of the individual which are injurious to society, the most elementary notions of due process would seem to require it to take appropriate steps to safeguard the liberty of the individual by affording him, before he is condemned to an irreparable injury in his person, some opportunity to show that he is without such inheritable tendencies. The state is called on to sacrifice no permissible end when it is required to reach its objective by a reasonable and just procedure adequate to safeguard rights of the individual which concededly the Constitution protects.
Mr. Justice Jackson, concurring.
I join the Chief Justice in holding that the hearings provided are too limited in the context of the present Act to afford due process of law. I also agree with the opinion of Mr. Justice Douglas that the scheme of classification set forth in the Act denies equal protection of the law. I disagree with the opinion of each in so far as it rejects or minimizes the grounds taken by the other.
Perhaps to employ a broad and loose scheme of classification would be permissible if accompanied by the individual hearings indicated by the Chief Justice. On the other hand, narrow classification with reference to the end to be accomplished by the Act might justify limiting individual hearings to the issue whether the individual belonged to a class so defined. Since this Act does not present these questions, I reserve judgment on them.
I also think the present plan to sterilize the individual in pursuit of a eugenic plan to eliminate from the race characteristics that are only vaguely identified and which in our present state of knowledge are uncertain as to transmissibility presents other constitutional questions of gravity. This Court has sustained such an experiment with respect to an imbecile, a person with definite and observable characteristics where the condition had persisted through three generations and afforded grounds for the belief that it was transmissible and would continue to manifest itself in generations to come. Buck v. Bell (1927).
There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority-even those who have been guilty of what the majority define as crimes. But this Act falls down before reaching this problem, which I mention only to avoid the implication that such a question may not exist because not discussed. On it I would also reserve judgment.
Eisenstadt v. Baird
405 U.S. 438 (1972)
Mr. Justice Brennan delivered the opinion of the Court.
Appellee William Baird was convicted at a bench trial in the Massachusetts Superior Court under Massachusetts General Laws Ann., c. 272, 21, first, for exhibiting contraceptive articles in the course of delivering a lecture on contraception to a group of students at Boston University and, second, for giving a young woman a package of Emko vaginal foam at the close of his address. The Massachusetts Supreme Judicial Court unanimously set aside the conviction for exhibiting contraceptives on the ground that it violated Baird’s First Amendment rights, but by a four-to-three vote sustained the conviction for giving away the foam. Baird subsequently filed a petition for a federal writ of habeas corpus, which the District Court dismissed. On appeal, however, the Court of Appeals for the First Circuit vacated the dismissal and remanded the action with directions to grant the writ discharging Baird. This appeal by the Sheriff of Suffolk County, Massachusetts, followed, and we noted probable jurisdiction. (1971). We affirm.
Massachusetts General Laws Ann., c. 272, 21, under which Baird was convicted, provides a maximum five-year term of imprisonment for “whoever . . . gives away . . . any drug, medicine, instrument or article whatever for the prevention of conception,” except as authorized in 21A. Under 21A, “[a] registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. [And a] registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician.” As interpreted by the State Supreme Judicial Court, these provisions make it a felony for anyone, other than a registered physician or pharmacist acting in accordance with the terms of 21A, to dispense any article with the intention that it be used for the prevention of conception. The statutory scheme distinguishes among three distinct classes of distributees – first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent, not pregnancy, but the spread of disease. This construction of state law is, of course, binding on us.
The legislative purposes that the statute is meant to serve are not altogether clear. In Commonwealth v. Baird, the Supreme Judicial Court noted only the State’s interest in protecting the health of its citizens: “[T]he prohibition in 21,” the court declared, “is directly related to” the State’s goal of “preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences.” In a subsequent decision, Sturgis v. Attorney General (1970), the court, however, found “a second and more compelling ground for upholding the statute” – namely, to protect morals through “regulating the private sexual lives of single persons.” The Court of Appeals, for reasons that will appear, did not consider the promotion of health or the protection of morals through the deterrence of fornication to be the legislative aim. Instead, the court concluded that the statutory goal was to limit contraception in and of itself – a purpose that the court held conflicted “with fundamental human rights” under Griswold v. Connecticut (1965), where this Court struck down Connecticut’s prohibition against the use of contraceptives as an unconstitutional infringement of the right of marital privacy.
We agree that the goals of deterring premarital sex and regulating the distribution of potentially harmful articles cannot reasonably be regarded as legislative aims of 21 and 21A. And we hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment.
I
We address at the outset appellant’s contention that Baird does not have standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under 21A nor a single person unable to obtain contraceptives. * * * * For the foregoing reasons we hold that Baird, who is now in a position, and plainly has an adequate incentive, to assert the rights of unmarried persons denied access to contraceptives, has standing to do so. We turn to the merits.
II
The basic principles governing application of the Equal Protection Clause of the Fourteenth Amendment are familiar. As the Chief Justice only recently explained in Reed v. Reed (1971):
In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Railway Express Agency v. New York (1949). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’
The question for our determination in this case is whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons under Massachusetts General Laws Ann., c. 272, 21 and 21A. For the reasons that follow, we conclude that no such ground exists.
First. Section 21 stems from Mass. Stat. 1879, c. 159, 1, which prohibited, without exception, distribution of articles intended to be used as contraceptives. In Commonwealth v. Allison (1917), the Massachusetts Supreme Judicial Court explained that the law’s “plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women.” Although the State clearly abandoned that purpose with the enactment of 21A, at least insofar as the illicit sexual activities of married persons are concerned, the court reiterated in Sturgis v. Attorney General, that the object of the legislation is to discourage premarital sexual intercourse. Conceding that the State could, consistently with the Equal Protection Clause, regard the problems of extramarital and premarital sexual relations as “[e]vils . . . of different dimensions and proportions, requiring different remedies,” Williamson v. Lee Optical Co. (1955), we cannot agree that the deterrence of premarital sex may reasonably be regarded as the purpose of the Massachusetts law.
It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication, which is a misdemeanor under Massachusetts General Laws Ann., c. 272, 18. Aside from the scheme of values that assumption would attribute to the State, it is abundantly clear that the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective. What Mr. Justice Goldberg said in Griswold v. Connecticut, (concurring opinion), concerning the effect of Connecticut’s prohibition on the use of contraceptives in discouraging extramarital sexual relations, is equally applicable here. “The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception.” Like Connecticut’s laws, 21 and 21A do not at all regulate the distribution of contraceptives when they are to be used to prevent, not pregnancy, but the spread of disease. Nor, in making contraceptives available to married persons without regard to their intended use, does Massachusetts attempt to deter married persons from engaging in illicit sexual relations with unmarried persons. Even on the assumption that the fear of pregnancy operates as a deterrent to fornication, the Massachusetts statute is thus so riddled with exceptions that deterrence of premarital sex cannot reasonably be regarded as its aim.
Moreover, 21 and 21A on their face have a dubious relation to the State’s criminal prohibition on fornication. As the Court of Appeals explained, “Fornication is a misdemeanor [in Massachusetts], entailing a thirty dollar fine, or three months in jail. Violation of the present statute is a felony, punishable by five years in prison. We find it hard to believe that the legislature adopted a statute carrying a five-year penalty for its possible, obviously by no means fully effective, deterrence of the commission of a ninety-day misdemeanor.” Even conceding the legislature a full measure of discretion in fashioning means to prevent fornication, and recognizing that the State may seek to deter prohibited conduct by punishing more severely those who facilitate than those who actually engage in its commission, we, like the Court of Appeals, cannot believe that in this instance Massachusetts has chosen to expose the aider and abetter who simply gives away a contraceptive to 20 times the 90-day sentence of the offender himself. The very terms of the State’s criminal statutes, coupled with the de minimis effect of 21 and 21A in deterring fornication, thus compel the conclusion that such deterrence cannot reasonably be taken as the purpose of the ban on distribution of contraceptives to unmarried persons.
Second. Section 21A was added to the Massachusetts General Laws by Stat. 1966, c. 265, 1. The Supreme Judicial Court in Commonwealth v. Baird held that the purpose of the amendment was to serve the health needs of the community by regulating the distribution of potentially harmful articles. It is plain that Massachusetts had no such purpose in mind before the enactment of 21A. As the Court of Appeals remarked, “Consistent with the fact that the statute was contained in a chapter dealing with ‘Crimes Against Chastity, Morality, Decency and Good Order,’ it was cast only in terms of morals. A physician was forbidden to prescribe contraceptives even when needed for the protection of health. Nor did the Court of Appeals “believe that the legislature [in enacting 21A] suddenly reversed its field and developed an interest in health. Rather, it merely made what it thought to be the precise accommodation necessary to escape the Griswold ruling.”
Again, we must agree with the Court of Appeals. If health were the rationale of 21A, the statute would be both discriminatory and overbroad. * * * * We conclude, accordingly, that, despite the statute’s superficial earmarks as a health measure, health, on the face of the statute, may no more reasonably be regarded as its purpose than the deterrence of premarital sexual relations.
Third. If the Massachusetts statute cannot be upheld as a deterrent to fornication or as a health measure, may it, nevertheless, be sustained simply as a prohibition on contraception? The Court of Appeals analysis “led inevitably to the conclusion that, so far as morals are concerned, it is contraceptives per se that are considered immoral – to the extent that Griswold will permit such a declaration.” * * * *
We need not and do not, however, decide that important question in this case because, whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.
If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. See Stanley v. Georgia (1969). See also Skinner v. Oklahoma (1942); Jacobson v. Massachusetts (1905).
On the other hand, if Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons. In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious. Mr. Justice Jackson, concurring in Railway Express Agency v. New York (1949), made the point:
“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”
Although Mr. Justice Jackson’s comments had reference to administrative regulations, the principle he affirmed has equal application to the legislation here. We hold that by providing dissimilar treatment for married and unmarried persons who are similarly situated, Massachusetts General Laws Ann., c. 272, 21 and 21A, violate the Equal Protection Clause. The judgment of the Court of Appeals is
Affirmed.
{Justice Douglas, concurring, would resolve the issue on First Amendment grounds.
Justice White, joined by Justice Blackmun, concurring would resolve the issue under Griswold with no need to reach the unmarried issue.
Chief Justice Burger, dissenting, would uphold the statute as regulating non-medical persons.}
Check Your Understanding
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Notes
1. Be prepared to articulate how equal protection operates differently in Skinner and Eisenstadt in relation to substantive due process precedent. Both Skinner and Eisenstadt are often incorrectly recalled as substantive due process cases and often cited in lists of substantive due process cases regarding fundamental rights, but both rest squarely on equal protection doctrine.
2. In Buck v. Bell, 274 U.S. 200 (1927), the Court upheld the sterilization of Carrie Buck, described as a “feeble minded white woman who was committed to the State Colony” and “the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child.” She was eighteen years old at the time of the trial of her case in the Circuit Court under a statute of Virginia, * * * * providing that “the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives.” In the opinion, Justice Holmes (in)famously declared “three generations of imbeciles are enough.”
Subsequent research revealed that Carrie Buck was of normal intelligence and that her “illegitimate child” was the result of a rape, and that her mother had been institutionalized for “promiscuity and prostitution.”
While widely discredited, Buck v. Bell has not been explicitly overruled.
3. Be prepared to discuss the last sentence of Justice Douglas’s opinion in Skinner: “It is by no means clear whether if an excision were made, this particular constitutional difficulty might be solved by enlarging on the one hand or contracting on the other the class of criminals who might be sterilized.”
4. Note that in Chief Justice Stone’s concurring opinion in Skinner, he is referring to procedural due process (notice and an opportunity to be heard).
5. Footnote 10 of the Court’s opinion in Eisenstadt quotes Stanley v. Georgia, 394 U.S. 557 (1969) regarding privacy:
“[A]lso fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.
“‘The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized man.’ Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
Note that Stanley v. Georgia is a First Amendment case in which the Court found the possession of obscenity in one’s home is protected under the First Amendment. Recall that Stanley was also precedent relied upon by the challengers to the Georgia sodomy statute in Bowers v. Harwick. Also note that Olmstead, quoted in the Stanley v. Georgia discussion in footnote 10 of Eisenstadt is a Fourth Amendment case. Thus, the notion of “privacy” extends across constitutional provisions. Stanley is sometimes said to rest on the perspective that a “man’s home is his castle.” Consider whether there are limits to that perspective of privacy.
II. Same-Sex Marriage
United States v. Windsor
570 U.S. ___ (2013)
Justice Kennedy delivered the opinion of the Court.
Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor’s favor.
I
In 1996, as some States were beginning to consider the concept of same-sex marriage, and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA). DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.
Section 3 is at issue here. It amends the Dictionary Act in Title 1, § 7, of the United States Code to provide a federal definition of “marriage” and “spouse.” Section 3 of DOMA provides as follows:
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
1 U. S.C. § 7.
The definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status. The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law.
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993. Concerned about Spyer’s health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in New York City. The State of New York deems their Ontario marriage to be a valid one.
Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation “any interest in property which passes or has passed from the decedent to his surviving spouse.” Windsor paid \$363,053 in estate taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a “surviving spouse.” Windsor commenced this refund suit in the United States District Court for the Southern District of New York. She contended that DOMA violates the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment.
While the tax refund suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives, pursuant to 28 U. S. C. § 530D, that the Department of Justice would no longer defend the constitutionality of DOMA’s § 3. * * * *
In response to the notice from the Attorney General, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of § 3 of DOMA. The Department of Justice did not oppose limited intervention by BLAG.
* * * * On the merits of the tax refund suit, the District Court ruled against the United States. It held that § 3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with interest. Both the Justice Department and BLAG filed notices of appeal, and the Solicitor General filed a petition for certiorari before judgment. Before this Court acted on the petition, the Court of Appeals for the Second Circuit affirmed the District Court’s judgment. It applied heightened scrutiny to classifications based on sexual orientation, as both the Department and Windsor had urged. * * * *
II
It is appropriate to begin by addressing whether either the Government or BLAG, or both of them, were entitled to appeal to the Court of Appeals and later to seek certiorari and appear as parties here. * * * * {The Court decided it should proceed to the merits.}
III
When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right. After waiting some years, in 2007 they traveled to Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage. New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons. After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. See Marriage Equality Act, 2011 N. Y. Laws 749 (codified at N. Y. Dom. Rel. Law Ann. §§ 10–a, 10–b, 13 (West 2013)).
Against this background of lawful same-sex marriage in some States, the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. * * * * {for example, in immigration.} Though these discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.
In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.”
The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. * * * *Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. * * * * In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction. * * * *
Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” Romer v. Evans (1996).
The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. * * * *
The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas (2003). By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.
IV
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration. DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ ” The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.
The arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted. The congressional goal was “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment.
DOMA’s operation in practice confirms this purpose. When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations. It forces them to follow a complicated procedure to file their state and federal taxes jointly. It prohibits them from being buried together in veterans’ cemeteries.
For certain married couples, DOMA’s unequal effects are even more serious. The federal penal code makes it a crime to “assaul[t], kidna[p], or murde[r] . . . a member of the immediate family” of “a United States official, a United States judge, [or] a Federal law enforcement officer,” with the intent to influence or retaliate against that official. Although a “spouse” qualifies as a member of the officer’s “immediate family,” DOMA makes this protection inapplicable to same-sex spouses.
DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.
DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force. For instance, because it is expected that spouses will support each other as they pursue educational opportunities, federal law takes into consideration a spouse’s income in calculating a student’s federal financial aid eligibility. Same-sex married couples are exempt from this requirement. The same is true with respect to federal ethics rules. Federal executive and agency officials are prohibited from “participat[ing] personally and substantially” in matters as to which they or their spouses have a financial interest. A similar statute prohibits Senators, Senate employees, and their spouses from accepting high-value gifts from certain sources, and another mandates detailed financial disclosures by numerous high-ranking officials and their spouses. Under DOMA, however, these Government-integrity rules do not apply to same-sex spouses.
* * * * The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.
What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling v. Sharpe; Adarand Constructors, Inc. v. Peña (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
The judgment of the Court of Appeals for the Second Circuit is affirmed.
Chief Justice Roberts, dissenting.
* * * * At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage. * * * *
Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice joins as to Part I, dissenting.
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
I
{standing discussion omitted}
II
For the reasons above, I think that this Court has, and the Court of Appeals had, no power to decide this suit. We should vacate the decision below and remand to the Court of Appeals for the Second Circuit, with instructions to dismiss the appeal. Given that the majority has volunteered its view of the merits, however, I proceed to discuss that as well.
A
There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe (1954), Department of Agriculture v. Moreno (1973), and Romer v. Evans (1996)—all of which are equal-protection cases. And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of Lawrence v. Texas (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples.
Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. See United States v. Virginia (1996) (SCALIA, J., dissenting). As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe (1993) (a classification “ ‘must be upheld . . . if there is any reasonably conceivable state of facts’ ” that could justify it).
The majority opinion need not get into the strict- vs.- rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” that it violates “basic due process” principles, and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment.” The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “‘ordered liberty.’” Id. (quoting Palko v. Connecticut (1937)).
Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. It is this proposition with which I will therefore engage.
B
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas (2003) (Scalia, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien (1968) {a First Amendment case}. Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them * * * *
* * *
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,”—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
I do not mean to suggest disagreement with The Chief Justice’s view (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion:
DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned marriagesconstitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMAthis state law contrives to deprive some couples married under the laws of their Stateenjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”
Or try this passage:
[DOMA]This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federalstate recognition. This places same-sex couples in an unstable position of being in a second-tier marriagerelationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, . . . .”
Or this—which does not even require alteration, except as to the invented number:
“And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Similarly transposable passages—deliberately transposable, I think—abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”) (approved by a popular vote, 61% to 39% on May 8, 2012), are offset by victories in other places for others, see Maryland Question 6 (establishing “that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license”) (approved by a popular vote, 52% to 48%, on November 6, 2012). Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting “the State of Maine to issue marriage licenses to same-sex couples”) (approved by a popular vote, 53% to 47%, on November 6, 2012) with Maine Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved by a popular vote, 53% to 47%, on November 3, 2009).
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
Check Your Understanding
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Obergefell v. Hodges
576 U.S. ___ (2015)
Justice Kennedy delivered the opinion of the Court.
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
I
These cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman. See, e.g., Mich. Const., Art. I, § 25; Ky. Const. § 233A; Ohio Rev. Code Ann. § 3101.01 (Lexis 2008); Tenn. Const., Art. XI, § 18. The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.
Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. The respondents appealed the decisions against them to the United States Court of Appeals for the Sixth Circuit. It consolidated the cases and reversed the judgments of the District Courts. The Court of Appeals held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State.
The petitioners sought certiorari. This Court granted review, limited to two questions. The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.
II
Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.
A
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.
That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.
The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
Recounting the circumstances of three of these cases illustrates the urgency of the petitioners’ cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems “hurtful for the rest of time.” He brought suit to be shown as the surviving spouse on Arthur’s death certificate.
April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.
Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.
The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.
B
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.
For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation (2000); S. Coontz, Marriage, A History (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes.
Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).
These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.
This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5–28.
For much of the 20th century, moreover, homosexuality was treated as an illness. * * * * In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.
This Court first gave detailed consideration to the legal status of homosexuals in Bowers v. Hardwick (1986). There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans (1996), the Court invalidated an amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas.
Against this background, the legal question of same-sex marriage arose. In 1993, the Hawaii Supreme Court held Hawaii’s law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its implications and reaffirmed in their laws that marriage is defined as a union between opposite-sex partners. So too in 1996, Congress passed the Defense of Marriage Act (DOMA), defining marriage for all federal-law purposes as “only a legal union between one man and one woman as husband and wife.”
The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State’s Constitution guaranteed same-sex couples the right to marry. After that ruling, some additional States granted marriage rights to same-sex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B. Two Terms ago, in United States v. Windsor (2013), this Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples “who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.”
Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider. With the exception of the opinion here under review and one other, the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution. There also have been many thoughtful District Court decisions addressing same-sex marriage—and most of them, too, have concluded same-sex couples must be allowed to marry. In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions. These state and federal judicial opinions are cited in Appendix A.
After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage.
III
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, (1972); Griswold v. Connecticut (1965).
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. See Lawrence. That method respects our history and learns from it without allowing the past alone to rule the present.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B. v. S. L. J. (1996); Cleveland Bd. of Ed. v. LaFleur, (1974); Griswold; Skinner v. Oklahoma (1942); Meyer v. Nebraska (1923).
It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part. This was evident in Baker v. Nelson, a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.
Still, there are other, more instructive precedents. This Court’s cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g., Lawrence; Turner; Zablocki; Loving; Griswold. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt; Poe (Harlan, J., dissenting).
This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See also Zablocki (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence. Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki.
Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge v. Department of Public Health (Ma. 2003).
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor. There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”).
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. Suggesting that marriage is a right “older than the Bill of Rights,” Griswold described marriage this way:
“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor. Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Pierce v. Society of Sisters (1925); Meyer. The Court has recognized these connections by describing the varied rights as a unified whole: “[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.” Zablocki, (quoting Meyer). Under the laws of the several States, some of marriage’s protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor. Marriage also affords the permanency and stability important to children’s best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae.
As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor.
That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago:
There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs.
Democracy in America {originally published in France in two volumes, 1835; 1840}.
In Maynard v. Hill (1888), the Court echoed de Tocqueville, explaining that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been “‘a great public institution, giving character to our whole civil polity.’” This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. Marriage remains a building block of our national community.
For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae; Brief for American Bar Association as Amicus Curiae. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor. The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.
Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg (1997), which called for a “careful description” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.
That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving; Lawrence.
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.
The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.
The synergy between the two protections is illustrated further in Zablocki. There the Court invoked the Equal Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marrying without judicial approval. The equal protection analysis depended in central part on the Court’s holding that the law burdened a right “of fundamental importance.” It was the essential nature of the marriage right, discussed at length in Zablocki, that made apparent the law’s incompatibility with requirements of equality. Each concept—liberty and equal protection—leads to a stronger understanding of the other.
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of coverture, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. § 53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. * * * * Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.
Other cases confirm this relation between liberty and equality. In M. L. B. v. S. L. J. (1996), the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to appeal the termination of their parental rights. In Eisenstadt v. Baird, the Court invoked both principles to invalidate a prohibition on the distribution of contraceptives to unmarried persons but not married persons. And in Skinner v. Oklahoma ex rel. Williamson, the Court invalidated under both principles a law that allowed sterilization of habitual criminals. In Lawrence the Court acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State “cannot demean their existence or control their destiny by making their private sexual conduct a crime.” This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki; Skinner. These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
IV
There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages.
Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life—state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities—have devoted substantial attention to the question. This has led to an enhanced understanding of the issue—an understanding reflected in the arguments now presented for resolution as a matter of constitutional law. Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette (1943). {First Amendment case regarding compulsory flag salute in schools}. This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”
It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.
This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights. In Bowers v. Hardwick, a bare majority upheld a law criminalizing same-sex intimacy. That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect, Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court. See (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why Lawrence held Bowers was “not correct when it was decided.” Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.
A ruling against same-sex couples would have the same effect—and, like Bowers, would be unjustified under the Fourteenth Amendment. The petitioners’ stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Ijpe DeKoe and Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with the petitioners’ cases, the Court has a duty to address these claims and answer these questions.
Indeed, faced with a disagreement among the Courts of Appeals—a disagreement that caused impermissible geographic variation in the meaning of federal law—the Court granted review to determine whether same-sex couples may exercise the right to marry. Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society’s most basic compact. Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.
The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
V
These cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the case of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples.
Being married in one State but having that valid marriage denied in another is one of “the most perplexing and distressing complication[s]” in the law of domestic relations. Williams v. North Carolina (1942). Leaving the current state of affairs in place would maintain and promote instability and uncertainty. For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages already have occurred—the disruption caused by the recognition bans is significant and ever-growing.
As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
* * *
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, dissenting.
Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 (A. Hamilton).
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id. (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” I have no choice but to dissent.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.
I
Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?
The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. * * * *
A
As the majority acknowledges, marriage “has existed for millennia and across civilizations.” For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. * * * *
This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. * * * *
B
Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Baker v. Nelson (1972).
In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage.
Over the last few years, public opinion on marriage has shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage.
In all, voters and legislators in eleven States and the District of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage.
Petitioners brought lawsuits contending that the Due Process and Equal Protection Clauses of the Fourteenth Amendment compel their States to license and recognize marriages between same-sex couples. {The Sixth Circuit rejected their claims} and I would affirm.
II
Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. The majority nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.
The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
A
Petitioners’ “fundamental right” claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.”
This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification.
Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg (1997); see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”).
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”
Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.” In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law.”
The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to legislative concern about the health of bakery employees, an issue on which there was at least “room for debate and for an honest difference of opinion.” (opinion of Harlan, J.). The majority’s contrary conclusion required adopting as constitutional law “an economic theory which a large part of the country does not entertain.” (opinion of Holmes, J.). As Justice Holmes memorably put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution.” In the decades after Lochner, the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that “[t]he criterion of constitutionality is not whether we believe the law to be for the public good.” By empowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights (1958). Eventually, the Court recognized its error and vowed not to repeat it. “The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. 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.” Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical (1955).
Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for “judicial self-restraint.” Our precedents have required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg.
Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in Glucksberg, many other cases both before and after have adopted the same approach.
Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. But given the few “guideposts for responsible decisionmaking in this unchartered area,” “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on [an] abstract formula.” Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identifying fundamental rights, does not provide a meaningful constraint on a judge, for “what he is really likely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut (1965) (Harlan, J., concurring in judgment).
B
The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.
1
The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. Nobody disputes those points. Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.
When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley (1987); Zablocki v. Redhail (1978); Loving v. Virginia (1967). These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.
None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”
In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.
2
The majority suggests that “there are other, more instructive precedents” informing the right to marry. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird (1972); see Olmstead v. United States (1928) (Brandeis, J., dissenting).
The Court also invoked the right to privacy in Lawrence v. Texas (2003) which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touc[h] upon the most private human conduct, sexual behavior . . . in the most private of places, the home.”
Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. At the same time, the laws in no way interfere with the “right to be let alone.”
The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman (1961). As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.”
In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs. (1989); San Antonio Independent School Dist. v. Rodriguez (1973). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.
3
Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.
Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner (emphasis added).
To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner. (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).
The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period.
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.
4
Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.”
Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics. And it certainly does not enact any one concept of marriage.
The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” As petitioners put it, “times can blind.” But to blind yourself to history is both prideful and unwise. “The past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951).
III
In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.” The majority’s approach today is different:
“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.”
The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence (O’Connor, J., concurring in judgment).
It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.
IV
The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White (2002) (Kennedy, J., concurring) {First Amendment case}. That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.”
Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” The answer is surely there in one of those amicus briefs or studies.
Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN (2014).
The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.
When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” (Scalia, J., dissenting).
But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fairminded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.
In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.
* * *
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
I respectfully dissent.
Scalia, J., dissenting (in which Thomas, J., joined).
I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy. * * * *
I.
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. * * * *
But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. * * * *
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
II
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
* * *
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
Justice Thomas, with whom Justice Scalia joins, dissenting.
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
* * * *
Justice Alito, with whom Justice Scalia and Justice Thomas join, dissenting.
Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.
* * * *
Check Your Understanding
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Notes
1. Be prepared to articulate the due process, equal protection, and “synergy” arguments possible after Windsor and Obergefell.
2. Justice Scalia’s dissent in Windsor was used by some judges as a template in deciding challenges to same-sex marriage supporting the conclusion that the same-sex marriage ban was unconstitutional. See Ruthann Robson, Justice Scalia’s Petard and Same-Sex Marriage, 17 CUNY L. REV. F. 72 (2014).
3. Note that a companion case to United States v. Windsor was Hollingsworth v. Perry, f/k/a Perry v. Schwarzenegger, complex litigation involving the constitutionality of California’s Proposition 8 which amended the California state constitution to prohibit same-sex marriage, after the California Supreme Court had found a constitutional right to same-sex marriage. The United States Supreme Court found it did not have the power to decide Perry because there was no case or controversy: California did not defend Proposition 8 even at trial and the “intervenors” proved problematical. Like Windsor, the government responsible for the enactment chose not to defend the constitutionality, but the Court in Windsor found BLAG had sufficient stake in the controversy.
4. Justice Kennedy, who wrote the Court’s opinion in Windsor and Obergefell, retired from the Court in 2018, replaced by Justice Brett Kavanaugh who was confirmed after a contentious process. Justice Ginsburg, who joined the 5-4 majorities in Windsor and Obergefell, died in September 2020, and was replaced by Justice Amy Coney Barrett, who was confirmed by the Senate a month later by a slim majority, two weeks before the Presidential election. Many commentators believe that Obergefell opinion may be limited or even overruled by the newly composed Court.
Further Your Understanding
CALI, The Center for Assisted Legal Instruction, has a lesson designed to further your understanding of the constitutional issues, doctrine, and theories regarding the same-sex marriage cases, other marriage cases considered by the United States Supreme Court, and possible application to future controversies. | textbooks/biz/Constitutional_Law/01%3A_Chapters/1.13%3A_CHAPTER_ELEVEN-_Liberty_Due_Process_and_Equal_Protection.txt |
I. General Principles
Every state in the United States has its own state constitution that, like the United States Constitution, structures its government and contains provisions relating to individual rights.
Generally speaking, state constitutions can provide greater individual rights than the federal constitution. The metaphor often used is that while the federal constitution provides the floor, state constitutions can provide the ceiling.
When considering the ability of state constitutions to grant greater rights and employing the floor/ceiling metaphor, there are three important caveats grounded in the Supremacy Clause, Article VI.
First, the “ceiling” of the state constitutional right cannot infringe on a right guaranteed by the federal constitution. For example, if a state constitutional provision was interpreted to protect sexual minorities under a strict scrutiny standard, a person could challenge that protection based on a denial of their own equal protection rights or under a different constitutional right such as the First Amendment’s protection of free exercise of religion. Further, recall that a state constitutional provision itself can violate the United States Constitution, Romer v. Evans (1996).
Second, the “ceiling” of the state constitutional right applies only to infringements by the state and its subdivisions. In other words, a federal statute cannot infringe a state constitutional right.
Third, the state courts are ultimate arbiters of their state constitutional rights, but a decision granting greater rights as a matter of state constitutional law must make it clear that the state constitutional provision is an “independent” ground of the decision. There can be confusion if a state court cites both state constitutional cases and United States Supreme Court cases on a specific doctrine. If the state court makes it clear and unambiguous that it is resting its decision on the state grounds (and only using the Supreme Court cases as persuasive or illustrative), then the United States Supreme Court cannot review the state court’s decision.
Each state constitution is different. The text of state constitutional provisions relating to rights can be compared to the United States Constitution’s provisions in three ways:
• First, the text can be exactly the same. For example, many states have an equal protection clause and a due process clause for example. Even if the language is exactly the same, the state courts can interpret the meaning of the state clause to be more expansive than the federal, assuming the state courts make it clear that they are relying on their state constitution.
• Second, the text can be somewhat similar or analogous. For example, some states have enumerated the classifications protected in the equal protection clause and have included “sex.” (This can be known as a state-Equal Rights Amendment, or “little ERA”). State courts then most likely subject sex classifications to a version of strict scrutiny rather than intermediate scrutiny.
• Third, the text can be unique. For example, some states include a protection for “privacy” in their constitution or provide for public education to be widely available.
Again, no matter whether the state constitutional provision is the same, similar, or unique, the state courts can interpret the provision to grant greater rights than would be available under the United States Constitution, subject to the Supremacy Clause caveats.
Additionally, although the United States Constitution, with the exception of the Thirteenth Amendment, requires a threshold of “state action,” a state constitution can reach private action. For example, a 1970 amendment to the Illinois Constitution provides:
All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property. These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.
Art. I § 17, Illinois Constitution.
The following sections provide examples.
II. Examples
Education
In Edgewood Independent Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989), the Supreme Court of Texas confronted the similar inequities that the United States Supreme Court found could not be constitutionally remedied in San Antonio Independent School District v. Rodriguez (1973). After discussing the financing disparities, the Texas Supreme Court linked spending to quality of education:
The amount of money spent on a student’s education has a real and meaningful impact on the educational opportunity offered that student. High-wealth districts are able to provide for their students broader educational experiences including more extensive curricula, more up-to-date technological equipment, better libraries and library personnel, teacher aides, counseling services, lower student-teacher ratios, better facilities, parental involvement programs, and drop-out prevention programs. They are also better able to attract and retain experienced teachers and administrators.
The differences in the quality of educational programs offered are dramatic. For example, San Elizario I.S.D. offers no foreign language, no pre-kindergarten program, no chemistry, no physics, no calculus, and no college preparatory or honors program. It also offers virtually no extra-curricular activities such as band, debate, or football. At the time of trial, one-third of Texas school districts did not even meet the state-mandated standards for maximum class size. The great majority of these are low-wealth districts. In many instances, wealthy and poor districts are found contiguous to one another within the same county.
The challenge was based on three Texas state constitutional provisions:
• Texas Constitution’s equal rights guarantee of article I, section 3 {“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”};
• Texas Constitution’s due course of law guarantee of article I, section 19 {“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”}; and
• Texas Constitution’s “efficiency” mandate of article VII, section 1 regarding public schools {“A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”}
The court concluded that the disparities in financing violated the “efficiency” mandate of article VII, § 1. The court noted that the Texas constitution
requires an “efficient,” not an “economical,” “inexpensive,” or “cheap” system. The language of the Constitution must be presumed to have been carefully selected. The framers used the term “economical” elsewhere and could have done so here had they so intended.
It continued that considering “the general spirit of the times and the prevailing sentiments of the people,” it is apparent “from the historical record that those who drafted and ratified article VII, section 1 never contemplated the possibility that such gross inequalities could exist within an “efficient” system.” Further, the court stated that “clearly that the purpose of an efficient system was to provide for a ‘general diffusion of knowledge.’”
The court acknowledged that courts in nine other states with similar school financing systems have ruled those systems to be unconstitutional for varying reasons, usually under their state constitutions. The court directed the legislature to take immediate action to remedy the constitutional defect.
Disability
In Daly v. DelPonte, 624 A.2d 876 (Conn. 1993), the Connecticut Supreme Court considered a challenge under the Connecticut Constitution, Article XXI, adopted by voter referendum in 1984, which added “physical or mental disability” to its equal protection clause: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.” (“sex” had been added in 1974). Edward Daly, who suffered from seizures, challenged a Commission of Motor Vehicles suspension of his driver’s license and specific conditions regarding submitting medical reports every three months. The court applied strict scrutiny, holding that while traffic safety was a compelling governmental interest, the means chosen was not sufficiently narrowly tailored to achieve that interest. The lack of narrow tailoring was based on a lack of considering Daly’s specific medical condition.
In Breen v. Carlsbad Municipal Sch., 120 P.3d 413 (N.M. 2005), the New Mexico Supreme Court considered a differential in its state workers compensation scheme which granted compensation for life for total permanent physical disabilities and up to 700 weeks of compensation for permanent partial physical disabilities, yet capped compensation for all primary mental disabilities at 100 weeks. The court considered a challenge pursuant to the New Mexico Constitution which provides, “nor shall any person be denied equal protection of the laws.” N.M. Const. art. II, § 18. Thus, it is identical to the Fourteenth Amendment. Nevertheless, the court decided that persons with mental disability should be afforded intermediate scrutiny:
Based on our development of New Mexico’s Equal Protection Clause, it is appropriate to apply intermediate scrutiny to classifications based on mental disability because such persons are a sensitive class. The historical discriminatory treatment of persons with mental disabilities shows that the courts should be sensitive to possible discrimination against persons with mental disabilities contained in legislation that purports to treat them differently based solely on the fact that they have a mental disability.
Finally, we are not basing our decision to consider persons with mental disabilities a sensitive class for purposes of equal protection on any notion that such persons cannot advocate for themselves in the political process. To the contrary, persons with mental disabilities and their political allies are active participants in the political process. However, their effective advocacy is seriously hindered by the need to overcome the already deep-rooted prejudice against their integration in society. The gains in societal acceptance and political advocacy made by the disability rights movement today could easily be reversed through discriminatory laws in the future.
The court found that the disparity between the compensation granted to workers who suffer physical injuries and those who suffer mental injuries was not substantially related to the important government interests such as preventing fraud and curtailing costs.
“Sodomy”
As the Court in Lawrence v. Texas noted, after Bowers v. Hardwick,
The courts of five different States have declined to follow it {Hardwick} in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S.E.2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992).
For example, the Arkansas constitutional provision in Jegley was Art. 2 § 2 entitled “Individual Liberty” which reads:
All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.
The Arkansas Supreme Court interpreted this provision as including a “right to privacy,” noting that the court has “recognized protection of individual rights greater than the federal floor in a number of cases” and that “Arkansas has a rich and compelling tradition of protecting individual privacy.” The court held that there was a fundamental right to privacy meriting strict scrutiny and given that the state conceded there was no compelling governmental interest, the statute criminalizing sodomy was unconstitutional. The court also found the statute, which criminalized only acts between members of the “same sex,” violated the state constitution’s equal protection provision.
Minors and Abortions
The dynamics between state legislatures, state courts, and state voters can be intense on controversial matters such as minors and abortions. In 1988, the Florida legislature passed a parental consent statute, § 390.001(4)(a), Florida Statutes (Supp. 1988), that provided that prior to undergoing an abortion, a minor must obtain parental consent or, alternatively, must convince a court that she is sufficiently mature to make the decision herself or that, if she is immature, the abortion nevertheless is in her best interests. This statute comported with the Fourteenth Amendment doctrine.
However, in In re T.W., 551 So.2d 1186 (Fla. 1989), the Florida Supreme Court declared this statute unconstitutional under the Florida constitution’s “right of privacy.” In 1980, pursuant to a voter referendum, Art. 1 § 23 was added to the constitution to provide:
Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
The court quoted a previous decision as stating:
The citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words “unreasonable” or “unwarranted” before the phrase “governmental intrusion” in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.
In construing the provision, the court stressed that “every natural person” included minors. The court applied strict scrutiny under the state constitution, essentially determining that a minor did not have lesser constitutional rights than an adult. It invalidated the statute.
The next year the legislature passed § 390.01115, Florida Statutes (1999), the Parental Notice of Abortion Act, which again provided that prior to undergoing an abortion, a minor must notify a parent of her decision or, alternatively, must convince a court that she is sufficiently mature to make the decision herself, or that, if she is immature, the abortion nevertheless is in her best interests.
In North Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612 (Fla. 2003), the Florida Supreme Court reaffirmed In re T.W. and reached the same conclusion, finding the statute unconstitutional.
The Florida Legislature then proposed, and the voters ratified, a constitutional amendment authorizing the Florida Legislature, notwithstanding a minor’s right to privacy under Florida law, to require notification to a parent or guardian before termination of a minor’s pregnancy. The amendment provides:
The legislature shall not limit or deny the privacy right guaranteed to a minor under the United States Constitution as interpreted by the United States Supreme Court. Notwithstanding a minor’s right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor’s pregnancy. The Legislature shall provide exception to such requirement for notification and shall create a process for judicial waiver of the notification.
Fla. Const. art. X, § 22.
Thereafter, in 2005, the legislature passed Florida’s Parental Notice of Abortion Act § 390.01114, Florida Statutes. The statute provides that actual notice, as defined, of an abortion shall be given to a parent or legal guardian of a minor by a physician at least 48 hours before the abortion. The statute provides exceptions in cases of medical emergency, waiver of notice, or where the minor has been married or has had the disability of nonage removed. It provides procedures for judicial waiver of notice.
Same-Sex Marriage
As the appendices to Obergefell v. Hodges attest, there was much litigation before the United States Supreme Court decided the case. A fair amount of this litigation was under state constitutions, although at times this was complicated by state constitutional amendments passed by voter referendum which limited the definition of marriage as “one man and one woman.”
Among the earliest cases was Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), in which the Hawai’i Supreme Court construed the specific Hawai’i constitutional provision protecting a right to privacy as not including a fundamental right of persons of the same sex to marry, but construing the state constitution’s equal protection clause including sex as mandating strict scrutiny for the same-sex marriage ban. The court remanded the case for trial on strict scrutiny, but the legislature intervened, proposing a voter referendum which passed – – – and which gave only the legislature the power to declare same-sex marriage valid.
In Baker v. Vermont, 744 A.2d 864 (Vt. 1999), the Vermont Supreme Court construed the state constitution’s “common benefits clause,” dating from 1777, which provides:
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.
The court stated,
The words of the Common Benefits Clause are revealing. While they do not, to be sure, set forth a fully-formed standard of analysis for determining the constitutionality of a given statute, they do express broad principles which usefully inform that analysis. Chief among these is the principle of inclusion. As explained more fully in the discussion that follows, the specific proscription against governmental favoritism toward not only groups or “set[s] of men,” but also toward any particular “family” or “single man,” underscores the framers’ resentment of political preference of any kind. The affirmative right to the “common benefits and protections” of government and the corollary proscription of favoritism in the distribution of public “emoluments and advantages” reflect the framers’ overarching objective “not only that everyone enjoy equality before the law or have an equal voice in government but also that everyone have an equal share in the fruits of the common enterprise.” W. Adams, The First American Constitutions 188 (1980) (emphasis added). Thus, at its core the Common Benefits Clause expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage.
The court eschewed “the rigid, multi-tiered analysis evolved by the federal courts under the Fourteenth Amendment,” in favor of an “inclusionary principle.” The court did conclude that the exclusion of same-sex couples from the “common benefits” accorded to marriage did violate this provision but retained jurisdiction to “permit the Legislature to consider and enact legislation consistent with the constitutional mandate.” The Vermont legislature ultimately adopted a civil partnership scheme.
Check Your Understanding
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
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Notes
1. Having come to the end of LEDP, if you were drafting a state constitution, which rights would you include? How specific would you be?
2. If you could amend the United States Constitution in only one way, what would it be?
1.15: Appendix
1
This is where you can add appendices or other back matter.
02: Notices
Notices
Ruthann Robson
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Table of Cases: Chronological
Table of Cases: Chronological
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842)
Scott v. Sandford, 60 US (19 How.) 393 (1857)
Virginia v. West Virginia, 78 U.S. 39 (1871)
The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)
Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1873)
Minor v. Happersett, 88 U.S. (12 Wall.) 162 (1874)
Strauder v. West Virginia, 100 U.S. 303 (1880)
Virginia v. Rives, 100 U.S. 313 (1880)
Ex Parte Virginia, 100 U.S. 339 (1880)
The Civil Rights Cases, 109 U.S. 3 (1883)
Barbier v. Connolly, 113 U.S. 27 (1884)
Soon Hing v. Crowley, 113 U.S. 703 (1885)
Yick Wo v. Hopkins, 118 U.S. 356 (1886)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Alleyer v. Louisana, 165 U.S. 578 (1897)
Lochner v. New York, 198 U.S. 45 (1905)
Meyer v. Nebraska, 262 U.S. 390 (1923)
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Buck v. Bell, 274 U.S. 200 (1927)
Ashwander v. TVA, 297 U.S. 288 (1936)
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)
United States v. Carolene Products Company, 304 U.S. 144 (1938) – footnote four
State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)
Hill v. Texas, 316 U.S. 400 (1942)
Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942)
Hirabayashi v. United States, 320 U.S. 81 (1943)
Korematsu v. United States, 323 U.S. 214 (1944)
Marsh v. Alabama, 326 U.S. 501 (1946)
Shelley v. Kraemer, 334 U.S. 1 (1948)
Goesaert v. Cleary, 335 U.S. 464 (1948)
Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949)
Sweatt v. Painter, 339 U.S. 629 (1950)
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Bolling v. Sharpe, 347 U.S. 497 (1954)
Brown v. Board of Education of Topeka (Brown II), 349 U.S. 294 (1955)
Williamson v. Lee Optical Co., 348 U.S. 483 (1955)
Cooper v. Aaron, 358 U.S. 1 (1958)
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
Griffin v. County School Board, 377 U.S. 218 (1964)
Reynolds v. Sims, 377 U.S. 533 (1964)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)
Loving v. Virginia, 388 U.S. 1 (1967)
Levy v. Louisiana, 391 U.S. 68 (1968)
Dandridge v. Williams, 397 U.S. 471 (1970)
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)
Reed v. Reed, 404 U.S. 71 (1971)
Eisenstadt v. Baird, 405 U.S. 438 (1972)
Moose Lodge v. Irvis, 407 U.S. 163 (1972)
Roe v. Wade, 410 U.S. 113 (1973)
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)
Frontiero v. Richardson, 411 U.S. 677 (1973)
United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973)
Hernandez v. Texas, 347 U.S. 475 (1974)
Geduldig v. Aiello, 417 U.S. 484 (1974)
Richardson v. Ramirez, 418 U.S. 24 (1974)
Milliken v. Bradley, 418 U.S. 717 (1974)
Washington v. Davis, 426 U.S. 229 (1976)
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)
Craig v. Boren, 429 U.S. 190 (1976)
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977)
Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977)
Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)
Bellotti v. Baird (Bellotti II), 443 U.S. 622 (1979)
Fullilove v. Klutznick, 448 U.S. 448 (1980)
Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981)
Blum v. Yaretsky, 457 U.S. 991 (1982)
Plyler v. Doe, 457 U.S. 202 (1982)
Lehr v. Robertson, 463 U.S. 248 (1983)
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)
Batson v. Kentucky, 476 U.S. 79 (1986)
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)
Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986)
Bowers v. Hardwick, 478 U.S. 186 (1986)
Clark v. Jeter, 486 U.S. 456 (1988)
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
City of Dallas v. Stanglin, 490 U.S. 19 (1989)
Edgewood Independent Sch. Dist. v. Kirby, 777 S.W.2d 391(Tex. 1989)
Hernandez v. New York, 500 U.S. 352 (1991)
Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614 (1991)
Freeman v. Pitts, 498 U.S. 1081 (1992)
Planned Parenthood of Northeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993)
Daly v. DelPonte, 624 A.2d 876 (Conn. 1993)
FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)
Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)
Romer v. Evans, 517 U.S. 620 (1996)
United States v. Virginia (VMI), 518 U.S. 515 (1996)
Washington v. Glucksberg,521 U.S. 702 (1997)
Saenz v. Roe, 526 U.S. 489 (1999)
Baker v. Vermont, 744 A.2d 864 (Vt. 1999)
Bush v. Gore, 531 U.S. 98 (2000)
Gratz v. Bollinger, 539 U.S. 244 (2003)
Grutter v. Bollinger, 539 U.S. 306 (2003)
Lawrence v. Texas, 539 U.S. 558 (2003)
Breen v. Carlsbad Municipal Sch., 120 P.3d 413 (N.M. 2005)
Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)
District of Columbia v. Heller, 554 U.S. 570 (2008)
McDonald v. City of Chicago, 561 U.S. 742 (2010)
Fisher v. University of Texas at Austin (Fisher I), 570 U.S. ___ (2013)
Hollingsworth v. Perry, 570 U.S. ___ (2013)
United States v. Windsor, 570 U.S. ___ (2013)
Fisher v. Univ. of Texas at Austin, 758 F.3d 633 (5th Cir. 2014)
Schuette v. Coalition to Defend Affirmation Action By Any Means Necessary (BAMN), 572 U.S. ___ (2014)
Obergefell v. Hodges, 576 U.S. ___ (2015)
Caetano v. Massachusetts, 577 U.S. ___ (2016)
Fisher v. University of Texas at Austin (Fisher II), 579 U.S. ___ (2016)
New York State Rifle and Pistol Ass’n v. Cuomo and The Connecticut Citizens’ Defense League v. Malloy, 804 F.3d 242 (2nd Cir. 2015), cert denied, sub nom Shew v. Malloy, __ U.S. __ (2016)
Whole Woman’s Health v. Hellerstadt, 579 U.S. ___ (2016)
Cooper v. Harris, 581 U.S. ___ (2017)
Sessions v. Morales-Santana, 582 U.S. ___ (2017)
Gill v. Whitford, 585 U.S. _ (2018)
Timbs v. Indiana, 586 U.S. ___ (2019)
Rucho v. Common Cause, 588 U.S. ___ (2019)
Manhattan Community Access Corporation v. Halleck, 588 U.S. ___ (2019)
New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), cert. granted, New York State Rifle & Pistol Ass’n, Inc. v. City of New York, N.Y., ___ U.S.___ (2019) | textbooks/biz/Constitutional_Law/03%3A_Table_of_Cases-_Chronological.txt |
Let’s begin by defining a crime. Black’s Law Dictionary defines a crime as “a positive or negative act in violation of penal law.” Crime, Black’s Law Dictionary (6th ed. 1990). Alaska law is more explicit. It defines a crime as “an offense for which a sentence of imprisonment is authorized; a crime is either a felony or a misdemeanor.” See AS 11.81.900(b)(11). We will explore this definition in more depth shortly, but for now remember that a crime is a formal announcement of a wrong against society, punishable by the government.
You will learn about criminal acts and omissions to act in Chapter 4 “The Elements of a Crime.” For now, it is important to understand that a voluntary act (or failure to act) and criminal intent (culpable mental state) are elements or parts of every crime. Generally speaking, criminal law may only be enforced by the sovereign. The government must enact a criminal law specifying a crime and its elements before it can punish an individual for criminal behavior. Criminal laws are the primary focus of this book. As you slowly start to build your knowledge and understanding of criminal law, you will notice some unique characteristics of the United States’ legal system. For example, private citizens do not have the authority to criminally enforce a state’s criminal laws. See generally Cooper v. District Court, 133 P.3d 692, 697-700 (Alaska App. 2006). Also, criminal laws are built on the assumption that a reasonable person makes a rational decision about the consequences of their criminal behavior prior to violating it. For this reason, criminal laws must provide notice about what is prohibited before the law is enforceable. There are no “secret” criminal laws.
Laws differ significantly from state to state. Throughout the United States, each state and the federal government criminalize different behaviors. Although this plethora of laws makes understanding America’s legal systems more complicated, it is a bedrock principle of federalism. The United States is made up of fifty individual states, the federal government, and hundreds of tribal governments, each of which is free to define crimes as it sees fit (within constitutional boundaries). A state’s criminal code often reflects its unique history, cultural makeup, and geography. Alaska is no exception. Alaska’s criminal code reflects the relative youth of the state, its vast geographical footprint, and its dependence on resource extraction. For example, you will see that Alaskans have borrowed heavily from other jurisdictions and enacted distinct laws that reflect a series of unique value judgments about Alaska.
Although scholars disagree, generally speaking, Indian Tribes derive their police power from Congress and is limited to “Indian Country,” a specific term that has been the subject to extensive litigation. Alaska has 256 federally recognized Indian Tribes, more than any other state. But Alaska Native Tribes do not reside on Indian Country, with one notable exception, the Metlakatla Indian Community. Tribal sovereignty, and a tribe’s police powers, are complicated subjects and beyond the scope of this book.
Also, remember that laws are not static. As society changes, so do the laws that govern behavior. Evolving value systems naturally lead to modifying or deleting laws and regulations to support changing beliefs. Although a certain stability is essential to the enforcement of rules, occasionally the rules must change. Take for example Alaska’s decision to implement criminal justice reform in 2016. With the passage of Senate Bill 91 (SB91), Alaska radically changed its criminal code. SB91 greatly reduced the use of cash bail, reduced jail sentences for most criminal offenses, and forced executive branch agencies to rely on alternatives to incarceration. See 2016 Alaska Sess. Laws ch. 36; seealso Alaska Criminal Justice Commission, Annual Report 2020. SB91 remained in effect for two years before the public demanded tougher enforcement of criminal laws. The Alaska Legislature largely repealed the criminal justice reform embodied in SB91 in 2019. See 2019 Alaska Sess. Laws ch. 4. The reasons for SB91 and its repeal are beyond the scope of this text, but it serves as a good reminder of how criminal laws can, and frequently do, change depending on public perception.
Try to maintain an open mind when reviewing the different and often contradictory laws outlined in this book. Law is not exact like science or math. Also try to become comfortable with the gray area, rather than viewing situations as black or white. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/01%3A_Introduction_and_Overview_to_Criminal_Law/1.01%3A_Definition_of_Crime.txt |
Morality and criminal law frequently overlap. It is common to view a violation of criminal law as an immoral act. However, there is no universal moral code. While philosophers will continue to debate the definition of ‘morality’, we will focus on a more modest task. The criminal law does not punish every moral wrong. Instead, the relationship between crime and morality looks more like a Venn diagram.
Figure 1.1 – Venn Diagram showing the overlap between moral wrongs and criminal wrongs.
On one hand, we have moral wrongs (represented as “A”) that are not necessarily criminal acts. For example, adultery is frequently considered immoral, but few believe such an act should give rise to criminal liability. Likewise, failing to help a small child drowning in a swimming pool may seem morally questionable, but the criminal law generally does not require a person to put themselves in harm’s way, even if most of us believe that we should intervene if we can. On the other hand, we have criminal laws that may not, at first blush, implicate our collective morality (represented as “B”). For example, laws that criminally punish wasting big game meat in the field (AS 16.30.010) or criminal laws that mandate jail for driving without a proper license (AS 28.15.291) are generally not considered moral wrongs (beyond the moral failure to follow the law) but they are criminalized nonetheless. Finally, there are activities that society generally considers morally wrong and are also criminal law violations (represented as “C”). These acts include behaviors such as murder, sexual assault, and robbery. A significant portion of criminal laws is also immoral.
Most of us can agree that some acts should always be criminal – e.g., execution murder, forcible rape, or robbery. Universal agreement exists that these acts should be outlawed, and individuals who commit these acts should be punished. People may disagree about the extent or type of punishment, but they generally do not disagree about the underlying conduct. Within the context of criminal law, we refer to these crimes as “malum in se.” A crime is “malum in se” if it is “inherently evil.” See Kinney v. State, 927 P.2d 1289 (Alaska App. 1996) (citing Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), sec. 1.6(b), Vol. 1, p. 45.). Mala in se offenses are criminal behaviors that society universally considers to be wrong and morally unacceptable.
But the law criminalizes much more conduct than just murders, rapes, and robberies. Legislators routinely criminalize less dangerous (or non-dangerous) acts. Alaska, like most states, has criminalized drug possession, prostitution, and driving without a valid license. There is much debate as to whether this type of conduct is immoral. Under the law, these criminal acts are considered “malum prohibitum.” A crime is “malum prohibitum” if the act is criminal because it violates the criminal law. A “malum prohibitum” offense is “not inherently evil [but is] wrong only because [it is] prohibited by the legislature.” See id.
We will revisit the distinction between malum in se and malum prohibita in Chapter 4, but for now, the below chart helps summarize the difference.
Figure 1.2 – Chart comparing malum in se offenses and malum prohibita offenses.
1.03: Criminal Law and Criminal Procedure
This book focuses on substantive criminal law, but it occasionally touches on issues of criminal procedure, so it is important to differentiate between the two. Whereas criminal law focuses on the community, criminal procedure focuses on the government.
Criminal law generally defines the rights and obligations of individuals in society. Some common issues in criminal law are the elements of specific crimes and the elements of various criminal defenses. Criminal law proscribes a citizen’s conduct within the community – that is, criminal law regulates (limits) our conduct within society. Criminal law tells us what we cannot do; it does not tell us what we should do.
Criminal procedure generally concerns the enforcement of individuals’ rights during the criminal process. Criminal procedure generally addresses the rights of the accused and the process involved in the investigation of crime, detention of individuals suspected of a crime, prosecution of criminal offenses, and the imposition of punishments. Criminal procedure regulates the authority of the government as it seeks to deprive its citizens of liberty. Examples of procedural issues are individuals’ rights during police investigation (Miranda), arrest, filing of charges, trial, and appeal.
Example of Substantive Criminal Law Issues
Clara and Linda go on a shopping spree. Linda insists that they browse an expensive department store. Moments after they enter the lingerie department, Linda surreptitiously places a bra in her purse. Clara watches, horrified, but does not say anything even though a security guard is standing nearby. This example illustrates two issues of criminal law: (1) Which crime did Linda commit when she put the bra in her purse? (2) Did Clara commit a crime when she failed to alert the security guard to Linda’s action? You learn the answers to these issues later in this textbook.
Example of Criminal Procedure Issues
Assume that Linda and Clara attempt to leave the store and an alarm is activated. Linda begins sprinting down the street. Colin, a police officer, just happens to be driving by with the window of his patrol car open. He hears the store alarm, sees Linda running, and begins shooting at Linda from the car. Linda is shot in the leg and collapses. Linda is treated at the hospital for her injury, and when she is released, Colin arrests her and transports her to the police station. He brings her to an isolated room and leaves her there alone. Twelve hours later, he reenters the room and begins questioning Linda. Linda immediately requests an attorney. Colin ignores this request and continues to question Linda about the reason the department store alarm went off. Whether Colin properly arrested and interrogated Linda are criminal procedure issues (the answers to which are beyond the scope of this book). However, this example illustrates one criminal law issue: did Colin commit a crime when he shot Linda in the leg in an effort to effectuate the arrest?
Figure 1.3 – Criminal Law and Criminal Procedure | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/01%3A_Introduction_and_Overview_to_Criminal_Law/1.02%3A_Not_All_Crimes_are_Immoral_Not_All_Moral_Wrongs_are_Crimes.txt |
Law can be classified in a variety of ways. One of the most general classifications divides law into civil and criminal.[1] Civil law deals with private wrongs that are generally, but not always, redressed through monetary damages, for example, a lawsuit seeking damages after an automobile collision, family law, contracts, or wills. As this definition indicates, civil law is generally between individuals, not the government. If individuals need to resolve a civil dispute, this is called civil litigation, or a civil lawsuit. When the type of civil litigation involves an injury, the injury action is called a tort. Criminal law involves the punishment of individual wrongdoing.
Characteristics of Civil Litigation
It is important to distinguish between civil litigation and criminal prosecution. Civil and criminal cases share the same courts, but they have very different goals, purposes, and results. Sometimes, one set of facts gives way to a civil lawsuit and a criminal prosecution. This does not violate double jeopardy (the Fifth Amendment protection against multiple punishments for the same offense) and is not uncommon.
Parties in Civil Litigation
In civil litigation, an injured party sues to receive a court-ordered remedy, such as money, property, or some sort of performance. Anyone who is injured—an individual, corporation, or other business entity—can sue civilly. In a civil litigation matter, the injured party that is suing is called the plaintiff. A plaintiff must hire and pay for an attorney or represent themselves. While the term plaintiff is normally associated with civil litigation, in a criminal prosecution, the government may also be referred to as the plaintiff. Plaintiff simply refers to the person or entity initiating the lawsuit. The person or entity being sued is called the defendant. The defendant can be any person or thing that has caused harm, including an individual, corporation, or other business entity. A defendant in civil litigation matter must hire an attorney or represent themselves. The right to indigent counsel does not apply in civil litigation, so a defendant in civil litigation who cannot afford an attorney must represent themselves. There are significant rules, exceptions, and exclusions to civil law and related litigation. Although there can be some overlap in certain circumstances, civil law is beyond the scope of this book.
Characteristics of a Criminal Prosecution
A criminal prosecution takes place when the government has probable cause to believe a defendant has violated a federal or state criminal statute, or in some jurisdictions, when prosecuting authority has probable cause to believe that a defendant committed a common-law crime, a tribal law violation, or a local ordinance. Statutes and common-law crimes are discussed in Chapter Two, “Sources of Law”. Probable cause is the bare minimum quantum of proof necessary to initiate a criminal prosecution. It is unethical for a prosecutor to file criminal charges against a defendant unless the prosecutor has probable cause to believe the defendant has committed the crime. See Alaska Rules of Professional Conduct 3.8(a) (2021). The different burdens of proof are discussed in more detail in the next section.
Parties in a Criminal Prosecution
The government initiates all criminal prosecutions. A private citizen does not have a right to bring a private criminal prosecution. See Cooper v. District Court, 133 P.3d 692, 697-700 (Alaska App. 2006). If the defendant commits a federal crime, the United States of America pursues criminal prosecution. If the defendant commits a state crime, the state government, often called the State pursues the criminal prosecution. If the defendant is accused of violating a local ordinance, the local political subdivision (e.g., county, municipality, borough, etc.) initiates the prosecution. The suspect charged with a crime is called the defendant and can be an individual, corporation, or other business entity.
The attorney who represents the government controls the criminal prosecution. In a federal criminal prosecution, this is the United States Attorney. The United States Attorney is appointed by the President of the United States and subject to Senate confirmation. In a state criminal prosecution, this is generally a state prosecutor or a district attorney. In most jurisdictions, the prosecutor works for an elected official who represents the county where the defendant allegedly committed the crime. In Alaska, all district attorneys are appointed by, and work for, the Alaska Attorney General. The Alaska Attorney General is not elected to office but instead appointed by the Governor of Alaska and is subject to confirmation by the Alaska Legislature. Thus, Alaska models the federal system of appointed prosecutors. Further, unlike most states, Alaska state prosecutors have exclusive felony jurisdiction. While several Alaska communities have municipal prosecutors who prosecute violations of city ordinances, only a representative of the Alaska Attorney General may prosecute a felony offense.
Applicability of the Constitution in a Criminal Prosecution
All criminal defendants are protected by several specific provisions of both the federal and Alaska constitutions, most of which implicate criminal procedure, not substantive criminal law. For example, a criminal defendant has the right to remain silent, the right to due process of law, the right to be free from double jeopardy, in addition to several others. A complete list of the rights guaranteed by either constitution is beyond the scope of this book, but it is important to understand that these constitutional protections dramatically impact criminal prosecutions. Although a civil litigant has some constitutional protections, they do not cover the same breadth of protection.
For example, the Sixth Amendment of the U.S. Constitution guarantees a criminal defendant “the assistance of counsel.” This guarantee has been interpreted to mean that all criminal defendants, regardless of wealth, are entitled to be represented by an attorney. If a criminal defendant is facing incarceration, the government must provide the defendant with a court-appointed attorney if the defendant is unable to afford one. See Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963). Generally, attorneys provided by the government are called public defenders (18 U.S.C., 2010; AS 18.85.010 et. seq.). Although criminal defendants are entitled to hire their own private attorney, the government is constitutionally required to appoint one to indigent defendants if the accused faces jail. See e.g., Alabama v. Shelton, 535 U.S. 654, 661-62 (2001). This is a significant difference from a civil litigation matter, where both the plaintiff and the defendant must hire their own private attorneys or represent themselves.
Purpose of a Criminal Prosecution
Another substantial difference between civil litigation and criminal prosecution is their respective purposes. One of the central purposes of civil litigation is to compensate the plaintiff for injuries. In contrast, the purpose of a criminal prosecution is to hold the accused accountable for his or her criminal conduct. Although both seek to achieve justice – the former seeks private justice, while the latter seeks public justice. The goals of criminal prosecution are explicitly outlined in the Alaska Constitution.
Article 1, section 12 of the Alaska Constitution states, “[The Criminal Justice System] shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of the victims of crime, restitution from the offender, and the principles of reformation.” These goals form the rationale for criminal punishment, which will be discussed shortly.
Notice that injury and a victim are not necessary components of a criminal prosecution because punishment is objective; the victim is frequently society in general. Thus, behavior can be criminal even if it is essentially harmless. Society may criminalize conduct even if it does not result in a tangible loss. We will explore this phenomenon in subsequent chapters.
Examples of Victimless and Harmless Crimes
Steven is angry because his friend Bob broke his skateboard. Steven gets his gun, puts a silencer on it, and drives to Bob’s house. While Steven is driving, he exceeds the speed limit on three different occasions. Steven arrives at Bob’s house and hides in the bushes by the mailbox and waits. After a short while, Bob opens the front door and walks to the mailbox. Bob gets his mail, turns around, and begins walking back to the house. From the shadows of the bushes, Steven shoots at Bob three different times. Each time he misses and the bullets land harmlessly in the dirt. Bob is oblivious to the entire situation. He does not hear the shots because of the silencer.
In this example, Steven has committed several crimes: (1) If Steven does not have a special permit to own a silencer for his gun, he has committed third-degree weapons misconduct (a felony); (2) Steven committed a violation (called an infraction) each time he exceeded the speed limit; (3) Each time Steven shot at Bob he committed the crime of attempted murder. Notice that for all three crimes Steven did not commit any discernible harm, and in fact, the first two did not have an individual victim. Common sense, however, tells us that Steven should be held accountable (punished) for his actions.
Table 1.1 – Comparison of Criminal Prosecution and Civil Litigation
Feature Criminal Prosecution Civil Litigation
Initiator of lawsuit Government Plaintiff
Attorney for the initiator Prosecutor Private attorney
Attorney for the defendant Private attorney or public defender Private attorney
Constitutional protections Yes Few
Law and Ethics: The O. J. Simpson Case
Two Different Trials—Two Different Results
O. J. Simpson was prosecuted criminally and sued civilly for the murder and wrongful death of victims Ron Goldman and his ex-wife, Nicole Brown Simpson. In the criminal prosecution, which came first, the US Constitution provided O. J. Simpson with the right to a fair trial (due process) and the right to remain silent (privilege against self-incrimination). In addition, the prosecution had the burden of proving him guilty beyond a reasonable doubt. O. J. Simpson did not have to testify. O. J. Simpson was acquitted, or found not guilty (which is not the same as innocent), in the criminal trial (Linder, D., 2010).
In the subsequent civil lawsuit, the plaintiffs had the burden of proving liability by a preponderance of the evidence, which is 51–49 percent, and O. J. Simpson was compelled to testify. O. J. Simpson was found liable in the civil lawsuit. The jury awarded \$8.5 million in compensatory damages to Fred Goldman (Ron Goldman’s father) and his ex-wife Sharon Rufo. A few days later, the jury awarded punitive damages of \$25 million to be shared between Nicole Brown Simpson’s children and Fred Goldman (Jones, T. L., 2010).
1. Explain the difference between “not guilty” and “innocent.”
2. Do you think it is ethical to give criminal defendants more legal protection than civil defendants? Why or why not?
3. Why do you think the criminal trial of O. J. Simpson took place before the civil trial?
Check your answers to these questions using the answer key at the end of the chapter.
1. A third classification exists—administrative law, which deals with the enforcement of government regulations, for example, those governing social security, the environment, and mining, to name only three of the multitude of areas in which governments have promulgated regulations. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/01%3A_Introduction_and_Overview_to_Criminal_Law/1.04%3A_The_Difference_between_Civil_and_Criminal_Law.txt |
One significant difference between civil litigation and criminal prosecution is the burden of proof necessary to hold the defendant responsible for his or her conduct. A failure to meet the burden of proof means that the plaintiff or prosecutor loses their case. In this section, you learn the burden of proof for the plaintiff, prosecution, and defendant. We will also explore different types of evidence and evidentiary rules that can change the outcome of a trial.
Definition of the Burden of Proof
The burden of proof is a party’s responsibility to prove a disputed charge, allegation, or defense. The burden of proof has two components: the burden of production and the burden of persuasion. The burden of production is the obligation to present evidence to the judge or jury. The burden of persuasion is the duty to convince the trier of fact, the judge or jury, to a certain standard, such as beyond a “reasonable doubt.” This standard is simply a measuring point and is determined by examining the quantity and quality of the evidence presented. “Meeting the burden of proof” means that a party has introduced enough compelling evidence to satisfy the standard defined in the burden of persuasion.
The plaintiff or prosecutor generally has the burden of proving the case, which means they must prove each essential element of a crime. Under some circumstances, the defendant may have the burden of proving the existence of a defense. The trier of fact determines whether a party met the burden of proof at trial. The trier of fact would be a judge in a nonjury or bench trial. In a criminal case, the trier of fact is almost always a jury because of the right to a jury trial in the Sixth Amendment. Jurors are not legal experts, so the judge must explain the burden of proof through jury instructions.
Burden of Proof in a Civil Case
In most civil lawsuits, a plaintiff must prove the defendant committed the alleged act by a preponderance of the evidence. A preponderance of evidence simply means something is more likely true than not true. See Alaska Civil Pattern Jury Instruction 02.04. The law refers to something is more likely true than not true if the jury believes that “there is a greater than 50 percent chance that it is true.” Thus, if the jury believes that something is 51% likely, then the jury is entitled to find in favor of the plaintiff. A preponderance of evidence is a fairly low standard, but the plaintiff must still produce more and better evidence than the defense. If the plaintiff offers evidence of questionable quality, the judge or jury can find that the burden of proof is not met and the plaintiff loses the case.
The defendant’s burden of proof when proving a defense in a civil case is also a preponderance of evidence. For example, in the O. J. Simpson civil case discussed in the previous section, O. J. Simpson failed to meet the burden of proving the defense of alibi. The defendant does not always have to prove a defense in a civil case. If the plaintiff does not meet the burden of proof, the defendant is victorious without having to present any evidence at all.
Burden of Proof in a Criminal Prosecution
Criminal prosecution requires a much higher burden of proof. In a criminal trial, the government must prove each essential element beyond a reasonable doubt. It is impossible to put a mathematical equation on this phrase. What constitutes proof beyond a reasonable doubt is evidence that is sufficiently trustworthy and overcomes “any reasonable doubt about the defendant’s guilt.” Proof beyond a reasonable doubt is not proof of an absolute certainty. Instead, it is a firm, unwavering belief in the defendant’s guilt. Judges have struggled with the phrase for decades. As Chief Judge Mannheimer of the Alaska Court of Appeals recently stated,
The concept of proof “beyond a reasonable doubt” may be familiar to lawyers and judges, but even lawyers and judges would concede that this phrase is not self-explanatory. Because the phrase “beyond a reasonable doubt” does not have a universally understood meaning, the Alaska committee on criminal pattern jury instructions developed Criminal Pattern Jury Instruction 1.06 to explain this concept to jurors.
Roberts v. State, 394, P.3d 639, 643 (Alaska App. 2017). The current pattern jury instruction provides, in relevant part,
What is a reasonable doubt? It is a doubt in your mind about the defendant’s guilt that arises from the evidence presented, or from a lack of evidence. A reasonable doubt is based on reason and common sense. A defendant must never be found guilty based on mere suspicion, speculation, or guesswork.
What is proof beyond a reasonable doubt? It is the highest level of proof in our legal system. It is not enough that you believe a defendant is probably or likely guilty or even that the evidence shows a strong probability of guilt; the law requires more. Proof beyond a reasonable doubt is proof that overcomes any reasonable doubt about the defendant’s guilt.
The prosecution is not required to prove guilt beyond all possible doubt, for it is rarely possible to prove anything to an absolute certainty. If, after careful and impartial consideration of the evidence and the law, you do not have a reasonable doubt, then you must find the defendant guilty. If, on the other hand, you think the prosecution did not prove every element of the offense charged beyond a reasonable doubt, then you must find the defendant not guilty.
The law uses numerous burdens of proof, depending on the circumstance. For example, a search warrant may only be issued upon a finding of probable cause that evidence of a crime will be found in the place to be searched. A person suspected of a crime may only be searched for weapons if police have reasonable suspicion that the suspect is armed and dangerous. Finally, before the government may terminate parental rights, the government must demonstrate by clear and convincing evidence that the parent is a danger to the child. While we won’t spend a significant amount of time exploring these different burdens, it is important to remember that all criminal defendants are presumed innocent until the government proves the defendant guilty beyond a reasonable doubt. See in re Winship, 397 U.S. 364 (1970). The U.S. Constitution guarantees the presumption of innocence as a central component of due process of law. If even a slight chance exists that the defendant is innocent, the case most likely lacks convincing and credible evidence, and the jury should acquit the defendant.
Figure 1.4 Diagram of the Spectrum of Certainty
Although as a general rule, the burden in a criminal case rests with the prosecution, under some circumstances, the defendant may have the burden when asserting certain criminal defenses. This occurs in two situations. First, when the defendant raises a defense called an affirmative defense, the defendant must prove the defense by a preponderance of the evidence. See e.g., Alaska Statute 11.81.900(b)(2). Second, when a defendant raises a defense, the defendant must meet the burden of production. For example, Alaska describes this circumstance as requiring the defendant to produce “some evidence” of self-defense before arguing that he was justified in using force against another person. this is a very low threshold. Once the defendant meets his burden of production, the prosecution is then required to meet the burden of persuasion by disproving the defense beyond a reasonable doubt. If the prosecution does not meet its burden of proof, the defendant must be acquitted without having to present any evidence at all. Other states have similar rules, although they may require different burdens of proof under their own rules.
Example of a Failure to Meet the Burden of Proof
Ann is on trial for first-degree murder. The only key piece of evidence in Ann’s trial is the murder weapon, which was discovered in Ann’s dresser drawer during a law enforcement search. Before Ann’s trial, the defense makes a motion to suppress the murder weapon evidence because the search warrant in Ann’s case was signed by a judge who was inebriated and mentally incompetent. The defense is successful with this motion, and the judge rules that the murder weapon is inadmissible at trial. The prosecution decides to proceed anyway. If there is no other convincing and credible evidence of Ann’s guilt, Ann does not need to put on a defense in this case. The prosecution will fail to meet the burden of proof and Ann will be acquitted. The jury must begin its deliberations with the presumption that Ann is innocent of the murder charge.
Direct and Circumstantial Evidence
Evidence is information that is used to prove or disprove a disputed fact. This is true in all types of law. The purpose of evidence is to ascertain the truth. To this end, the law uses two primary classifications to describe evidence: direct evidence and circumstantial evidence. Both direct and circumstantial evidence are valid methods of proving a disputed fact. The law does not treat either type of evidence as more powerful than the other.
Direct evidence proves a fact based on personal knowledge or observation. For example, eyewitness testimony is often direct evidence. An eyewitness testifying that he or she saw the defendant commit the crime directly proves that the defendant committed the crime. Common examples of direct evidence are eyewitness testimony, a defendant’s confession, or a video or photograph of the defendant committing the crime. Criminal cases relying on direct evidence are easier to prove because the trier-of-fact generally believes direct evidence is more reliable (i.e., accurate). However, direct evidence can be unreliable and is not necessarily preferable to circumstantial evidence. For example, if an eyewitness is mistaken in their identification, the witness’s testimony lacks the evidentiary value of reliable circumstantial evidence such as DNA evidence.
Circumstantial evidence, conversely, proves a fact through inference and not on personal knowledge or inference. Fingerprint evidence is usually circumstantial. The defendant’s fingerprint at the scene of the crime directly proves that the defendant placed a fingerprint at that location. It indirectly proves that the defendant was present at the scene during the time of the crime. Common examples of circumstantial evidence are fingerprint evidence, DNA evidence, and blood evidence. Criminal cases relying on circumstantial evidence are viewed as more difficult for the prosecution because circumstantial evidence does not directly tie the defendant to the criminal act. However, circumstantial evidence such as DNA evidence can be very powerful and compelling.
Both direct evidence and circumstantial evidence can be true or false – that is, the believability of evidence is not determined by its classification. Both direct and circumstantial evidence are valid methods of proving a disputed fact. The law does not treat either type of evidence as more powerful than the other. It is the trier of fact (e.g., the judge or jury) that interprets and weighs the evidence.
Table 1.2 – Comparison of Circumstantial and Direct Evidence in a Burglary Case
Evidence Circumstantial Direct
Fiber from the defendant’s coat found in a residence that has been burglarized Yes No—directly proves presence at the scene, not that the defendant committed burglary
GPS evidence indicating the defendant drove to the burglarized residence Yes No—same explanation as fiber evidence
Testimony from an eyewitness that she saw the defendant go into the backyard of the burglarized residence Yes No—could prove trespassing because it directly proves presence at the scene, but it does not directly prove burglary
Surveillance camera footage of the defendant purchasing burglar tools Yes No—does not directly prove they were used on the residence
Cell phone video of the defendant burglarizing the residence No Yes—directly proves that the defendant committed the crime
Witness testimony that the defendant confessed to burglarizing the residence No Yes—directly proves that the defendant confessed to the crime
Pawn shop receipt found in the defendant’s pocket for items stolen from the residence Yes No—directly proves that the items were pawned, not stolen | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/01%3A_Introduction_and_Overview_to_Criminal_Law/1.05%3A_The_Burden_of_Proof.txt |
Crimes can be classified in many ways, as determined by individual legislatures. Crimes can be grouped by subject matter. For example, crimes like assault, robbery, or sexual assault tend to injure another person’s body. These crimes tend to be classified as “crimes against the person.” If a crime tends to injure a person by depriving him or her of property or by damaging property, it tends to be classified as a “crime against property.” These classifications are basically for convenience and are not imperative to the study of substantive criminal law. As you will see in subsequent chapters, individual crimes are classified in broad terms for organizational convenience.
More important and substantive is the classification of crimes according to the severity of punishment. This is called grading. Grading is simply another way of describing a crime’s seriousness. Legislatures generally classify crimes into three categories: felonies, misdemeanors, and infractions. Often, the culpable mental state or the type of injury affects a crime’s grading. See Alaska Statute 11.81.250. Mala in se crimes, which are inherently evil, like murder are generally graded higher than malum prohibitum crimes, which are crimes not inherently evil, but rather represent conduct that is deemed socially unacceptable, for example, prostitution, gambling, and drug crimes.
Felonies
Felonies are the most serious crimes. They are either supported by a heinous intent, like the intent to kill, or accompanied by an extremely serious result, such as loss of life, grievous injury, or destruction/loss of property. Felonies are serious, so they are graded the highest, and all sentencing options are available. Depending on the jurisdiction and the crime, the sentence could be capital punishment, prison time, a fine, or alternative sentencing such as probation, community service, or home confinement. Potential consequences of a felony conviction also include the inability to vote, own a firearm, or even participate in certain careers. These are generally referred to as the collateral consequences of a felony conviction.
In Alaska, the state legislature has four classifications of felony crimes: Unclassified, Class A, Class B, and Class C. Each felony offense is classified in one of these groups, which dictates the minimum and maximum sentences available to the sentencing judge. See AS 11.81.250.
Misdemeanors
Misdemeanors are less serious offenses than felonies, either because the intent requirement is less culpable or because the injury or result is less serious. Misdemeanors are usually punishable by jail time of one year or less, a smaller fine, or alternative sentencing like probation, community service, or home confinement. Similar to felonies, in Alaska, there are two classes of misdemeanors: Class A misdemeanors and Class B Misdemeanors. Generally, Class A misdemeanors carry a maximum term of imprisonment of up to 1 year in jail, whereas Class B misdemeanors carry a maximum term of 90 days in jail.
In most states (but not Alaska), incarceration for a misdemeanor is served in jail rather than in prison. The difference between jail and prison is that cities and counties operate jails, whereas the state or federal government operates prisons, depending on the crime. The restrictive nature of the confinement also differs between jail and prison. Jails are for defendants who have committed less serious offenses, so they are generally less restrictive than prisons. In Alaska, the Department of Corrections, an executive-branch agency, operates all prisons and jails within the state. When a convicted person is ordered to a term of incarceration, the person is ordered to the “care and custody” of the Department of Corrections (DOC). It is up to DOC where the person will be housed, not the judge.
Felony-Misdemeanors
Felony-misdemeanors are crimes that the government can prosecute and punish as either a felony or a misdemeanor, depending on the particular circumstances accompanying the offense. The discretion of whether to prosecute the crime as a felony or misdemeanor usually belongs to the prosecutor, who makes the charging decision. For example, if a person commits the crime of driving under the influence, the crime may be charged as a misdemeanor, unless the person has at least two prior DUI convictions. If the person has multiple prior convictions, the prosecutor may choose to charge the person with felony DUI (a class C felony) instead of a misdemeanor. See e.g., AS 28.35.030(n).
Infractions
Infractions, which can also be called violations, are the least serious offenses and include minor offenses such as jaywalking and motor vehicle offenses that result in a simple traffic ticket. Infractions are generally punishable by a fine or alternative sentencing such as traffic school. The law generally does not authorize the imposition of jail as punishment for violations. Infractions are generally not referred to as “crimes,” since jail is not authorized. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/01%3A_Introduction_and_Overview_to_Criminal_Law/1.06%3A_Classification_of_Crimes.txt |
“Laws without enforcement are just good advice.”
Quote often attributed to Abraham Lincoln
The primary purpose of criminal law is punishment. Through the enforcement of criminal law, society seeks to hold offenders accountable for their individual misdeeds, protect society, and change future behavior. Criminal punishment seeks to balance these competing principles: on one hand, the idea of reformation – the offender should be reformed and rehabilitated. On the other hand, society has a vested responsibility to protect the public. These twin goals are constantly in conflict.
Historically theories of punishment have proposed five purposes for criminal sanctions: deterrence, incapacitation, rehabilitation, restitution, and retribution. Taken collectively, these principles highlight the tension of criminal sanctions: to successfully reduce recidivism (that is, reduce the likelihood a particular offender will re-offend) and keep society safe, but also meaningfully reintegrate the offender into society.
Specific and General Deterrence
Deterrence aims to prevent future crime by frightening the defendant or the public. The two types of deterrence are specific and general deterrence. Specific deterrence applies to an individual defendant. When the government punishes an individual defendant, he or she is theoretically less likely to commit another crime because of fear of another similar or worse punishment. General deterrence, on the other hand, applies to the public at large. When the public learns of an individual defendant’s punishment, the public is theoretically less likely to commit a crime because of fear of the punishment the defendant experienced. With general deterrence, the purpose of the sanction is not necessarily to punish the individual defendant, but instead to make an “example” out of the defendant to deter others from committing a similar offense. When the public learns, for instance, that an individual defendant received a life sentence for the crime of murder, this knowledge hopefully inspires a deep fear of criminal prosecution and deters others from committing murder.
Incapacitation
Incapacitation (sometimes referred to as isolation) prevents future crime by removing the defendant from society. Incapacitation is society’s recognition that some offenders cannot be deterred or rehabilitated. The rationale for incapacitation is an acknowledgment that, at least for the time the person is incarcerated, the person will not harm other members of the community. Incapacitation can include incarceration, house arrest, or capital punishment. Capital punishment (the death penalty) is the ultimate form of incapacitation, which is why it is considered the most serious punishment available within criminal law. It cannot be undone. We will explore capital punishment in more detail in subsequent chapters, but to date, the Alaska Legislature has not authorized capital punishment (although it has explored the possibility several times).
Rehabilitation
Rehabilitation seeks to prevent future crime by reforming a defendant’s behavior. Examples of rehabilitation can include educational and vocational programs, treatment center placement, and counseling. The court frequently combines rehabilitation with incarceration or with probation or parole. Offenders must participate in rehabilitative programs in combination with probation, and in addition to, or instead of, incarceration. Alaska Therapeutic Court is an example of a criminal sanction that primarily focuses on rehabilitation. Therapeutic courts can operate as an alternative to traditional incarceration and effectively lower recidivism. To learn more about Alaska Therapeutic Courts see www.courts.alaska.gov/therapeutic.
Restitution
The goal of restitution places the emphasizes repairing the harm caused to the victim. Restitution is meant to make the victim or community “whole.” Restitution can include court orders obligating the criminal defendant to pay the victim for any harm suffered. In this vein, restitution may resemble a civil damages award. Restitution can be for physical injuries, loss of property or money, and rarely, emotional distress (in the form of future counseling costs). It can also be a financial reimbursement to cover some of the costs of the criminal prosecution and punishment.
Retribution
The theory of retribution seeks to prevent future crime by demanding a sanction against the defendant regardless of its rehabilitative impact. When victims or society discover that the defendant has been adequately punished for a crime, they may achieve a certain satisfaction that our criminal justice system is working effectively. Retributive theories seek to enhance society’s overall faith in the criminal justice system by eliminating the desire for personal avengement (in the form of vigilante justice, for example). Retribution seeks to ensure offenders receive a punishment comparable to the seriousness of the underlying crime.
In 1981, the Alaska Supreme Court found that the “use of retribution as a goal of sentencing is inconsistent” with the Alaska Constitution. See Kelly v. State, 622 P.2d 432, 435 (Alaska 1981). Thus, at least in Alaska, a judge may not impose a criminal punishment against a defendant to satisfy society’s need for revenge.
Instead, Alaska recognizes that some criminal punishments are appropriate, not as retribution, but to reflect the community’s condemnation of the behavior and to reaffirm societal norms. Put another way, some circumstances require a substantial punishment (irrespective of how favorable a defendant’s background may be) because the criminal behavior itself represents a serious deviation from societal norms. Punishment is necessary to uphold legal and moral standards.
Keep this distinction in mind as we discuss Alaska’s statutory sentencing criteria next.
Alaska’s Statutory Sentencing Criteria
Once convicted, a defendant faces a criminal sentencing hearing by which the court formally punishes a defendant, normally in the form of incarceration, monetary fines, community supervision, or restitution. Sentencing is an inherently discretionary judicial function, and when imposing a criminal sentence, the sentencing court has tremendous discretion in determining the appropriate sentence.
Alaska, like most states, has codified not only the authorized punishments but also the purposes of criminal punishment to ensure a rational understanding of the imposed criminal sanctions. In the eyes of the law, understanding why punishment is imposed is just as important as understanding what the precise sentence is.
In Alaska, these codified sentencing considerations[1] include:
• The seriousness of the present offense in relation to other offenses
• The defendant’s prior criminal history and the likelihood of rehabilitation
• The need for confinement to prevent harm to the public
• The circumstances of the offense and extent of harm to the victim or danger to public safety or public order
• Deterrence of the offender and others
• Community condemnation and reaffirmation of societal norms
• Restoration of the victim and the community.
These sentencing goals are of constitutional dimension. These principles are included within the Alaska Constitution Declaration of Rights. See Alaska Const. art. I., § 12.
Figure 1.5 Alaska Constitution – Article I, Section 12.
The court is obligated to consider each sentencing factor independently but is free to prioritize factors differently. Notice how these factors highlight a tension between the rights of a criminal defendant and the rights of a crime victim.
The More You Know…
At the time the Alaska Constitution was adopted, Article 1, section 12 read,
Section 12 Excessive Punishment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Penal administration shall be based on the principle of reformation and the need for protecting the public.
In 1994, in an effort to strengthen crime victims’ rights within the criminal justice system, the Alaska Legislature proposed two constitutional amendments, both surrounding victims’ rights. First, the legislature sought to broaden the principles of criminal administration by amending Art. 1, § 12, to include language regarding victims’ rights. See Figure 1.5. Second, the legislature sought the adoption of a new provision that specifically enumerated the rights of crime victims within the criminal justice system. See Art. 1, § 24.
Both constitutional amendments overwhelmingly passed during the 1994 general election (86% for adoption; 14% against adoption). As a result, sentencing courts ought to prioritize the need for protecting the public and the rights of the victims over the defendant’s reformation.
Presumptive Sentencing
General punishment decisions are normally left to the legislative branch. Courts rarely second-guess the legislative decision about how to punish. In Alaska, the legislature has adopted a presumptive sentencing scheme in an effort to eliminate unjustified disparity in criminal punishments and attain reasonable uniformity in criminal sentences. AS 12.55.005. Presumptive sentencing, as the name implies, represents the presumed penalty for a “typical” offender who commits the “typical” offense. As you can imagine, what constitutes a “typical offender” or a “typical offense” is subject to significant debate.
Presumptive sentencing is a sentencing scheme that creates a statutory maximum sentence and then establishes a presumptive prison range within the statutory maximum based on the offender’s criminal history. The presumptive range increases incrementally depending on the offense classification and the offender’s prior felony convictions. Recall that the Alaska Legislature has broken felony crimes into four classifications: Unclassified, Class A, Class B, and Class C. The legislature has established a maximum penalty for each classification. Figure 1.6, below, sets forth a simplified sentencing chart outlining Alaska’s presumptive sentencing scheme. As you can see, an offense being classified as a felony sex offense dramatically increases the applicable sentencing range. AS 12.55.155(i).
Figure 1.6 Alaska Presumptive Sentencing Scheme
Here is an example: let’s assume Sam is convicted of First-Degree Robbery, a Class A felony offense. AS 11.41.500(b). Let’s also assume that Sam has two prior felony convictions. Using the sentencing chart in Figure 1.6, you can see that a Class A non-sex felony offense has a maximum sentence of 20 years. Given that Sam has two prior felony convictions and has been convicted of a Class A felony, he faces a presumptive term of 10 to 14 years. Thus, the sentencing judge’s discretion is constrained by the presumptive sentencing range – the court must impose a term of imprisonment somewhere between 10 and 14 years absent exceptional circumstances.
At sentencing, the judge must impose a definite term of incarceration within the presumptive range unless certain facts – referred to as aggravating and mitigating factors – are established. Sentencing judges may not increase a term of imprisonment above the presumptive range absent an aggravating factor, and likewise, judges may not impose a term of imprisonment below the presumptive range unless a mitigating factor is proven. AS 12.55.155.
Alaska uses a determinate sentencing system, that requires the offender to be placed in the custody of the Alaska Department of Corrections for a definite length of time. If authorized, an offender may be eligible for early release from prison due to mandatory or discretionary parole, both of which are determined post-incarceration by the Alaska Parole Board. Unlike some states, Alaska has not adopted an indeterminate sentencing scheme – that is, a scheme where the sentencing court imposes a sentencing range and the precise term of imprisonment is determined by a separate body, like the parole board, based on its judgment of whether the offender has been rehabilitated or has served an adequate term of imprisonment.
Misdemeanors and unclassified felonies are not subject to presumptive sentencing. Such crimes are generally subject only to a statutory maximum sentence and, if applicable, a statutory mandatory minimum. For these crimes, the sentencing judge may impose any sentence up to the statutory maximum, subject only to any applicable statutory minimum term (or special circumstances) that may apply.
The law treats a “presumptive” sentence much differently than a “mandatory minimum”. A mandatory minimum term is the least possible sentence that can be imposed and represents the legislative’s assessment of how much prison time should be imposed even when the defendant’s background is extremely favorable. A presumptive term, on the other hand, represents the legislature’s judgment as to the appropriate sentence for a typical (average) felony offender (i.e., an offender with a typical background who commits a typical offense).
Take-Away
Criminal laws do not exist in a vacuum, nor do they exist without purpose. Society criminalizes behavior to justify a criminal sanction. Society wants to hold offenders accountable while simultaneously changing future behavior. An in-depth exploration of the various theories of punishment and whether they are effective are beyond the scope of this text. For example, there is good reason to believe that Alaska’s rejection of retribution as a valid sentencing goal is simply a legal fallacy. One central principle of punishment is that sanctions ought to be proportional to the harm caused. Yet, modern retribution theorists argue that society’s over-reliance on notions of deterrence, rehabilitation, and incapacitation is producing much more severe harm than if it simply focused more clearly on “just deserts”. In general, society continues to impose more punitive criminal sentences because it refuses to embrace a deserts theory of punishment, and the concept of proportionality that it assumes. That debate, however, is for a different day.
Likewise, sentencing law is a complex area and its mastery is not attainable based solely on the description contained herein. Even though sentencing is a discretionary function, numerous statutes govern (and limit) individual sentencing decisions. This chapter only highlights its overarching schematic design. As discussed, incarceration is not the only sanction available to a sentencing judge. The court has the authority to impose alternatives, such as monetary fines, community supervision, house arrest, community work service, or asset forfeiture. AS 12.55.015. But a complete discussion of sentencing, incarceration, and possible alternatives are beyond the scope of this text and not essential to a functional understanding of substantive criminal law.
That said, as you explore the various acts that constitute criminal behavior consider several broader questions: why does society punish, what are the natural tensions that exist, and what are the competing roles of the different branches of government in criminal punishments?
1. In practice, the sentencing factors are routinely referred to as the Chaney criteria, which refer to the legal opinion that originally announced the relevant factors a sentencing court may consider when formulating an appropriate punishment. See State v. Chaney, 477 P.2d 441, 443 (Alaska 1970). The Alaska Legislature subsequently codified the sentencing goals (and others) in AS 12.55.005. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/01%3A_Introduction_and_Overview_to_Criminal_Law/1.07%3A_The_Purposes_of_Punishment.txt |
Case law is a significant source of criminal law. We will explore Sources of Law shortly, but for now, remember that when a judge rules on the facts of a particular case, they create case law. Case law is the application of the law to a particular set of facts.
Case Citation
Cases must be published to become case law. A published case is also called a judicial opinion. This textbook exposes you to several judicial opinions to demonstrate how a principle of law is applied to a specific factual scenario. The case citation is the series of numbers and letters after the title of the case and it denotes the case’s published location. For example, let’s analyze the case citation for Ravin v. State, 537 P.2d 494 (Alaska 1975). Ravin v. State is an interesting case from a constitutional law perspective – Ravin holds that Alaska’s explicit right to privacy, as enumerated in the Alaska Constitution, guarantees an adult’s right to possess marijuana in one’s own home. See id., 537 P.2d at 511.
Figure 1.7 Ravin Case Citation
As you can see from the diagram, the number 537 is the volume number of the book that published the Ravin case. The name of the book is “P.2d”, which is an abbreviation for Pacific Reports, 2d Series. The number 494 is the page number of the Ravin case. “Alaska” signifies the case was decided by the Alaska Supreme Court. “Alaska App.” would mean the Alaska Court of Appeals decided the case. The date (1975) is the year the court issued its ruling on the case. Every court has its own designation, except the United States Supreme Court, which is “U.S.” and stands for United States Reports. For example, in the seminal case Gideon v. Wainwright, 372 U.S. 335 (1963), the publication is United States Reports, abbreviated as “U.S.”
Case Briefing
It is useful to condense judicial opinions into a case brief format. The Ravin v. State, 537 P.2d 494 (Alaska 1975) case brief is shown in Figure 1.7.
Figure 1.8 Ravin Case Brief
When briefing a case, your goal is to reduce the information from the case into a format that will provide you with a helpful reference in class and for review. Most importantly, by “briefing” a case, you will grasp the problem the court faced (the issue); the relevant law the court used to solve it (the rule); how the court applied the rule to the facts (the application or “analysis”); and the outcome (the conclusion). You will then be ready to not only discuss the case but to compare and contrast it to other cases involving a similar issue.
The case brief should begin with the title of the case, including the citation. The case name usually contains the names of the plaintiff (in criminal law, the plaintiff is normally the “government”, “state” or “prosecutor”) and the defendant, each of whom are parties to the lawsuit. Be sure that you can identify the applicable stakeholders as you write your brief.
The next component of the case brief should be the facts. Briefly summarize the facts of the case. Eliminate facts that are not relevant to the particular issue and the court’s analysis of it. Do not merely copy the facts verbatim; not every detail is important. Identify the facts important for the resolution of the issue before the court. The issue follows the facts. The issue is the question the court is examining, which is usually the grounds for appeal. The case brief should phrase the issue as a question. Cases usually have more than one issue. The case brief can state all the issues or only the most important issue. The holding (sometimes called the substantive rule of law) comes after the issue, is the actual case law, and answers the issue question. If more than one issue is presented in the case, the substantive holding should address each issue.
Example of Substantive Holding
“Thus we conclude that no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest.”
See Ravin v. State, 537 P.2d 494, 511 (Alaska 1975)
Last, but still vital to the case brief, is the rationale. The rationale discusses the reasoning of the judges when formulating a particular rule. This may be the most important portion of the brief. The court will have examined the facts in light of the rule, and probably considered all “sides” and arguments presented to it. How courts apply the rule to the facts and analyze the case must be understood to properly predict outcomes in future cases involving the same issue. Rationales can set policy, which is not technically case law but still sets precedent in certain instances.
For most of the judicial opinions we explore in this book, we will focus on the majority opinion. The majority opinion is the controlling opinion. Although one judge writes the judicial opinion, to be the lead opinion, it must have received a majority of votes in its favor. Not all cases are unanimous. Occasionally, other judges will want to add to the judicial opinion. If a judge agrees with the judicial opinion’s result, but disagrees with the majority’s rationale, the judge could write a concurring opinion, which explains why the concurring judge agrees with the result, but not the rationale. If a judge disagrees with the result, the judge could write a dissenting opinion explaining why the judge disagrees. With one exception, neither the concurring opinion nor the dissenting opinion are controlling opinions. Neither set precedent. However, a concurring opinion or dissenting opinion may be used as the rationale in a future case to overturn or change the law.
The one exception is when there is no majority of judges who agree on the rule. In that situation, the opinion garnering the most votes is called the plurality opinion, and the substantive holding is the position taken by the judge or judges who concurred in the judgment on the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193 (1977). | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/01%3A_Introduction_and_Overview_to_Criminal_Law/1.08%3A_Case_Method_%28Case_Briefing%29.txt |
Summary
A crime is an action or inaction in violation of criminal law. Criminal laws vary from jurisdiction to jurisdiction.
The study of criminal law defines crimes and defenses to crimes. The study of criminal procedure focuses on the rights of citizens against government intrusion. Criminal procedure generally governs the rights of the accused and is associated with criminal investigation, arrest, interrogation, trial, and appeal.
A civil lawsuit or civil litigation matter resolves a dispute between individuals, called a plaintiff (the injured party) and defendant (the alleged wrongdoer). Every civil litigation matter includes a plaintiff, which has suffered harm. The goal of the civil litigation matter is to compensate the plaintiff for injury. The court can compensate the plaintiff by awarding money, called damages. Generally, parties in civil litigation are not entitled to court-appointed lawyers and must hire private attorneys (or represent themselves).
The government initiates a criminal prosecution and seeks to deprive the accused of his or her liberty. The government is represented by a prosecutor, who has formally accused the defendant (the alleged wrongdoer) of a crime. Some criminal prosecutions do not include a victim, or harm, because the goal of the criminal prosecution is holding the defendant accountable for his or her conduct, not compensation. Every criminal prosecution involves the government, so the US and state constitutions provide the criminal defendant with extra protections not present in a civil lawsuit, such as court-appointed counsel for the indigent.
Crimes can be classified according to the severity of punishment. The most serious crimes are felonies. Misdemeanors are less serious than felonies and have less severe available sentences. Certain conduct can be either a felony or a misdemeanor depending on the circumstances. Infractions, also called violations, are the least serious offenses and generally do not involve incarceration. The purposes of punishing a criminal defendant are both specific and general deterrence, incapacitation, rehabilitation, and restitution.
Each party in a civil or criminal trial must meet a burden of proof, which consists of a burden of producing evidence and a burden of persuading the trier of fact. The burden of proof for a civil case is a preponderance of the evidence, which means that the trier of fact must be convinced that the dispute is more likely true than not. The burden of proof in a criminal case is beyond a reasonable doubt, which is the highest burden of proof our legal system requires. Proof beyond a reasonable double is a nebulous concept, but it is evidence that is of such a compelling nature that rebuts the defendant’s presumption of innocence. The burden of proof for a criminal defense varies. The evidence presented to meet the burden of proof can be circumstantial, which indirectly proves a fact, or direct, which directly proves a fact.
Key Takeaways
• A crime is an act committed in violation of a law prohibiting it or omitted in violation of a law ordering it. In general, the criminal law must be enacted before the crime is committed.
• Criminal law generally defines the rights and obligations of individuals in society. Criminal procedure generally concerns the enforcement of individuals’ rights during the criminal process.
• Civil law regulates the private rights of individuals. Criminal law regulates individuals’ conduct to protect the public.
• Civil litigation is a legal action between individuals to resolve a civil dispute. Criminal prosecution is when the government prosecutes a defendant to punish illegal conduct.
• The burden of proof is a party’s obligation to prove a charge, allegation, or defense.
• The burden of production is the duty to present evidence to the trier of fact. The burden of persuasion is the duty to convince the trier of fact to a certain standard, such as the preponderance of the evidence or beyond a reasonable doubt.
• The civil burden of proof is a preponderance of the evidence, for both the plaintiff and the defendant. The criminal burden of proof for the prosecution is beyond a reasonable doubt.
• The criminal burden of proof for the defense is generally a preponderance of the evidence. States vary on whether they require the criminal defendant to meet both the burden of production and persuasion or just the burden of production. Different defenses also require different burdens of proof.
• In states that require the defendant to meet only the burden of production, the prosecution must disprove the defense depending on the state.
• An inference is a conclusion the trier of fact may make if it chooses to. A presumption is a conclusion the trier of fact must make.
• Circumstantial evidence indirectly proves a fact. A fingerprint at the scene of the crime, for example, indirectly proves that because the defendant was present at the scene, the defendant committed the crime. Direct evidence directly proves a fact. If the defendant confesses to a crime, for example, this is direct evidence that the defendant committed the crime.
• Grading is based on the severity of punishment.
• Felonies are graded the highest. Punishment options for felonies include the following:
• Capital punishment (if authorized by State)
• Prison time
• Momentary Fines
• Alternative sentencing such as probation, rehabilitation, and home confinement
• Misdemeanors are graded lower than felonies. Punishment options for misdemeanors include the following:
• Jail time of one year or less per misdemeanor
• Monetary Fines
• Alternative sentencing such as probation, rehabilitation, and community service
• Felony-misdemeanors are punished as either a felony or a misdemeanor.
• Infractions, also called violations, are graded lower than misdemeanors and have less severe punishment options:
• Monetary Fines
• Alternative sentencing, such as traffic school
• Incarceration not authorized
• Alaska is different than most states when it comes to jails and prisons. In most states, the difference between jail and prison is that cities and counties operate jails, and the state or federal government operates prisons, depending on the crime. In Alaska, all jails and prisons are operated at the state level. The restrictive nature of the confinement is another difference. Jails are for defendants who have committed less serious offenses, so they are generally less restrictive than prisons.
• Specific deterrence prevents crime by frightening an individual defendant with punishment.
• General deterrence prevents crime by frightening other potential defendants with the punishment of an individual defendant.
• Incapacitation prevents crime by removing a defendant from society.
• Rehabilitation seeks to reform a defendant’s behavior to prevent future crime.
• Retribution prevents crime by giving victims or society a feeling of avengement. Retribution is not a valid form of punishment in Alaska.
• Restitution seeks to restore the victim or the community by requiring the defendant to financially repair the damage caused by the criminal behavior.
• The components of a case brief are the following:
• The title, plus citation. The citation indicates where to find the case.
• The substantive facts. The substantive facts discuss what happened to instigate the case.
• The issue. The issue is the question the court is examining.
• The rule or substantive holding. The rule answers the issue question and is the case law.
• The rationale. The rationale is the reason the court held the way it did.
Answer to The Difference Between Civil and Criminal Law – Law and Ethics Question
1. Following a criminal trial, the trial jury may only return one of two verdicts: “guilty” or “not guilty.” When a jury renders a not guilty verdict the jury is publicly stating that the government has failed to meet its burden – proof beyond a reasonable doubt. The technical term of a not guilty verdict is an acquittal. Neither “not guilty” nor “acquittal” is synonymous with “innocent.” While all factually innocent defendants should be acquitted, not all defendants who are acquitted are factually innocent. In some situations, a defendant is acquitted following a jury trial even though there is evidence of guilt (albeit inadmissible evidence). Take for example a case in which the defendant confesses to a crime. If the confession is suppressed as a result of police misconduct (and thereby rendered inadmissible at trial), the defendant may be acquitted, even though the inadmissible evidence suggests that the defendant is factually guilty.
2. The reason criminal defendants get special protection in a criminal prosecution, which is not extended to civil litigation defendants is the harshness of the punishment and the inequality of the criminal prosecution itself. Criminal defendants face the loss of their life and liberty at the hands of the government. The deprivation of one’s liberty is significant. Civil litigation defendants, on the other hand, only risk the loss of money. Criminal defendants, unlike civil defendants, face the intimidating prospect of fighting the government and its vast resources. Civil litigation defendants are squaring off against another individual. As a society, we believe in the Blackstonian principle that there is nothing as unjust as punishing an innocent person. Thus, we afford criminal defendants special protections, not available to a civil litigant.
3. The criminal trial took place first because O.J. Simpson was a criminal defendant and therefore had the benefit of the Fifth and Sixth Amendment rights to self-incrimination and speedy trial, respectively. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/01%3A_Introduction_and_Overview_to_Criminal_Law/1.09%3A_End-of-Chapter_Material.txt |
Law comes from three places, the Constitution, a statute, or a case. Collectively, these categories are commonly referred to as the sources of law.
Constitutional Law
The first source of law is constitutional law. Two constitutions are applicable in every state: the federal or US Constitution, which is in force throughout the United States, and each state’s constitution. The US Constitution created our legal system. The federal constitution is “the supreme Law of the Land.” See U.S. Const. art. VI, § 2. This means that the federal constitution sets the minimum level of constitutional protection. States’ constitutions exist concurrently but are analyzed separately. “State courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.” Arizona v. Evans, 541 U.S. 1, 8 (1995) (citing Michigan v. Long, 463 U.S. 1032 (1983)); see also Lemon v. State, 514 P.2d 1151, 1154 n.5 (Alaska 1973). State courts interpreting their own constitutions are free to offer more constitutional protections, and thus define the ceiling. Alaska frequently does. Alaska case law is replete with examples of the courts finding that the Alaska Constitution provides a heightened level of protection to its citizens – above and beyond what is required by the U.S. Constitution. The Alaska Constitution contains protections not found in the US Constitution, like an explicit right to privacy. This right to privacy protects Alaskan’s personal right to possess small amounts of marijuana within one’s home, a right that does not exist under the US Constitution. See Ravin v. State, 537 P.2d 494 (Alaska 1971).
Another important distinction is to remember that one central purpose of constitutional law is to regulate (or limit) government action. The constitution protects private individuals from their government; the constitution does not protect private individuals from each other. Private individuals need not follow either the federal or state constitutions.
Example of Government and Private Action
Cora stands on a public sidewalk and criticizes President Obama’s healthcare plan. Although other individuals may be annoyed by Cora’s words, the government cannot arrest or criminally prosecute Cora for her speech because the First Amendment of the US Constitution guarantees each individual the right to speak freely. On the other hand, if Cora walks into a Fred Meyer department store and criticizes the owner of Fred Meyer, Fred Meyer could eject Cora immediately. Fred Meyer and its personnel are private actors, not government actors, and as such, they do not have to abide by the Constitution.
Exceptions to the Constitution
The federal and state constitutions are written documents that set forth general guiding principles establishing the government’s relationship with its citizens. Such principles are subject to interpretation and require the balancing of competing interests. For this reason, it is not uncommon that a particular constitution’s protection contains numerous exceptions. For example, we see more exceptions to constitutional protections in public schools and prisons for safety and security reasons. Public schools and prisons can mandate a certain style of dress to ensure safety. Technically, forcing an individual to dress a specific way could violate the right to self-expression, which the First Amendment guarantees. However, if wearing a uniform can lower gang-related conflicts in school and prevent prisoners from successfully escaping, the government can constitutionally regulate self-expression in these locations.
Superiority of the Constitution
Of the three sources of law, constitutional law is considered the highest and cannot be supplanted by either of the other two sources of law. Under principles of federal supremacy, the federal or US Constitution is the preeminent source of law, and state constitutions cannot supersede it. Remember that the federal constitution mandates a floor, but a state can always increase the protections granted to its citizens.
Statutory Law
The second source of law is statutory law. While the Constitution applies to government action, statutes apply to, and regulate, both government and individual or private action. A statute is a written (and published) law that can be enacted in one of two ways. Most statutes are written and voted into law by the legislative branch of government. The US legislative branch is called Congress, and Congress votes federal statutes into law. Every state has a legislative branch as well, called a state legislature, and a state legislature votes state statutes into law. Often, states codify their criminal statutes into a penal code.
State citizens can also vote state statutes into law and repeal laws enacted by the legislature. This is referred to as the initiative and referendum process. AK. Const. art. XI, 1.§ 1. (1959). Although a state legislature adopts most state statutes, citizens voting on an initiative can enact some very important statutes. For example, in 2014 a majority of Alaskans voted to legalize the recreational use of marijuana for adults over the age of 21 years old. See Ballot Measure No. 2 “An Act to tax and regulate the production, sale, and use of marijuana.” (2014). The initiative created the Marijuana Control Board, the taxation structure, and the penalties for violations. The citizen initiative process can be very powerful.
Statutory Law’s Inferiority
Statutory law is subordinate to constitutional law, which means that a statute cannot conflict with or attempt to supersede constitutional provisions. If a conflict exists between constitutional and statutory law, the courts must resolve the conflict. Courts can invalidate unconstitutional statutes under the power of judicial review.
Administrative Laws
Other written and published laws that apply to government and individual action are administrative regulations and municipal ordinances. Regulations and ordinances cannot supersede or conflict with constitutional or statutory law.
Administrative regulations are promulgated by executive-branch agencies, which are governmental agencies designed to regulate specific areas. The executive branch of government (whether federal or state) is responsible for the day-to-day execution, administration, and enforcement of the laws enacted by the legislative branch. In addition to their enforcement powers, executive agencies can also possess a legislative function (rule-making) and judicial (adjudication) functions. The Food and Drug Administration (FDA) is an example of a federal administrative agency. The FDA regulates any food products or drugs produced and marketed in the United States. The Alaska Police Standards Council (APSC) is an example of an Alaskan administrative Agency. Housed within the Department of Public Safety (DPS), the APSC regulates the certification (and de-certification) of Alaska police officers. Numerous executive agencies have administrative law responsibilities.
Ordinances
Ordinances are similar to statutes, except that municipalities, such as cities, counties, or boroughs vote them into law, rather than a state’s legislature or a state’s citizens. Municipalities generally derive their powers from state constitutions, municipal charters, or statutes. Ordinances usually relate to health, safety, or welfare, and violations of them are typically classified as infractions or misdemeanors, rather than felonies. Anchorage’s law prohibiting aggressive panhandling within the city’s limits is an example of a criminal ordinance. AMC § 08.30.160. Aggressive Panhandling is a class B misdemeanor subject to six months of incarceration and a \$2,000 fine. AMC § 08.05.020(H)(2).
Model Penal Code
State criminal laws differ significantly, so in the early 1960s, a group of legal scholars, lawyers, and judges who were members of the American Law Institute drafted a set of suggested criminal statutes called the Model Penal Code. The Model Penal Code intended to provide a standardized set of criminal statutes that all states could adopt, thus simplifying the diversity effect of the United States’ legal system. While the Model Penal Code has not been universally adopted, a majority of the states have incorporated portions of it into their penal codes, and the Model Penal Code survives as a guideline and focal point for discussion when state legislatures modify their criminal statutes. Alaska has adopted portions of the Model Penal Code. A state is free to adopt some, all, or none of the Model Penal Code.
Case Law
The third source of law is case law. When judges rule in a particular case, they apply the law (from the constitution, statutes, prior cases, and the common law) to create case law (precedent).Federal case law comes from federal courts, and state case law comes from state courts. Case law has its origins in English common law, although, in modern times, it is derived from constitutions, statutes, and precedent.
English Common Law
In Old England, before the settlement of the United States, case law was the most prevalent source of law. This was in contrast to countries that followed the Roman Law system, which primarily relied on written codes of conduct enacted by a legislature. Case law in England was mired in tradition and local customs. Societal principles of law and equity were the guidelines when courts issued their rulings. To be consistent, English judges made it a policy to follow previous judicial decisions, thereby creating a uniform system of laws throughout the country for the first time. Case law was named common law because it was common to the entire nation. Common Law, Black’s Law Dictionary (6th ed. 1990).
The English system of jurisprudence made its way to the United States with the original colonists. Initially, the thirteen colonies unanimously adopted common law as the law of the land. All crimes were common law crimes, and cases determined criminal elements, defenses, and punishment schemes. Gradually, after the Revolutionary War, hostility toward England and modern reform led to the erosion of common-law crimes and a movement toward codification. States began replacing common law crimes with written statutes enacted by state legislatures. Oxford professor Sir William Blackstone’s Commentaries on the Law of England, which interpreted and summarized English common law, became an essential reference as the nation began the process of converting common-law principles into written statutes, ordinances, and penal codes. See id.
Limitations on Common-Law Crimes
In modern society, judges cannot create crimes. See United States v. Hudson & Goodwin, 11 U.S. 32 (1812). This violates notions of fairness and the constitutional doctrine of separation of powers. Making up a new crime and punishing the defendant for it does not provide consistency or predictability to our legal system. It also violates the principle of legality, a core concept of American criminal justice embodied in this phrase: “Nullum crimen sine lege, nulla poena sine crimen” (No crime without law, no punishment without crime). Further, it violates basic constitutional protections like ex post facto and due process.
In states that do not allow common law crimes, statutes must define criminal conduct. If no statute exists to criminalize the defendant’s behavior, the defendant cannot be criminally prosecuted, even if the behavior is abhorrent. Alaska law makes this point explicit, “[n]o conduct constitutes an offense unless it is made an offense by [statute or regulation].” AS 11.81.220.
The common law still plays an important role in criminal lawmaking, even though most crimes are now embodied in statutes. Classification of crimes as felonies and misdemeanors is a reflection of English common law. Legislatures often create statutes out of former common law crimes. Judges look to the common law when defining statutory terms, establishing criminal procedure, and creating defenses to crimes. The United States is considered a common law country. Every state except Louisiana, which is based on the French Civil Code, adopts the common law as the law of the state except where a statute provides otherwise.
Example of a Court’s Refusal to Create a Common Law Crime
Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970) is a good example of the importance of codified criminal law. In Keeler, the defendant attacked his pregnant ex-wife, and her baby was thereafter stillborn. The California Supreme Court disallowed a murder charge against Keeler under California Penal Code § 187 because the statute criminalized only the malicious killing of a “human being.” The court reached its decision after examining the common law definition of a human being and determining that the definition did not include a fetus. The court reasoned that it could not create a new crime without violating the due process clause, separation of powers, and California Penal Code § 6, which prohibits the creation of common law crimes. After the Keeler decision, the California Legislature changed Penal Code § 187 to include a fetus, excepting abortion.
Powerful Nature of Case Law
Courts are frequently called upon to interpret constitutional and statutory law, making case law a powerful source of law. A judge can interpret a constitution in a way that adds or creates exceptions to its protections. A judge can also interpret a statute finding it unconstitutional and unenforceable. This is called the power of judicial review. See Marbury v. Madison, 5 U.S. 137 (1803).
As Chief Justice Marshall famously said,
It is emphatically the province and duty of the [Judiciary] to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
… This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
See Marbury, 5 U.S. at 177-78.
Example of Judicial Review
In Texas v. Johnson, 491 U.S. 397 (1989), the US Supreme Court ruled that burning a flag is protected self-expression under the First Amendment to the US Constitution. Thus, the Court reversed the defendant’s conviction under a Texas statute that criminalized the desecration of a venerated object. Johnson not only invalidated a state statute as being inconsistent with the US Constitution but also interpreted the US Constitution by adding flag burning to the First Amendment’s protection of speech.
Figure 2.1 Diagram and Hierarchy of the Sources of Law
Stare Decisis and Precedent
Individual cases are incredibly diverse, so there must be a way to ensure the law’s predictability. Thus, judges adhere to a policy called stare decisis. Stare decisis is derived from English common law and compels judges to follow rulings in previous cases. A previous case is called precedent. Once judges have issued a ruling on a particular case, the public can be assured that the resulting precedent will continue to be followed by other judges. The idea that the law is predictable and certain is the crux of stare decisis. Chief Justice Rehnquist noted,
Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled then it be settled right.”
Payne v. Tennessee, 501 U.S. 808, 827 (1991) (citations omitted).
Although stare decisis is important and will normally be followed, it is not absolute; judges deviate from it to update the law or conform to society’s modern expectations. For example, in Brown v. Board of Education, 347 U.S. 483 (1954), the United States Supreme Court famously overruled the so-called “separate but equal” doctrine announced in Plessy v. Ferguson, 163 U.S. 537 (1896). In fact, some judges believe that stare decisis is merely an interpretative guideline and not a barrier to revision or rejection of prior judicial decisions. See e.g., Gamble v. United States, 587 U.S. ___, ___, 139 S.Ct. 1960, 1984 (2019) (J. Thomas concurring) (“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”).
Rules of Stare Decisis and Use of Precedent
Case law and stare decisis refer to cases that were decided in an appeal following a trial court’s ruling in the case. A trial court generally resolves the factual disputes in a case (often it is a jury that does this in a trial) and then applies the applicable law to those facts. In contrast, an appellate court generally reviews the legal rulings made by the trial court; an appellate court does not resolve factual disputes. There is often more than one level of appeal, so some appeals come from higher courts than others.
Many complex rules govern the use of precedent. Lawyers primarily use precedent in their arguments, rather than statutes or the Constitution, because precedent is much more specific. With proper research, lawyers can usually find precedent that matches or comes very close to matching the facts of any particular case. In the most general sense, judges tend to follow recent precedent, from a high court, and from the same court system, either federal or state.
Example of Stare Decisis and Use of Precedent
Donald is a defense attorney for Conrad, who is on trial for second-degree burglary. The burglary prosecution is taking place in Anchorage. To be guilty of second-degree burglary, a person must burgle a “building.” Conrad is accused of entering a metal shed behind an automotive repair shop and stealing car parts. Donald finds precedent from an Oregon Court of Appeals case, dated 1979, indicating that a railway boxcar is not a “building,” and thus, Conrad should not be prosecuted. Paul, the prosecuting attorney, finds case precedent from the Alaska Court of Appeals, dated 2017, indicating that a woodshed located in a person’s yard constitutes a “building” for Alaska’s burglary statute. The trial court will probably follow the precedent submitted by Paul because it is more recent, from a higher court, and from the same court system as the trial. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/02%3A_The_Legal_System_in_the_United_States/2.01%3A_Sources_of_Law.txt |
The United States’ system of government is called federalism. Federalism, as outlined in the US Constitution, divides governmental power between the federal government and each of the individualstates. This prevents a concentrated source of governmental power in one individual or small group of individuals. Because of federalism, the United States has a divided sovereign – that is, one federal legal system, and several individual state legal systems. Put another way, in the United States, a plethora of legal systems all operate semi-harmoniously at the same time. Although governmental disputes arise, federalism provides a framework in which such disputes are resolved amicably.
The Scope of Federal Law
The government’s power to regulate comes from the US Constitution. The federal government derives its authority to create law from Article I, § 8, which discusses Congress’s exclusive or delegated powers. These include the power to regulate currency and coin, establish a post office, promote science and art by regulating the rights to discoveries and writings (e.g., patents and copyrights), declare war and raise armies, conduct foreign affairs, regulate interstate and foreign commerce, and make laws necessary and proper to execute other powers expressly granted in the Constitution. Courts have interpreted the last two powers mentioned in the Commerce Clause and the Necessary and Proper Clause to be the broadest sources of federal regulatory authority.
To simplify and summarize precedent defining federal regulatory authority, federal laws are meant to regulate two general areas. First, federal laws regulate issues that concern the entire country, rather than just one city, county, or state. The federal government exclusively regulates in the area of foreign affairs, for example, because this affects the United States of America, not just one particular region. Second, federal laws regulate interstate commerce, which is economic activity, that crosses from state to state. Some common examples are television broadcasts, the Internet, and any form of transportation.
Federal Criminal Laws
The original intent was for the federal government to be a limited government, with the bulk of regulatory authority residing in the states. The only crimes Congress is specifically authorized to punish are piracies and felonies on the high seas, counterfeiting, and treason; however, Supreme Court precedent has expanded the federal government’s power to enact criminal laws based on the commerce clause and the necessary and proper clause See e.g., Gonzales v. Raich, 545 U.S. 1, 9 (2005); McCulloch v. Maryland, 17 U.S. 316 (1918). Still, there must be some connection to an issue of national character and interstate commerce, or the federal government will overstep its authority. In general, federal criminal laws target conduct that occurs on federal property or conduct involving federal employees, currency, coin, treason, national security, rights secured by the Constitution, or commerce that crosses state lines. Currently, over five hundred crimes are listed in Part I, Title 18 of the United States Code, which codifies criminal laws for the federal government. To be fair, much debate surrounds the argument that Congress has exceeded its authority in passing the majority of the U.S. criminal code, and ‘typical’ criminal offenses that should be left to the States’ general criminal jurisdiction. Gamble v. United States, _ U.S. _, 139 S. Ct. 1960, 1980 n.1 (2020) (Thomas, J., concurring). But for now the law is clear: Congress has the power to regulate criminal behavior that impacts interstate markets.
Figure 2.2 Diagram of Federal Laws
The Scope of State Law
The US Constitution designates the states as the primary regulatory authority. This is clarified in the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or the people.” State laws are also supposed to regulate two areas. First, state laws regulate issues of a local character or concern. A state may regulate, for example, its water ownership and use because water can be scarce and is not generally provided to other states. Second, state laws regulate issues or things that remain within a state’s border. A state generally regulates, for example, the operation of a small business whose products are only sold locally and not shipped out of the state.
Federal laws are the same in every state, but state laws differ from state to state. Something legal in one state may be illegal in another state. This inconsistency makes our system of federalism complicated for students (and lawyers). However, the nation’s founding fathers believed that with a country as large and varied as the United States, it was sensible to allow each state to choose for itself which laws will be most suitable.
State Criminal Laws
The power to enact criminal laws belongs almost exclusively to the states. This is because of the Tenth Amendment, which vests in states a police power to provide for the health, safety, and welfare of state citizens. Approximately 90 percent of all criminal laws are state, rather than federal. Often, federal crimes are also state crimes and can be prosecuted and punished by both the state and federal governments without violating the principle of double jeopardy.
Figure 2.3 Diagram of Federalism and Shared Powers
Example of the Diversity of State Laws
In Nevada, prostitution is legal under certain circumstances. Nev. Rev. Stat. §201.354 (2019). An individual who engages in prostitution inside a licensed “house of prostitution” in Nevada is not exposed to criminal liability. However, if the same individual engages in prostitution in Alaska, he or she may be subject to criminal prosecution. AS 11.66.100.
Federal Supremacy
Our legal system is divided between the federal and state governments to conform to the principle of federalism, so potential exists for conflict between federal law and state law. For example, a federal law may make something illegal; a state law may insist that it is legal. Consider the recreational use of marijuana in Alaska: under federal law, selling marijuana is a felony offense; in Alaska, a regulated dispensary may sell marijuana to an adult. Compare 21 USC 841(a) and AS 17.38.010. Whenever a conflict occurs between federal and state law, courts must follow federal law. This is called federal supremacy. Article VI of the federal Constitution states, “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This is referred to as the Supremacy Clause.
Figure 2.3 Diagram of State Laws | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/02%3A_The_Legal_System_in_the_United_States/2.02%3A_Federalism.txt |
The federal Constitution was written to ensure that government power is distributed and never concentrated in one or more areas. This philosophy is served by federalism, where the federal government shares power with the states. It is also further served by dividing the government into three branches, each responsible for different government duties and all providing a check and balance on each other. The three branches of government are detailed in Articles I, II, and III of the federal Constitution. The legislative branch, the executive branch, and the judicial branch are co-equal, and each can only exercise those powers granted to it in the constitution. This is called the separation of powers doctrine. While the federal Constitution identifies only the federal branches of government, the principle of checks and balances applies to the states as well. Most states identify the three state branches of government in their state constitution.
Each branch of government has a distinct authority. When one branch encroaches on the duties of another, it violates the separation of powers doctrine. The courts decide whether a particular government branch has overstepped its boundaries because courts interpret the Constitution, which describes each branch’s sphere of influence. Thus the judicial branch, which consists of all the courts, retains the balance of power.
The Legislative Branch
Article I of the US Constitution establishes the federal legislative branch. The legislative branch is responsible for creating statutory laws. Although citizens of a state can vote for some state statutes by ballot (e.g., initiative), the federal legislative branch enacts all federal statutes; there is no federal initiative or referendum power. In the federal government, Congress is the legislative branch. The Alaska State Legislature is Alaska’s legislative branch. Both Congress and the Alaska State Legislature are bicameral, which means they each have two houses. In Congress, this system provides equal representation among the several states and by citizens of the United States. States are represented by the Senate. Every state, no matter how large or small, gets two senators. Citizens are represented by the House of Representatives. Membership in the House of Representatives is based on population. A heavily populated state, like California, has more representatives than a sparsely populated state, like Alaska.
Alaska, like most state legislatures, has a similar structure to the federal system.
Figure 2.4 Diagram of the Legislative Branch
Legislative Branch Checks and Balances
The legislative branch provides both a check and balance to the executive branch and the judicial branch. For example, the legislative branch can impeach the chief executive officer of the executive branch (i.e., the President of the United States or the state Governor) and judges. This is the first step toward removing the chief executive officer from office. As we have seen in recent times, although one house (e.g., the House of Representatives) can pass Articles of Impeachment, it is up to the other house (e.g., the Senate) to convict and order removal. Congress can also enact statutes that supersede judicial opinions, provided the judicial opinion is not based on the interpretation of the constitution. Congress can also create and abolish courts other than the Supreme Court.
The Executive Branch
The executive branch is responsible for enforcing the statutes enacted by the legislative branch. In the federal government, the executive branch is headed by the president of the United States. States’ executive branches are headed by the governor of the state.
Figure 2.5 Diagram of the Executive Branch
Executive Branch Checks and Balances
The executive branch provides both a check and balance to both the legislative branch and the judicial branch. The chief executive officer (i.e., the President of the United States or the state Governor) can veto statutes proposed by the legislative branch. The Chief Executive also has the authority to nominate or appoint justices and judges to the bench. Under the federal system, the president of the United States nominates judges, who must then be confirmed by the Senate. In Alaska, state court justices and judges are nominated by the Alaska Judicial Council and appointed by the Governor. Alaska state court judges serve a specified term before sitting for a retention election.
The judicial branch is responsible for interpreting all laws, including statutes, codes, ordinances, and the federal and state constitutions. This power is very broad and is the basis for judicial review, referenced earlier in this chapter. It allows the judicial branch to invalidate any law that contravenes the constitution. Judicial review necessary includes the ability to interpret the words and phrases contained within federal and state constitutions. When a court interprets the constitution, it is explaining the meaning of its words and phrases. It is important to recognize that legal interpretation acts independently of public opinion. The court interprets the constitution regardless of whether there is national or state consensus on an issue.
The federal judicial branch is headed by the US Supreme Court. Each state’s judicial branch is headed by the highest-level state appellate court. The Alaska judicial branch is headed by the Alaska Supreme Court. Members of the judicial branch include all judges and justices of every federal and state court in the court system.
Figure 2.6 Diagram of the Judicial Branch
Judicial Branch Checks and Balances
The judicial branch provides both a check and balance to both the legislative branch and the executive branch. The US Supreme Court can invalidate statutes enacted by Congress if they conflict with the Constitution. The US Supreme Court can also prevent the president from taking action if that action violates separation of powers. The state courts can likewise nullify unconstitutional statutes passed by the state legislature and void other executive branch actions that are unconstitutional. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/02%3A_The_Legal_System_in_the_United_States/2.03%3A_The_Branches_of_Government.txt |
Every state has two court systems: the federal court system, which is the same in all fifty states, and the state court system, which varies slightly in each state. Federal courts are fewer in number than state courts. Because of the Tenth Amendment, discussed earlier, most laws are state laws and therefore most legal disputes go through the state court system.
Federal courts are exclusive; they adjudicate only federal matters. This means that a case can go through the federal court system only if it is based on a federal statute or the federal Constitution. One exception is called diversity of citizenship. See 28 U.S.C. § 1332. If citizens from different states are involved in a civil lawsuit and the amount in controversy exceeds \$75,000, the lawsuit can take place in federal court. All federal criminal prosecutions take place in federal courts.
State courts are nonexclusive; they can adjudicate state or federal matters. Thus an individual who wants to sue civilly for a federal matter has the option of proceeding in state or federal court. In addition, someone involved in a lawsuit based on a federal statute or the federal Constitution can remove a lawsuit filed in state court to federal court. See 28 U.S.C. § 1441. All state criminal prosecutions take place in state courts.
Jurisdiction
Determining which court is appropriate for a particular lawsuit depends on the concept of jurisdiction. Jurisdiction has two meanings. A court’s jurisdiction is the power or authority to hear and decide the case. If a court does not have jurisdiction, it cannot hear the case. Jurisdiction can also be a geographic area over which the court’s authority extends.
There are two prominent types of court jurisdiction. Original jurisdiction means that the court has the power to hear a trial. Usually, only one opportunity exists for a trial, although some actions result in both a criminal and a civil trial. During the trial, evidence is presented to a trier of fact, which can be either a judge or a jury. The trier of fact determines the facts of a dispute and decides which party prevails at trial by applying the law to those facts.
Once the trial has concluded, the next step is an appeal. During an appeal, no evidence is presented; the appellate court simply reviews what took place at trial and determines whether or not any major errors occurred. The power to hear an appeal is called appellate jurisdiction. Courts that have appellate jurisdiction review the trial record for error. The trial record includes a court reporter’s transcript, which is typed notes of the words spoken during the trial and pretrial hearings. In general, with exceptions, appellate courts cannot review a trial record until the trial has ended with a final judgment. Once the appellate court has made its review, it has the ability to take three actions. If it finds no compelling or prejudicial errors, it can affirm the judgment of the trial court, which means that the judgment remains the same. If it finds a significant error, it can reverse the judgment of the trial court, which means that the judgment becomes the opposite (the winner loses, the loser wins). It can also remand, which means sending the case back to the trial court, with instructions. After remand, the trial court can take action that the appellate court cannot, such as adjusting a sentence or ordering a new trial.
Some courts have only original jurisdiction, but most courts have a little of both original and appellate jurisdiction. The US Supreme Court, for example, is primarily an appellate court with appellate jurisdiction. However, it also has original jurisdiction in some cases, as stated in the Constitution, Article III, § 2, clause 2: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction.”
Example of Original and Appellate Jurisdiction
Don is prosecuted for the attempted murder of Victoria. Don is represented by public defender Sam. At Don’s trial, despite Sam’s objections, the judge rules that Don’s polygraph examination results are admissible, but prohibits the admission of certain witness testimony. Don is found guilty and appeals, based on the judge’s evidentiary rulings. While Sam is writing the appellate brief, he discovers a 2019 Alaska Supreme Court case that bars the admission of polygraph examination results. Sam can include the case precedent in his appellate brief. The appellate court has the jurisdiction to hold that the objection was improperly overruled by the trial court, but is limited to reviewing the trial record for error. The appellate court lacks the jurisdiction to admit new evidence not included in the trial record.
The Federal Courts
For the purpose of this book, the focus is the federal trial court and the intermediate and highest level appellate courts because these courts are most frequently encountered in a criminal prosecution. Other federal specialty courts do exist but are not discussed, such as bankruptcy court, tax court, and the court of military appeals.
The federal trial court is called the United States District Court. Large states like California have more than one district court, while smaller states may have only one. Alaska has one district: The District of Alaska. District courts hear all the federal trials, including civil and criminal trials. As stated previously, a dispute that involves only state law, or a state criminal trial, cannot proceed in federal district court. The exception to this rule is the diversity of citizenship exception for civil lawsuits.
After a trial in district court, the loser gets one appeal of right. This means that the intermediate appellate federal court must hear an appeal of the district court trial if there are sufficient grounds. The intermediate appellate court in the federal system is the United States Court of Appeals. Only thirteen US Courts of Appeals exist for all fifty states. The US Courts of Appeals are spread out over thirteen judicial circuits and are also referred to as Circuit Courts. Alaska is in the Ninth Circuit.
Figure 2.7 – Geographic Boundaries of the United States Courts of Appeals
Circuit Courts have appellate jurisdiction and can review the district court criminal and civil trials for error. The Circuit Court reviews only trials that are federal in nature, except for civil lawsuits brought to the district court under diversity of citizenship. Also, in general, only a defendant found guilty may appeal a verdict; the government may not appeal an acquittal (also called a “not-guilty” verdict), as this would violate a defendant’s double jeopardy protection.
After a Circuit Court appeal, the loser has one more opportunity to appeal to the highest-level federal appellate court, which is the United States Supreme Court. The US Supreme Court is the highest court in the country and is located in Washington, DC, the nation’s capital. The US Supreme Court has eight associate justices and one chief justice.
The US Supreme Court is a discretionary court, meaning it does not have to hear appeals. Unlike the Circuit Courts, the US Supreme Court can pick and choose which appeals it wants to review. The method of applying for review with the US Supreme Court is called a petition for a writ of certiorari.
The loser in any case from a Circuit Court, or a case with a federal matter at issue from a state’s highest-level appellate court, can petition for a writ of certiorari. If the writ is granted, the US Supreme Court reviews the case. If the writ is denied, which it is the majority of the time, the ruling of the Circuit Court or state high court is the final ruling. For this reason, the US Supreme Court reverses many cases that are accepted for review. If the US Supreme Court wants to “affirm” the intermediate appellate court ruling, all it has to do is deny the petition and let the lower court ruling stand.
The State Courts
For the purpose of this section, the Alaska state court system is reviewed. Slight variations in this system may occur from state to state.
In Alaska, most criminal matters begin in the Alaska District Court, which is a court of limited jurisdiction. Alaska District Court has jurisdiction to hear misdemeanor criminal offenses and hold first appearances and preliminary hearings in felony cases. A preliminary hearing is a procedure where the prosecutor must establish that there is probable cause to warrant charging a person with a felony. A preliminary hearing occurs in open court before a judge. The accused is present, and the witnesses are subject to cross-examination. A preliminary hearing is different than a grand jury. Alaska District Court cannot adjudicate felony criminal matters or family court matters such as granting a petition for divorce. It also may not hear civil claims that exceed \$100,000 in damages. Alaska District Court also hears small claims matters, which is a civil court designed to provide state citizens with a low-cost option to resolve disputes where the amount of controversy is minimal. A traditional small claims court only has the jurisdiction to award money damages. The amount in dispute must be less than \$10,000. Small claims court, sometimes called “people’s court,” is intentionally informal, and a person need not hire an attorney to appear in small claims court. It has special rules that make it amenable to the average individual. Small claims court appealsare the exception to the general rule and when the appeal is granted, it usually results in a new trial where evidence is accepted.
Alaska’s court of general jurisdiction is the Alaska Superior Court . Superior Court judges have the authority to hear all civil litigation matters, all state criminal matters, and nonlitigation cases, including family law, wills and probate, foreclosures, and juvenile adjudications. Once a defendant in a felony criminal case is indicted by the grand jury , the Superior Court has exclusive jurisdiction. A grand jury is a secret hearing held at the request of the prosecutor, that listens to the preliminary evidence against a defendant and decides if there is sufficient evidence to warrant the case going to trial (sometimes referred to as a probable cause finding). See generally Alaska Criminal Rule 6. The grand jury is conducted without the presence of the judge, defense attorney, or defendant. Witnesses are not subject to cross-examination. The grand jury is generally made up of 18 citizens, a majority of whom have to agree that the evidence is sufficient to warrant an indictment. An indictment is the formal charging document outlining the specific criminal laws the defendant is accused of violating. Remember that an indictment is merely an accusation of criminality. A defendant is presumed innocent until a petit jury (i.e., traditional trial jury) finds the accused guilty beyond a reasonable doubt.
The intermediate appellate court for Alaska is called the Alaska Court of Appeals. The Alaska Court of Appeals only has jurisdiction over criminal matters. It may not hear any cases involving a civil appeal. The Alaska Court of Appeals provides appellate review as a matter of right, meaning it must hear an appeal coming from the state’s trial court. Only a defendant found guilty can appeal without violating the protection against double jeopardy. At the appellate level, the Court of Appeals simply reviews the trial court record for error and does not have the jurisdiction to hear new trials or accept evidence.
The highest appellate court for the state is the Alaska Supreme Court. The supreme court is a mandatory appellate court for civil matters and a discretionary court on criminal matters. In this vein, in criminal cases it gets to select the appeals it hears, very similar to the US Supreme Court. The supreme court generally grants a petition for hearing if it decides to hear a criminal case coming out of the Court of Appeals. If review is denied, the Court of Appeals ruling is the final ruling on the case. If review is granted and the supreme court rules on the case, the loser has one more chance to appeal, if there is a federal matter, to the US Supreme Court.
Figure 2.8 Diagram of the Court System
Figure 2.9 Diagram of Federal and State Court System. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/02%3A_The_Legal_System_in_the_United_States/2.04%3A_The_Court_System.txt |
This textbook analyzes criminal law through the lens of Alaska’s Revised Criminal Code. Title 11 of the Alaska statutes is dedicated to substantive criminal law; Title 12 is Alaska’s code of criminal procedure.[1] The overwhelming majority of citations and examples contained in this text are taken directly from Alaska statutes and case law. Throughout the text, reference will be made to Alaska’s Revised Criminal Code, which became effective January 1, 1980, and was a comprehensive criminal code revision. Although subsequent legislative revisions have been made over the years, no legislature has completely revised substantive criminal law as was done in 1980.
A comprehensive criminal code offers significant benefits to practitioners, judges, and the general public. As you will read below, legislative commentary accompanied the passage of the Revised Criminal Code. This commentary provides meaningful insight into legislative intent, the importance of which will become evident as we explore different substantive criminal issues.
The following is an excerpt from the Revised Criminal Code, Law Enforcement Workbook (9th ed. 1994). The original Workbook was prepared by the Alaska Department of Law with dedicated funding from the Alaska Legislature to train Alaska police officers on the new, revised criminal code.
INTRODUCTION: A BRIEF HISTORY OF THE ALASKA
CRIMINAL CODE REVISION
Alaska’s criminal law has for the most part been based on Oregon statutes as they existed at the close of the nineteenth century. Prior to 1899, the Alaska Government Act of 1884 provided that “the general laws of the State of Oregon now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this act or the laws in the United States.” In 1899, Congress approved a criminal code for Alaska based primarily on Oregon law. Most of these century-old Oregon criminal statutes were still in effect in Alaska in 1975, even though Oregon itself enacted a revised criminal code in 1971.
[During the intervening] seventy years, Alaska territorial and state legislatures … added new statutes and amended old ones according to the inspiration of individual legislators reacting to the atmospheres of different times. The result was inevitable. In 1975, Alaska’s criminal law was filled with outdated statutes, imprecise and obsolete terminology, needless distinctions and overly specific and sometimes unconstitutional provisions. The criminal law seemed to deal more adequately with concerns of nineteenth century Oregon than it did with problems of twentieth century Alaska.
The necessity for a comprehensive revision of Alaska’s criminal law was acknowledged in 1975, by the first session of the Ninth Alaska Legislature when it requested the Legislative Council and the Attorney General to establish a “blue ribbon” panel to revise Alaska’s criminal laws. The Legislative Council subsequently established the Criminal Code Revision Commission with an initial membership of nine.
The commission was charged with the responsibility of presenting a revised criminal code to the second session of the Ninth Legislature. On February 1, 1976, the Commission presented the legislature with a Preliminary Report in which it recommended that it be continued or reconstituted and allowed to complete its work by early 1978. The legislature took no action on the drafts contained in the Preliminary Report but statutorily reestablished the Criminal Code Revision Commission as a Subcommission of the newly formed Code Commission. The Subcommission’s mandate was clear; by December 1, 1977, it was to “prepare a comprehensive revision of the State’s criminal laws.”
The Subcommission’s membership was set at 14, with a fifteenth member added during the 1977 legislative session. Several members of the Subcommission originally served on the Commission. The Subcommission included the Commissioner of Public Safety, the Attorney General, legislators, judges and members of the public.
The Subcommission prepared a six-part Tentative Draft of its proposed revisions accompanied by commentary. The Tentative Draft was distributed to all state judges and justices, the state and local bar associations, the state district attorneys and the police chiefs of major cities.
On January 19, 1978, HB 661 “An Act revising the criminal laws of the state; and providing for an effective date” was introduced in the House by the House Judiciary Committee. This bill contained all the recommendations of the Subcommission and was referred to the House Judiciary Committee where daily hearings began immediately.
The House Judiciary Committee devoted nearly three months of public hearings to reviewing the Code. No other bills were considered during this period. Suggestions for amendments were primarily made by the following organizations: The Alaska Bar Association Criminal Law Committee, the Alaska Peace Officers Association, the Alaska Chiefs of Police Association and the criminal division of the Alaska Department of law.
Numerous amendments to the version of the Code recommended by the Subcommission were made by the committee during the three months of hearings. These amendments were incorporated into a committee substitute for HB 661. On April 14, 1978, the House Committee Substitute passed the House by a 32-4-4 vote.
The House Committee Substitute then moved to the Senate where it was referred to the Senate Judiciary Committee. The Senate Judiciary Committee reviewed the House Committee Substitute during nearly two months of public hearings. As was the case in the House, no other bills were considered by the Committee during this period. Public testimony was received primarily from the Alaska Peace Officers Association, Alaska Chiefs of Police Association and the criminal division of the Alaska Department of Law. As a result of the Senate review approximately 150 amendments were made to the House version of the Code.
The Senate Judiciary Committee incorporated its amendments to the Code into a Senate Committee Substitute – SCS CSHB 611. The Senate Committee Substitute, with the addition of three floor amendments adopted on June 13, passed the Senate by a 18-2 vote on June 14, 1973. On notice of reconsideration the amended Senate Committee Substitute, SCS CSHB 661 am S, passed the Senate the next day by a 17-1-2 vote.
The need for a free conference committee to resolve the differences between the House and Senate versions of the Code was avoided on June 16, 1978, when the house concurred in the Senate amendments by a 31-0-9 vote. The revised criminal code became law when it was signed by the governor on July 22, 1978, with an effective date of January 1, 1980.
While the Code was winding its way through the legislature, commentary explaining the Code and expressing legislative intent was also being drafted. On June 12, 1978, the Senate published this commentary as Senate Journal Supplement No. 47. The House subsequently adopted Senate Journal Supplement No. 47 as its letter of intent for the criminal code. An errata sheet to the commentary appears in Senate Journal Supplement No. 48.
The version of the Code that was signed by Governor Hammond in July, 1978, differed in many respects from the bill that was originally introduced in the legislature in January. Nevertheless, the basic structure of the Code did not change during the five months of intensive legislative review. Four important features of the Code remained intact in all versions of the Code.
1. The revision was comprehensive. All of Title 11 was revised and a new sentencing scheme was adopted in Title 12 to accompany the substantive revisions.
2. All crimes, with the exception of murder and kidnapping were classified on the basis of their seriousness as Class A, B or C felonies or as Class A and B misdemeanors. In 1982, Sexual Assault in the First Degree was raised to an unclassified felony subject to a maximum sentence of 30 years. Uniform penalty provisions apply to the five classes of crimes.
3. The sentencing provisions left judicial discretion intact in the sentencing of misdemeanants and most first-time felony offenders. Judicial discretion, however, was substantially restricted by the specification of presumptive sentences for repeat felons.
4. Four culpable mental states “intentionally”, “knowingly”, “recklessly” and “criminal negligence” – were defined and used throughout the Code.
1. The Alaska Criminal Rules, promulgated by the Alaska Supreme Court, supersede some portions of Title 12. A complete discussion of those deviations is beyond the scope of this text. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/02%3A_The_Legal_System_in_the_United_States/2.05%3A_A_Brief_History_of_the_Alaska_Criminal_Code_Revision.txt |
Summary
The United States’ system of government is called federalism and consists of one federal government regulating issues of a national concern and separate state governments regulating local issues. The bulk of criminal lawmaking resides with the individual states because of the police power granted to the states by the Tenth Amendment. Ninety percent of all criminal laws are state laws. Many federal crimes are also state crimes, and a defendant can be prosecuted federally and by a state without triggering double jeopardy protection. If a federal statute exists on an issue, a state statute cannot conflict with it because of the Constitution’s Supremacy Clause.
The U.S. Constitution establishes three branches of government. The legislative branch consists of Congress and has the authority to create laws. The executive branch is headed by the President of the United States and has the authority to enforce the laws created by the legislative branch. The judicial branch is headed by the US Supreme Court and has the authority to interpret laws and the Constitution. Each branch has checks and balances over the others, and the judicial branch ensures that no branch oversteps its authority and violates separation of powers. State governments mimic the federal branches of government at the state level and set forth authorities in each state’s constitution.
The federal court system exclusively adjudicates federal matters and consists primarily of the US District Court, the US Court of Appeals or Circuit Court, and the US Supreme Court. Each state has its own court system consisting primarily of a trial court, intermediate court of appeal, and possibly a high court of appeal. Trial courts have original jurisdiction and can accept evidence. Appellate courts have appellate jurisdiction and are limited to reviewing the trial courts’ decisions for error.
Key Takeaways
• The three sources of law are constitutional, statutory, and case law.
• The sources of law are ranked as follows: first, constitutional; second, statutory; and third, case law. Although it is technically ranked the lowest, judicial review makes case law an extremely powerful source of law.
• The purpose of the US and state constitutions is to regulate government action.
• One purpose of statutory law is to regulate individual or private action.
• The purpose of case law is to supplement the law when there is no statute on point and also to interpret statutes and the constitution(s).
• The court’s power to invalidate statutes as unconstitutional is called judicial review.
• Law comes from three places, the Constitution, a statute, or a case. Collectively, these categories are commonly referred to as the sources of law
• The three branches of government are the legislative branch, the executive branch, and the judicial branch.
• The head of the federal legislative branch of government is Congress. The head of the state legislative branch of government is the state legislature.
• The Senate represents every state equally because each state has two senators. The House of Representatives represents each citizen equally because states are assigned representatives based on their population.
• The head of the federal executive branch of government is the president. The head of each state’s executive branch of government is the governor.
• The head of the federal judicial branch of government is the US Supreme Court. The head of each state judicial branch of government is the highest-level state appellate court.
• Federal courts are exclusive and hear only federal matters or cases involving diversity of citizenship. State courts are nonexclusive and can hear state and federal matters. All federal criminal prosecutions take place in federal court, and all state criminal prosecutions take place in state court.
• Jurisdiction is either the court’s power to hear a matter or a geographic area over which a court has authority.
• Original jurisdiction is a court’s power to hear a trial and accept evidence. Appellate jurisdiction is a court’s power to hear an appeal and review the trial for error.
• Three federal courts adjudicate criminal matters: the trial court, which is called the United States District Court; the intermediate court of appeal, which is called the United States Court of Appeals or Circuit Court; and the high court of appeal, which is called the United States Supreme Court. The district court has original jurisdiction; the Circuit Court and US Supreme Court have primarily appellate jurisdiction.
Websites of Interest | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/02%3A_The_Legal_System_in_the_United_States/2.06%3A_End-of-Chapter_Material.txt |
In addition to statutory and common law defenses (to be discussed in subsequent chapters), a criminal defendant has extensive protections under the US and Alaska constitutions. As stated in the previous chapter, the federal constitution is applicable in all criminal cases since the government is prosecuting the offender. Several state constitutions mirror the federal constitution because it sets the minimum standard of protection guaranteed to all citizens. However, remember that states can – and often do – provide more constitutional protections to criminal defendants than their federal counterpart, so long as those state protections do not violate notions of federal supremacy. In this chapter, both the federal constitution and the Alaska Constitution are analyzed. As you will see shortly, although the federal constitution establishes the floor of constitutional protection, the Alaska Constitution includes greater protection for its citizens.
Constitutional Protections
Generally, two types of constitutional protections exist. First, a defendant can challenge the constitutionality of a criminal statute or ordinance (from this point forward, the term statute includes ordinances unless otherwise noted). Recall these codified laws cannot conflict with, or attempt to supersede, the Constitution. An attack on the constitutionality of a statute can be a claim that the statute is unconstitutional on its face, is unconstitutional as applied, or both. A statute is unconstitutional on its face when its wording is unconstitutional. The statute is invalid (and unenforceable) under any circumstance. A statute is unconstitutional as applied when its enforcement is unconstitutional. This is sometimes referred to as a facial challenge to the statute. The difference between the two is significant. If a statute is unconstitutional on its face, it is invalid under any circumstances. If the statute is unconstitutional as applied, it is only unconstitutional under certain circumstances. As you will see, when faced with finding a statute unconstitutional, courts prefer to decide cases on an as-applied challenge to avoid issuing premature decisions.
Another type of constitutional protection is procedural. The defendant can protest an unconstitutional procedure that occurs during prosecution. Criminal procedure includes, but is not limited to, arrest, interrogation, search, filing of charges, trial, and appeal. The defendant can make a motion to dismiss the charges, suppress evidence, or declare a mistrial. The defendant can also appeal and seek to reverse a conviction, among other remedies.
This book concentrates on criminal law rather than criminal procedure, so the bulk of this chapter is devoted to unconstitutional criminal statutes, rather than unconstitutional procedures. The exception is the right to a jury trial, which is discussed shortly.
Example of Constitutional Protections
Bill is on trial for obstructing a public sidewalk. Bill was arrested for standing in front of a restaurant’s entrance with a sign stating “will eat any and all leftovers.” The city ordinance Bill violated makes it a misdemeanor to “stand or sit on a public sidewalk with a sign.” The ordinance mandates jail time for its violation. To save money, the judge presiding over Bill’s trial declares that Bill will have a bench trial, rather than a jury trial. In this example, Bill can constitutionally attack the city ordinance for violating his freedom of speech because it prohibits holding a sign. The city ordinance appears unconstitutional on its face and as applied to Bill. Bill can also constitutionally attack his bench trial because he has the right to a jury trial under the Sixth Amendment. He could do this by making a motion to declare a mistrial, by petitioning an appellate court to halt the trial, or by appeal after a judgment of conviction.
Judicial Standards of Review
As stated previously in this book, courts review statutes to ensure that they conform to the Constitution pursuant to their power of judicial review. Courts generally use different standards of review when constitutional protections are at stake. Typically, a court balances the government’s interest in regulating conduct against an individual’s interest in a constitutionally protected right. This balancing of interests varies depending on the right at stake. If the government is infringing upon a fundamental right, the court uses strict scrutiny to analyze the statute at issue. A statute that violates or inhibits fundamental constitutional protections is presumptively invalid and can be upheld only if the government can demonstrate that the statute is supported by a compelling government interest and it is narrowly tailored, using the least restrictive means possible to achieve its result.
If a statute is challenged based on discrimination under the equal protection clause and the right being infringed is important, but not fundamental, the court may use a lower standard, called intermediate scrutiny. When the law burdens a non-fundamental, but important right (like gender), the government must demonstrate a close and substantial relationship to the government’s conduct. To date, only gender has been found to be an important, but not fundamental, right. There must be a meaningful and persuasive justification for the government’s decision to treat a person differently based on their gender.
Finally, if a statute implicates neither a fundamental right nor a suspect class, then the government need only to show a reasonable rationale basis for the governmental action. This test, the rational basis test, is the lowest standard of review available. The rational basis test allows a statute to discriminate if the statute is rationally related to a legitimate government interest. Most statutes are reviewed under the rational basis test.
Example of Strict Scrutiny
Review the example regarding Bill, who was arrested for standing and holding a sign. The US Supreme Court has held that freedom of speech is a fundamental right. Thus a court reviewing the ordinance in Bill’s case will hold the ordinance presumptively invalid, unless the government can demonstrate a compelling interest in enacting it, and that it used the least restrictive means possible. In this example, the ordinance is likely unconstitutional. The ordinance is broadly written to include all signs, and preventing individuals from holding signs does not serve a compelling government interest, so this heightened standard will probably result in the court holding the ordinance invalid and unenforceable.
The Legislative Branch’s Prohibited Powers
The legislative branch cannot punish defendants without a trial or enact retroactive criminal statutes pursuant to the Constitution’s prohibition against bill of attainder and ex post facto laws. Article 1, § 9, clause 3 of the US Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.” The prohibition on bill of attainder and ex post facto laws are extended to the states in Article 1, § 10, clause 1: “No State shall…pass any Bill of Attainder, ex post facto Law.” The Alaska Constitution also prohibits bill of attainder and ex post facto legislative action, mirroring the federal Constitution. See Alaska Constitution, Art. 1, §15.
Bill of Attainder
A bill of attainder is a legislative act that punishes an individual without the benefit of a trial. The drafters of the Constitution wanted to ensure that criminal defendants have a full and fair adjudication of their rights before the government imposes punishment. Bill of attainder is usually accomplished by a statute that targets an individual or group of individuals for some type of government sanction. Bill of attainder protection crystalizes the idea of a fair adjudicative process and enforces the separation of powers doctrine by eliminating the ability of the legislature to impose criminal punishment without a trial conducted by the judicial branch. See U.S. v. Brown, 381 U.S. 437 (1965).
Example of Bill of Attainder
Brianne is an outspoken member of the Communist party. Brianne applies for a job as a teacher at her local elementary school and is refused, based on this statute: “Members of any subversive group, including the Communist party, cannot hold public office nor teach for a public institution.” Brianne could attack this statute as a bill of attainder. Its provisions, targeting members of the Communist Party or any other subversive group, punish group members by eliminating career opportunities. The members targeted are punished without a trial or any adjudication of their rights. Thus, this statute allows the legislature to impose a sanction without a trial in violation of the Constitution’s prohibited powers.
Ex Post Facto
An ex post facto law punishes an individual retroactively, and such laws severely encroach upon the notion of fairness. There are three types of ex post facto laws. First, a law is ex post facto if it punishes behavior that occurred before the law was in effect. Second, ex post facto laws increase the punishment for an offense after the crime occurred. Third, a law can be ex post facto if it increases the possibility of conviction after the crime occurred.
Ex post facto laws are not fair since a reasonable person has no way of avoiding criminal conduct since their conduct was not illegal at the time the behavior occurred. Also, there is no way to achieve deterrence – one of the stated goals of sentencing – if individuals did not know what conduct was considered criminal at the time of the conduct. Prohibiting ex post facto laws also protects against arbitrary and vindictive legislation. Legislators are not allowed to punish behavior that was legal, even if abhorrent, after the fact. All citizens are entitled to a fair warning of the criminal acts.
Example of an Ex Post Facto Law Punishing Behavior Retroactively
A state murder statute defines murder as the killing of a human being, born alive. The state legislature amends this statute to include the killing of a fetus, including abortion. The amendment extends the application of the statute to all criminal fetus killings that occurred before the statute was changed. This language punishes defendants for behavior that was legal when committed. If the state attempts to enforce this language, a court would invalidate the statute for violating the prohibition against ex post facto laws.
Example of an Ex Post Facto Law Increasing Punishment Retroactively
In the preceding example about amending the murder statute, the state also amends the statute to increase the penalty for murder to the death penalty. Before the amendment, the penalty for murder was life in prison without the possibility of parole. The state cannot give the death penalty to defendants who committed murder before the statute was amended. This is considered ex post facto because it increases the punishment for the offense after the crime is committed.
Example of an Ex Post Facto Law Increasing the Possibility of Conviction Retroactively
In the preceding example, the state amends the murder statute to remove the statute of limitations, which is the time limit on prosecution. Before the amendment, the statute of limitations was fifty years. Pursuant to this amendment, if the government sought to prosecute an individual for murder who committed murder more than fifty years ago, such a prosecution would be considered ex post facto because it increases the chance of conviction after the crime is committed.
Changes That Benefit a Defendant Retroactively
Changes that benefit a criminal defendant are not considered ex post facto and may be applied retroactively, provided that the legislature explicitly provides for retroactive application. In the preceding example, if the state amended the murder statute to shorten the statute of limitations, this change actually benefits defendants by making it more difficult to convict them. Thus this amendment would be constitutional.
Ex Post Facto Applies Only to Criminal Laws
Ex post facto protection applies only to criminal laws. Laws that raise fees or taxes after payment are civil rather than criminal in nature. Thus these retroactive increases do not exceed governmental authority and are constitutional.
Example of Ex Post Facto Under Alaska Constitution
A good example of the heightened protections one has under the Alaska Constitution is Alaska’s Sex Offender Registration Act (ASORA) (sometimes referred to as Alaska’s “Megan’s Law”). In 1994, the Alaska Legislature passed the ASORA, which requires all sex offenders and child kidnappers to register with the Department of Public Safety (DPS). AS 18.65.087. DPS is authorized to maintain a publicly searchable, central registry of all offenders. When the Alaska Legislature enacted this statute, it required all sex offenders, regardless of when they were convicted, to register with DPS. Shortly after it was enacted, a group of convicted sex offenders challenged the enforceability of ASORA, arguing that the statute violated their protection against ex post facto laws under the federal constitution. The US Supreme Court found that the ASORA did not violate the federal constitution’s prohibition against ex post facto laws since the registration requirement was nonpunitive (non-criminal); the statute could be enforced retroactively. Smith v. Doe, 538 U.S 84 (2003).
Shortly thereafter, the same statute was challenged under the Alaska Constitution, where the convicted sex offenders argued that ASORA violated the ex post facto clause of the state constitution. Unlike the US Supreme Court, the Alaska Supreme Court found the ASORA so punitive that it was the equivalent of increasing a person’s sentence retroactively. Thus, the ASORA was unconstitutional as applied to convicted sex offenders who were convicted prior to the enactment of ASORA. Doe v. State, 189 P.3d 999, 1018 (Alaska 2004).
This example demonstrates the application of several rules just covered. First, the federal constitution establishes minimum constitutional protections. The Alaska Constitution provides greater protection to criminal defendants than the federal constitution. Second, a statute can be found unconstitutional only to a subgroup of individuals. In Doe, the Alaska Supreme Court found that ASORA was only unconstitutional when applied to convicted sex offenders before the enactment of the statute. It remained constitutional for the remaining convicted sex offenders; they must continue to register with DPS. Finally, the statute violated the protection against ex post facto because it increased the punishment retroactively. The convicted sex offenders had no notice that they would be required to register with DPS following their conviction. Such a result was fundamentally unfair. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/03%3A_Constitutional_Protections/3.01%3A_Applicability_of_the_Constitution.txt |
Although Article I of the Constitution prohibits certain legislative branch powers, the Bill of Rights contains most of the constitutional protections afforded to criminal defendants. The Bill of Rights is the first ten amendments to the Constitution. In addition, the Fourteenth Amendment, which was added to the Constitution after the Civil War, added additional protections of due process and equal protection.
For much of U.S. history, the constitutional protections found within the Bill of Rights only applied to the federal government. However, beginning in the 1920s, the US Supreme Court adopted the doctrine of selective incorporation, in which it held most of the constitutional protections found within the Bills of Rights are implicit to due process’s concept of ordered liberty and must be incorporated into the Fourteenth Amendment’s protections and applied to the states. See. e.g., Mapp v. Ohio, 367 U.S. 643 (1961) and Gideon v. Wainwright, 372 U.S. 335 (1963). To be clear, not all of the rights guaranteed by the Bill of Rights have been incorporated and applied to the states. But generally speaking, the overwhelming majority of the constitutional protections in the Bill of Rights apply to the States. Thus although the original focus of the Bill of Rights may have only limited the federal government, modern constitutional jurisprudence extends the Bill of Rights protections to all levels of state and local government.
The due process clause states, “No person shall…be deprived of life, liberty, or property, without due process of law.” The due process clause in the Fifth Amendment applies to federal crimes and federal criminal prosecutions. The due process clause is repeated in the Fourteenth Amendment, which guarantees due process of law in state criminal prosecutions. The Alaska Constitution has a nearly identical provision, as do most states. See Alaska Constitution, Art. 1, §7.
Due process is a concept that all persons are entitled to “procedural justice” whenever they are threatened with the loss of life, liberty, or property at the hands of the government. It requires that government provide a mechanism to all persons to ensure that it acts justly, fairly, and reasonably. Due process exists without the need for individual action.
There are two types of due process: substantive and procedural. Substantive due process protects individual liberty and the unreasonable loss of substantive rights, such as the right to speak freely and the right to privacy. Substantive due process prohibits government action that shocks our collective conscience or interferes with our basic concept of ordered liberty. Procedural due process guarantees a fair process in connection with any deprivation of life, liberty, or property at the hands of the government. Procedural due process also ensures that individuals have notice and an opportunity to be heard. Both substantive and procedural due process ensure that individuals are not denied their life (capital punishment), liberty (incarceration), or property (forfeiture) arbitrarily.
Due process, like all constitutional rights, is not limitless. The government may interfere with a person’s individual liberty if the government’s actions are necessary for an ordered society. This balancing test requires the court to assess the quality of the right impacted and the importance of the government’s conduct.
Chase v. State, 243 P.3d 1014 (Alaska App. 2010)
The following case, Chase v. State, demonstrates how courts balance the competing interests involved in government regulation. Although Chase discusses the right to personal autonomy as guaranteed by the Alaska Constitution, the Court analyzed the importance of the government’s regulation when determining the constitutionality of a particular statute.
243 P.3d 1014
Court of Appeals of Alaska.
Steven L. CHASE, Appellant,
v.
STATE of Alaska, Appellee.
No. A–10433.
Dec. 3, 2010.
Rehearing Denied Dec. 30, 2010.
OPINION
MANNHEIMER, Judge.
Steven L. Chase was driving in Fairbanks when a state trooper pulled him over because Chase was not wearing his seatbelt. During this traffic stop, the officer discovered that Chase should not have been driving at all; Chase’s driver’s license was canceled. Chase was subsequently convicted of driving with a canceled driver’s license and driving without his seatbelt fastened. He appeals his convictions, arguing … why his convictions are unlawful.
Chase … argues that Alaska’s seatbelt law is unconstitutional because it is an unjustified infringement of the rights of personal autonomy and liberty guaranteed by Article I, Section 1 of the Alaska Constitution.
For the reasons explained here, we conclude that … Chase’s claims [have no] merit, and we therefore affirm his convictions.
Whether Alaska’s seatbelt law infringes the rights of personal liberty, autonomy, and privacy guaranteed by the Alaska Constitution.
We first address Chase’s argument that the seatbelt law is unconstitutional as a general matter. Chase contends that whatever governmental interest there may be in having people wear seatbelts is outweighed by the rights of personal liberty and autonomy guaranteed by Article I, Section 1 of the Alaska Constitution.
Article I, Section 1 of our state constitution declares that “all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry”. In Breese v. Smith, 501 P.2d 159, 168–172 (Alaska 1972), the Alaska Supreme Court interpreted this provision as guaranteeing a certain level of personal autonomy, and as creating a sphere of personal activities and choices that are presumptively immune from government interference or regulation.
Chase argues that Article I, Section 1 protects his right to travel without police interference, his right to personal privacy, and his right to be free from unreasonable seizure.
We are not convinced that Article I, Section 1, standing alone, should necessarily be interpreted to protect all three of the interests that Chase has identified (right to travel, right to privacy, and right to be free of unreasonable seizure)—since two of these interests (privacy, and the right to be free from unreasonable seizure) are explicitly covered by other provisions of our state constitution. Article I, Section 22 guarantees a right of privacy, while Article I, Section 14 prohibits unreasonable searches and seizures. But in any event, we acknowledge that Chase has identified three constitutionally protected interests.
Chase contends that a person’s decision whether to wear a seatbelt is a personal and private choice akin to a person’s choice of hairstyle—a choice that the Alaska Supreme Court declared to be protected under Article I, Section 1 in Breese v. Smith. Chase further argues that the government has no significant interest in making people wear seatbelts when they drive (or ride in) motor vehicles. Chase contends that the seatbelt law has not made any discernible improvement in public safety, and he further contends that the Alaska Legislature’s main motivation for enacting this law was to make sure that Alaska remained eligible for federal highway funds.
However, the record shows that when the legislature first enacted the seatbelt law, the legislature was presented with ample testimony and documentary evidence indicating that the law would increase seatbelt use, would prevent injuries, and would save lives and money. As a general rule, it is not an appellate court’s role to strike down legislation simply because one might reasonably argue that the legislation was misguided, or simply because it appears that legislation may not have accomplished all of its intended goals. As this Court explained in Dancer v. State:
We may not concern ourselves with the wisdom of legislation. Our role is much more modest. We evaluate the legislation to determine whether it contravenes any prohibitions in the constitution. If it does not, we must uphold the legislation. Policy arguments advocating changes to constitutional legislation must be addressed to the legislature, not the courts.
715 P.2d 1174, 1176 (Alaska App.1986).
This leaves Chase’s argument that, whatever legitimate government interest there might be in having people wear seatbelts, that interest is outweighed by the individual’s interest in personal autonomy and privacy. But the Alaska Supreme Court rejected a similar “personal privacy” argument in Kingery v. Chapple, 504 P.2d 831, 835–37 (Alaska 1972), a case in which the supreme court upheld the constitutionality of Department of Public Safety regulations that required motorcycles to have various types of safety equipment, and which required motorcycle riders to wear a helmet.
In rejecting this privacy claim, the supreme court distinguished its earlier decision in Breese v. Smith (dealing with the government’s attempted regulation of a student’s hairstyle choice). The supreme court declared that the challenged motorcycle regulations did not constitute an “invasion of privacy” because those regulations were supported by “compelling state interests in providing for [the] safety of the traveling public”. Kingery, 504 P.2d at 835 n. 6.
When the seatbelt law was under consideration by the legislature, several highway safety experts told the legislature that a seatbelt law which authorized police officers to stop motorists for not wearing seatbelts was an effective measure for reducing the number of deaths and serious injuries from highway accidents. Chase has failed to offer a persuasive rebuttal to that testimony.
For these reasons, we reject Chase’s argument that Alaska’s seatbelt law unlawfully infringes the rights of personal liberty, autonomy, and privacy guaranteed by the Alaska Constitution.
[…]
Conclusion
The judgement of the district court is AFFIRMED.
Notice that the court was obligated to balance the competing interests involved – that is, it had to balance society’s interest in saving lives and money against an individual’s right to be free from governmental interference. The court was unwilling to question the wisdom of a particular law and instead focused on the reasonableness of the interference.
Ask yourself if the courts should be providing such deference to the legislature. How would such deference be applied to a “mask mandate” issued via an Emergency Order by a local government’s mayor as we saw during the Covid-19 global pandemic? Do you think a court would engage in a different analysis?
Void for Vagueness
A statute is void for vagueness if it uses words that are indefinite or ambiguous. A void for vagueness challenge attacks the wording of a statute under the due process clause. Statutes that are not precisely drafted do not provide notice to the public of exactly what kind of behavior is criminal. In addition, and more importantly, they give too much discretion to law enforcement and are unfairly enforced. See e.g., U.S. v. White, 882 F.2d 250, 252 (7th Cir. 1989). To violate due process, a statute must be so unclear that “men of common intelligence must guess at its meaning.” See Connally v. General Construction Co., 269 U.S. 385, 391 (1926). All criminal statutes must give a person of ordinary intelligence fair notice that his or her conduct is forbidden. Note that “person of ordinary intelligence” is measured from the perspective of a reasonable, hypothetical person, not necessarily whether the accused understood the particular statute.
Example of a Statute That Is Void for Vagueness
A state legislature enacts a statute that criminalizes “inappropriate attire on public beaches.” Larry, a law enforcement officer, arrests Kathy for wearing a two-piece bathing suit at the beach because, in his belief, women should wear one-piece bathing suits. Two days later, Burt, another law enforcement officer, arrests Sarah for wearing a one-piece bathing suit at the beach because, in his belief, women should not be seen in public in bathing suits. Kathy and Sarah can attack the statute as being void for vagueness. The term “inappropriate” is unclear and can mean different things to different people. It gives too much discretion to law enforcement, is subject to uneven application, and does not give Kathy, Sarah, or the public adequate notice of what behavior is criminal.
Overbreadth
A statute is overbroad if it criminalizes both constitutionally protected and constitutionally unprotected conduct. This challenge is different from void for vagueness, although certain statutes can be attacked on both grounds. An overbroad statute criminalizes too much and needs to be revised to target only conduct that is outside the Constitution’s parameters.
Example of an Overbroad Statute
A state legislature enacts a statute that makes it criminal to photograph “nude individuals who are under the age of eighteen.” This statute is probably overbroad and violates due process. While it prohibits constitutionally unprotected conduct, such as taking obscene photographs of minors, it also criminalizes First Amendment protected conduct, such as photographing a nude baby.
Figure 3.3 – The Federal Due Process Clause
The Equal Protection Clause
The Fourteenth Amendment states in relevant part, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” The equal protection clause applies to state government. State constitutions generally have a similar provision. Alaska Constitution, Art. I, § 1. The equal protection clause prevents a state from enacting criminal laws that discriminate in an unreasonable and unjustified manner. The Fifth Amendment due process clause prohibits the federal government from discrimination if the discrimination is so unjustifiable that it violates due process of law. See Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954).
To be clear: not all governmental discrimination is prohibited; instead, the government may not impermissibly discriminate. Whether the government impermissibly discriminated against a person depends on the class of persons targeted for special treatment. In general, court scrutiny is heightened according to a sliding scale when the subject of discrimination is an arbitrary classification. Arbitrary means random and often includes characteristics an individual is born with, such as race or national origin. The most arbitrary classifications demand strict scrutiny, which means the criminal statute must be supported by a compelling government interest. Statutes containing classifications that are not arbitrary must have a rational basis and be supported by a legitimate government interest.
Criminal statutes that classify individuals based on their race must be given strict scrutiny because race is an arbitrary classification that cannot be justified. Modern courts do not uphold criminal statutes that classify based on race because there is no government interest in treating citizens of a different race more or less harshly. See generally, Loving v. Virginia, 388 U.S. 1 (1967).
Criminal statutes that have a rational basis for discrimination and are supported by a legitimate government interest can discriminate, and frequently do. For example, criminal statutes punish felons more severely when they have a history of criminal behavior and are supported by the legitimate government interests of specific and general deterrence and incapacitation. See e.g., Lapitre v. State, 233 P.3d 1125, 1128 (Alaska App. 2010). Note that the basis of the discrimination – a criminal defendant’s status as a convicted felon – is rational, not arbitrary like race. Although these statutes discriminate, they are constitutional pursuant to the equal protection clause.
Figure 3.4 The Federal Equal Protection Clause | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/03%3A_Constitutional_Protections/3.02%3A_The_Due_Process_and_Equal_Protection_Clauses.txt |
The First Amendment states, in relevant part, “Congress shall make no law…abridging the freedom of speech.” Although this language specifically targets Congress, the First Amendment has been held applicable to the states by virtue of selective incorporation. See Gitlow v. New York, 268 U.S. 652 (1925). Most states, like Alaska, have a similar constitutional provision protecting freedom of speech. In fact, the Alaska Constitution recognizes that although all citizens have the right to speak freely, they are equally responsible for the consequences of such speech.
“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”
Alaska Constitution, Art. 1, §5.
Freedom of speech is frequently referred to as “the bedrock of a democratic society.” Our Founding Fathers believed that a robust, free exchange of ideas was the great shield against tyranny and memorialized this principle in the free speech clause of the First Amendment. The First Amendment prevents the government from restricting (and criminalizing) our expressions, ideas, messages, and content. The word speech has been interpreted to cover virtually any form of expression, including verbal and written words, pictures, photographs, videos, and songs. First Amendment speech not only covers words and ideas, but also symbolic speech, including expressive conduct such as dressing a certain way (Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)), flag burning (Texas v. Johnson, 491 U.S. 397 (1989)), and cross burning (R.A.V. v. St. Paul, 505 U.S. 377 (1992)).
However, even though our free speech is paramount to a well-functioning democracy, it is not limitless. Not all speech is protected. When limiting a person’s speech, the court conducts a balancing test – the court must weigh an individual’s right to free expression against society’s interest in a safe, secure, and peaceful community.
Exceptions to the First Amendment’s Protection of Free Speech
In general, courts have examined the history of the Constitution and the policy supporting freedom of speech when creating exceptions to its coverage. Modern decisions afford freedom of speech the strictest level of scrutiny; only a compelling government interest can justify an exception, which must use the least restrictive means possible. See Sable Communis. of California, Inc. v. FCC, 492 U.S. 115 (1989). For brevity, this book reviews the constitutional exceptions to free speech in statutes criminalizing fighting words, incitement to riot, true threats, hate crimes, and obscenity.
Figure 3.5 The First Amendment
Fighting Words
Although the First Amendment protects peaceful speech and assembly, if speech creates a clear and present danger to the public, it can be regulated. Schenck v. U.S., 249 U.S. 47 (1919). This includes fighting words, or “those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” See Chaplinsky v. New Hampshire, 315 U.S 568, 572 (1942).
Any criminal statute prohibiting fighting words must be narrowly tailored and focus on imminent rather than future harm. Modern US Supreme Court decisions indicate a tendency to favor freedom of speech over the government’s interest in regulating fighting words, and many fighting words statutes have been deemed unconstitutional under the First Amendment or void for vagueness and overbreadth under the Fifth Amendment and Fourteenth Amendment due process clause. The Alaska case, Anniskette v. State, 489 P.2d 1012 (Alaska 1971), included below demonstrates the judiciary’s concern of governmental overreach when criminalizing “mean” words.
Example of an Unconstitutional Fighting Words Statute
Georgia enacted the following criminal statute: “Any person who shall, without provocation, use to or of another, and in his presence…opprobrious words or abusive language, tending to cause a breach of the peace…shall be guilty of a misdemeanor.” See former Ga. Code § 26-6303. The US Supreme Court determined that this statute was vague and overbroad, and unconstitutional under the First Amendment. See Gooding v. Wilson, 405 U.S. 518 (1972).
The Court noted that “[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only within narrow specificity.” See id. at 522. The Court held that the dictionary definitions of “opprobrious” and “abusive” gave government greater reach than fighting words. Thus the statute was overbroad since it did not restrict its prohibition to imminent harm. The terms opprobrious and abusive have various meanings, so the statute is subject to uneven enforcement and is void for vagueness. As the Court stated, this statute “licenses the jury to create its own standard in each case.” See id. at 528 (citingHerndon v. Lowry, 301 U.S. 242, 263 (1937)).
Incitement to Riot
Inciting a riot is not protected speech. Incitement to riot is regulated under the clear and present danger exception. Similar to fighting words, an incitement to riot statute must prohibit imminent lawless action. See Brandenburg v. Ohio, 395 U.S. 444 (1969). Statutes that prohibit simple advocacy with no imminent threat or harm cannot withstand the First Amendment’s heightened scrutiny.
Brandenburg .v Ohio, 395 U.S. 444 (1969)
In Brandenburg v. Ohio, the U.S. Supreme Court struck down a statute that criminalized “advocat[ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism”. See former Ohio Rev. Code Ann. § 2923.13. An excerpt of the case is included below. Notice how the Court focused on the difference between simple advocacy and incitement to violence.
89 S.Ct. 1827
Supreme Court of the United States
Clarence BRANDENBURG, Appellant,
v.
State of OHIO.
No. 492.
Argued Feb. 27, 1969.
Decided June 9, 1969.
Opinion
PER CURIAM.
The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for[:]
‘advocat(ing) * * * the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for ‘voluntarily assembl(ing) with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.’ […]
[See former Ohio Rev. Code Ann. § 2923.13.]
He was fined \$1,000 and sentenced to one to 10 years’ imprisonment. The appellant [Brandenburg] challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal … Appeal was taken to this Court, and we noted probable jurisdiction. We reverse.
The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan ‘rally’ to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.
The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.
One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:
‘This is an organizers’ meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.
‘We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.’
The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of ‘revengeance’ was omitted, and one sentence was added: ‘Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.’ Though some of the figures in the films carried weapons, the speaker did not.[…]
1927, this Court sustained the constitutionality of [a substantially similar law, the] California’s Criminal Syndicalism Act. …[U.S. Supreme Court precedent has] fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U.S. 290 (1961),
‘the mere abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.’ A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.
Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who ‘advocate or teach the duty, necessity, or propriety’ of violence ‘as a means of accomplishing industrial or political reform’; or who publish or circulate or display any book or paper containing such advocacy; or who ‘justify’ the commission of violent acts ‘with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism’; or who ‘voluntarily assemble’ with a group formed ‘to teach or advocate the doctrines of criminal syndicalism.’ Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.
Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments.
[…]
Reversed.
True Threats
Courts have long recognized that the First Amendment does not prohibit a state from criminalizing “true threats”- that is, threats to cause harm to another person. States have a legitimate interest in preventing persons from engaging in speech that unjustifiably creates an objective, reasonable fear. Although a person may have a fundamental right to express abusive, caustic, or offensive views, no one has the right to threaten physical violence. States can, and frequently do, criminalize such conduct. What constitutes a threat, however, must be distinguished from what constitutes constitutionally protected speech.
“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence[.]”
See Virginia v. Black, 538 U.S. 434, 359-60 (internal citations omitted).
Although the government need not prove the defendant intended to carry through with the threat, the government bears the burden of proving that the utterance was more than simple hyperbole. This determination requires the court to view the defendant’s speech in context, weighing the reaction of the listeners and its conditional nature (if any). See e.g., Watts v. United States, 394 U.S. 705, 708 (1969). This is not always an easy task.
Nonetheless, Alaska has enacted several criminal statutes that proscribe threats of physical violence or criminalize conduct that may cause a reasonable person to be afraid. For example, second-degree terroristic threatening criminalizes making a threat that causes an evacuation of a public building (e.g., a bomb threat). AS 11.56.810(a)(1)(b). Stalking, on the other hand, criminalizes a pattern of nonconsensual contact that causes a reasonable person to be placed in fear. AS 11.41.270. We will explore these crimes, and others, in subsequent chapters, but for now recognize that whenever the government seeks to proscribe threatening conduct, the First Amendment may limit the reach of the proposed crime.
Hate Crimes
Many states and the federal government have enacted hate crimes statutes. When hate crime statutes criminalize speech, including expressive conduct, a First Amendment analysis is appropriate. When hate crimes statutes enhance a penalty for criminal conduct that is not expressive, the First Amendment is not applicable. See Wisconsin v. Mitchell, 508 U.S. 476 (1993). In Alaska, hate crimes are subject to enhanced punishment. AS 12.55.155(c)(22).
Hate crimes statutes punish conduct that targets a specific classifications of people. These classifications are listed in the statute and can include race, ethnicity, gender, sexual orientation, or religion. Hate crimes statutes that criminalize speech may be constitutional under the clear and present danger exception if they are tailored to apply only to speech or expressive conduct that is supported by an intent to intimidate. See Virginia v. Black, 538 U.S. 343 (2003). This can include speech or expressive conduct such as threats of imminent bodily injury, death, or cross burning. As with all criminal statutes that implicate the First Amendment, hate crimes statutes must be narrowly drafted, and will be struck down if vague or overbroad.
Hate crimes statutes that criminalize the content of speech, like a prejudicial opinion about a certain race, ethnicity, gender, sexual orientation, or religion, are unconstitutional under the First Amendment. See R.A.V. v. St. Paul, 505 U.S. 377 (1992). Statutes that criminalize content-based speech have a “chilling effect” on free expression by deterring individuals from expressing unpopular views, which is the essence of free speech protection. Although this type of speech can stir up anger, resentment, and possibly trigger a violent situation, the First Amendment protects content-based speech from governmental regulation unless the government can demonstrate a compelling state interest.
Is Cross Burning Constitutional?
Cross burning has a long and violent history in America, one that is intertwined with the rise of the Ku Klux Klan. Several jurisdictions have sought to criminalize such conduct due to its violent and intimidating nature. Whether such laws withstand First Amendment scrutiny, however, largely depends on whether the law targets the content of speech or the conduct at issue (regardless of the speech’s content).
An Unconstitutional Statute Prohibiting Cross Burning
St. Paul, Minnesota, enacted the Bias-Motivated Crime Ordinance, which prohibited the display of a symbol that a person knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” See former Ordinance, St. Paul, Minn., Legis. Code § 292.02 (1990). In R.A.V. v. St. Paul, the US Supreme Court held that this ordinance was unconstitutional on its face because the regulation was based on the content of speech, with no additional requirement for imminent lawless action. The Court held that the ordinance did not proscribe the use of fighting words (the display of a symbol) toward specific groups of individuals, which would be an equal protection clause challenge. Instead, the Court determined that the statute prohibited the use of specific types of fighting words – that is, words that promote racial hatred. This was impermissible viewpoint-based censorship. As the Court stated, content-based regulations “are presumptively invalid.” See id. at 382 (citations omitted).
Compare the St. Paul ordinance discussed above with the Virginia statute below.
A Constitutional Statute Prohibiting Cross Burning
Virginia enacted a statute that made it criminal “for any person…, with the intent of intimidating any person or group…, to burn…a cross on the property of another, a highway or other public place.” See Va. Code Ann. § 18.2-423. The US Supreme Court held this statute constitutional under the First Amendment because it did not single out cross-burning indicating racial hatred, unlike the Minnesota cross-burning ordinance, but instead required the government to prove that the accused acted with the intent to intimidate. The Court stated, “[u]nlike the statute at issue in R. A. V., the Virginia statute does not single out for opprobrium only that speech directed toward ‘one of the specified disfavored topics.'” See Virginia v. Black, 538 U.S. 343, 362 (2003) (citations omitted). [Under the Virginia statute] it does not matter whether an individual burns a cross with intent to intimidate because of the victim’s race, gender, or religion, or because of the victim’s “political affiliation, union membership, or homosexuality.” See id. According to the Court, this was constitutional since the ordinance was content-neutral.
Anniskette v. State, 489 P.2d 1012 (Alaska 1971)
The following Alaska case, Anniskette v. State , 489 P.2d 1012 (Alaska 1971), demonstrates how the court analyzes a potential challenge to a criminal statute under the First Amendment. As you read the case, ask yourself whether you believe the court is treating the victim differently than other citizens given his profession.
489 P.2d 1012
Supreme Court of Alaska.
Ralph ANNISKETTE, Appellant,
v.
STATE of Alaska, Appellee.
No. 1231.
Oct. 15, 1971.
Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.
OPINION
CONNOR, Justice.
Appellant was convicted by a district court jury of disorderly conduct and disturbance of the peace under AS 11.45.030. The complaint stated that on or about August 22, 1969, Ralph Anniskette ‘did unlawfully conduct himself in a disorderly manner in his home to the disturbance of an Alaska State Trooper, Lorn Campbell, by telephoning Trooper Campbell and berating him with loud and abusive language.’
It seems that appellant regularly telephoned the local resident trooper and complained at length regarding the trooper’s qualifications and performance. Repeated calls were often made late at night while appellant was apparently intoxicated. The trooper and his family became increasingly upset with such recurrent harassment, which occurred even while the trooper was out of town.
However, appellant was charged with making but a single telephone call on August 22, 1969. The call was from appellant’s home to Trooper Campbell’s home. During the course of that conversation, he complained at length regarding the trooper’s effectiveness, and even questioned whether the trooper was properly qualified to be a law-enforcement official.[1]
At his trial, appellant moved to dismiss the charge for failure to state an offense under AS 11.45.030. If an offense was stated, it was, he argued, an unconstitutional application of the statute. Alternatively, he asserted that the statute was unconstitutionally vague on its face, and that it constituted an invalid prior restraint on his freedom of speech. His motion was denied. He was convicted in the district court and appealed to the superior court. Upon affirmance of his conviction by that court, this appeal followed.
This is not a case in which a comprehensive interpretation of the disorderly conduct statute is required. Whatever the statute means, it cannot be applied to behavior which is constitutionally exempt from criminal prohibition. It must be recognized at the outset that it is communicative utterances which are the subject of prosecution. They constitute the sole form of behavior for which the defendant was prosecuted.
Under the First Amendment to the Constitution, it is only in the most limited circumstances that speech may be punished. Certainly the defendant’s conduct does not fall within the unprotected area of ‘obscenity’. No claim is made that Anniskette’s message was erotically arousing. See Cohen v. California, 403 U.S. 15 (1971). The defendant did not use ‘profanity’ of the type which creates in and of itself a public nuisance. At least no such ‘profanity’ is charged here.[2] Writing for the court in Cohen, Mr. Justice Harlan pointed out that coarse words must often be a necessary concomitant to achieving those values which open debate and free speech are designed to serve:
‘Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.’ [citations omitted]
Nor can we find in defendant’s telephone call an exhortation to violence by others which creates a clear and present danger that such violence will occur.
We cannot classify the defendant’s telephonic communication as falling within the category of ‘fighting words’, which is recognized as another exception to the freedom of speech guaranteed by the Constitution. The ‘fighting words’ doctrine covers those face-to-face utterances which ordinarily provoke, in the average, reasonable listener, an immediate violent response. The defendant’s conduct in this case did not reach that degree of provocation.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), is not apposite. It concerns a narrowly construed statute prohibiting ‘face-to-face words plainly likely to cause a breach of the peace by the addressee’. An important distinguishing feature of Chaplinsky is that the words, ‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists’, were uttered at a street intersection where the listening crowd had become unruly, and after a disturbance in the crowd had actually occurred. Because these words, in context, tended to incite an immediate breach of the peace, they were held not to be protected as free speech
But here the situation is quite different. For even if it were assumed for purposes of argument that Anniskette’s message contained ‘fighting words’, constitutional protection would still extend to the particular factual setting presented here. The time necessary for the officer to travel from his residence to that of the defendant should have allowed enough cooling off so that any desire on the part of the officer to inflict violence on the defendant should have been dissipated. We assume that the officer had sufficient self-control that, after such a period of time, he would not have assaulted the defendant for what had been said earlier. As another court has observed,
‘A policeman’s special powers and training, and his constant exposure to situations where the norms of common speech are not distinguished by unvarying delicacy of expression, leave him less free to react as quickly as the private citizen to a purely verbal assault. In a situation where he is both the victim of the provocative words of abuse and the public official entrusted with a discretion to initiate through arrest the criminal process, the policemen may, ordinarily at least, be under a necessity to preface arrest by a warning. It would appear that there is no First Amendment right to engage in deliberate and continued baiting of policemen by verbal excesses which have no apparent purpose other than to provoke a violent reaction.’
Williams v. District of Columbia, 419 F.2d 638, 646, n. 23 (1969).
That the officer was personally offended by the telephone call does not render the defendant’s conduct a crime. That would be to make the terms of the statute and the content of the First Amendment shift with the mentation and emotional status of the recipient of the verbal communication. Under an objective standard it is not permissible to make criminality hinge upon the ideological vicissitudes of the listener. A great deal more is required to place speech outside the pale of First Amendment protection. The point was made forcefully [by the United States Supreme Court] in Terminiello v. Chicago, 337 U.S. 1, 4 (1949):
‘Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, (citing Chaplinsky) is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.’
We understand the difficulties encountered by a state trooper in a small community, where village vexations at times can reach a fever pitch. We may even view appellant’s conduct with personal disapproval. But we find neither legislative language nor constitutional power to read the statute as including within its ambit a single telephone call criticizing a public officer for the performance of his official duties. [citations omitted]
In the light of these constitutional mandates … [w]e hold that defendant’s conduct did not constitute a crime.
We reverse and remand with direction that the complaint be dismissed.
Reversed.
[1] The trooper testified that:
‘Mr. Anniskette-he told me I was a no good goddam cop and that he had a call into Juneau right now to find out if I was a State trooper and that when they had their own policeman that they never had the problems that since I’d been over there that they have with their kids drinking, that what was I gonna’ do about a subject named Ernie Fawcett (phonetic) who had stabbed a Marvin Milton (phonetic), that the was still running on the street and that if he got to checking that he’ll bet that I didn’t even report this and make a report concerning this, and he went on and on over the same type of things.’
[2] The expletive, ‘no good goddamn cop’, merely as a part of a more generalized conversation, would hardly rise to the level of profanity which can constitutionally be reached by the criminal law. […]
Obscenity
Another exception to free speech is obscenity; obscene speech is not protected speech. Obscenity is usually conveyed by speech, such as words, pictures, photographs, songs, videos, and live performances. See generally Roth v. United States, 354 U.S. 476, 484-86 (1957). “Obscene”, however, is not easily defined. As Justice Stewart famously explained, in his view, obscenity may be “indefinable … [b]ut I know it when I see it.” See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
In Miller v. California, 413 U.S. 15 (1973), the US Supreme Court devised a three-part test to ascertain if speech is obscene and subject to government regulation. Generally, speech is obscene if (1) the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest in sex; (2) it depicts sexual conduct specifically defined by the applicable state law in a patently offensive way; and (3) it lacks serious literary, artistic, political, or scientific value. See id.
Example of Speech That Is Not Obscene
In Jenkins v. Georgia, 418 U.S. 153 (1974), the US Supreme Court viewed the film Carnal Knowledge to determine whether the defendant could be constitutionally convicted under an obscenity statute for showing it at a local theater. The Court concluded that most of the film’s sexual content was suggestive rather than explicit, and the only direct portrayal of nudity was a woman’s bare midriff. Thus although a jury convicted the defendant after viewing the film, the Court reversed the conviction, stating that the film does not constitute the hard-core pornography that the three-part test for obscenity isolates from the First Amendment’s protection. The Court stated, “Appellant’s showing of the film ‘Carnal Knowledge’ is simply not the ‘public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain’ which we said was punishable in Miller.” See Jenkins, at 161 (internal citations omitted).
Nude Dancing
Statutes that regulate nude dancing have also been challenged under the First Amendment. While the US Supreme Court has found that nude dancing falls within a constitutionally protected expression, it has noted that nude dancing falls only “within the outer ambit of First Amendment protection.” See City of Erie et al v. Pap’s A.M., 529 U.S. 277, 289 (2000). The US Supreme Court has generally upheld government reasonable regulation of erotic dancing, such as requirements that nude dancers wear pasties and a g-string. See id. The Court has noted that the government has a legitimate interest in preventing negative secondary effects (i.e., prostitution, excessive noise, traffic congestion, etc.).
The Alaska Supreme Court, interpreting the Alaska Constitution, has noted that sexually-oriented speech is not less worthy of protection than other types of speech. In the eyes of the Alaska Supreme Court, nude dancing is a form of free expression and any government regulation must be narrowly tailored to achieve its result (strict scrutiny). See Club SinRock LLC v. Anchorage, 445 P.3d 1031, 1037-38 (Alaska 2019). | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/03%3A_Constitutional_Protections/3.03%3A_Freedom_of_Speech.txt |
The federal constitution does not contain an explicit right to privacy. However, several of the amendments in the Bill of Rights protect individual decision-making. Other amendments protect personal autonomy from unwarranted governmental intrusion. These amendments – taken together – create a “zone of privacy” within the penumbra of the Bill of Rights. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Under this modern constitutional interpretation, the US Supreme Court has created a right to privacy. See id. This right is considered fundamental and subject to strict scrutiny; only a compelling government interest can justify a statute encroaching on its protections.
Alaska, like many states, includes an explicit right to privacy in the Alaska Constitution.
“The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”
Alaska Constitution, Art. 1, §22. This explicit right to privacy has been recognized several times by the Alaska Supreme Court and restricts state action beyond what is allowed under the federal constitution. We explore each below in turn.
The Constitutional Amendments Protecting Privacy
Under the federal constitution, the right to privacy is embedded in the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. The First Amendment protects the right to speak freely, assemble peacefully, and worship according to individual choice. The Third Amendment prohibits the government from forcing individuals to quarter, house, or feed soldiers. The Fourth Amendment prevents the government from unreasonably searching or seizing an individual or an individual’s property. The Fifth and Fourteenth Amendments provide due process of law before the government can deprive an individual of life, liberty, or property. The Ninth Amendment states that rights not explicitly set forth in the Constitution may still exist. Taken together, these penumbral rights indicate that the Constitution was written to erect a barrier between individuals and an overly intrusive and regulatory government. The US Supreme Court has relied upon this federal right to privacy to guarantee the right to use birth control and the right to participate in most consensual sexual relations.
The Right to Contraception
The right to privacy was first established in the US Supreme Court case of Griswold v. Connecticut, 381 U.S. 479 (1965). In Griswold, the defendants, Planned Parenthood employees, were convicted of prescribing birth control as accessories under two Connecticut statutes that criminalized the use of birth control. The Court found the statutes unconstitutional, holding that the First, Third, Fourth, Fifth, and Ninth Amendments created a “penumbra” of unenumerated constitutional rights, including zones of privacy. See id. at 484. The Court stated that marital privacy deserved the utmost protection from governmental intrusion. The Griswold case set the stage for other fundamental privacy rights related to intimacy, including the right to consensual sexual relations.
The Right to Consensual Sexual Relations
In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme Court upheld a Georgia statute that made it a crime to engage in consensual sodomy. See id. at 195-96. The Court stated that there is no fundamental right to engage in sodomy and that the history of protecting marriage and family relationships should not be extended in this fashion. Nearly 20 years later, the Court changed its stance and overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, a Texas statute criminalizing homosexual sodomy was attacked after two men were convicted for having sex in their private bedroom during a law enforcement search for weapons. The Lawrence decision rested on the due process clause of the Fourteenth Amendment. The Court held that intimate choices are a form of liberty protected by the due process clause, whether or not consenting individuals are married. The Court thereafter struck down the Texas sodomy statute because it was not justified by a sufficient government interest. See id. at 578.
Example of a Right to Privacy Analysis
States criminalize consensual incest, which is sexual intercourse between family members who cannot legally marry. If an individual challenges a consensual incest statute as unconstitutional under the right to privacy, the court will balance the state’s interest in preventing harm to an infant, such as birth defects, with an individual’s interest in having consensual sexual intercourse with a family member, using strict scrutiny. If the court finds that the government interest compelling, it can uphold the statute as long as it is not vague or overbroad.
Alaska Right to Privacy
As noted, the right to privacy is an explicitly enumerated right under the Alaska Constitution and thus is considered fundamental. Similar to the federal constitution, the Alaska Supreme Court will only uphold a government regulation if the State can articulate a compelling state interest that justifies infringing the right. The state must also demonstrate that no less restrictive means exist that advance the state’s interest. This is an extremely high burden by design. But where the US Supreme Court has been vague as to what the right to privacy protects, the Alaska Supreme Court has been clear. The Alaska right to privacy contains two separate protections: (1) the right to personal autonomy, and (2) the right to shield personal information from public disclosure. See Doe v. Department of Public Safety, 444 P.3d 116, 126 (Alaska 2019).
The right to personal autonomy protects the right to make personal choices relating to one’s own personal life. For example, the right of adults to use marijuana in the privacy of one’s own home implicates the right to personal autonomy. See Ravinv. State, 494, 500 (Alaska 1975). Likewise, reproductive rights, including the right to abortion, are fundamental rights, included within Alaska’s right to privacy. See Valley Hosp. Assoc., Inc. v. Mat-Su Coalition for Choice, 948 P.2d 963, 969 (Alaska 1997). Laws that seek to criminalize such conduct are unconstitutional and unenforceable under the state constitution.
The second privacy protection – the right to shield personal information from public disclosure – protects sensitive personal information which could cause anxiety, humiliation, or harassment if it was disclosed. For example, police officers have a legitimate expectation of privacy in their personnel files. See Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990).
Exercise
Answer the following question. Check your answer using the answer key at the end of the chapter.
1. The Alaska Sex Offender Registration Act (ASORA) requires all sex offenders to register with the Alaska Department of Public Safety (i.e., Alaska State Troopers) when released from jail. A sex offender must continually register for either 15 years or life, depending on their conviction. Based on the information provided by the convicted sex offender, DPS makes the information (including name, address, photograph, date of birth, place of employment, and conviction information) available for public viewing and available on the internet. The purpose of the central registry is to protect the public from the high risk of sex offenders reoffending. Does the ASORA violate a convicted sex offender’s right to privacy? You can learn more about the ASORA at www.sor.dps.alaska.gov. Read Doe v. DPS, 444 P.3d 116, 126 (Alaska 2019), to see how the Alaska Supreme Court balanced the competing interests involved. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/03%3A_Constitutional_Protections/3.04%3A_The_Right_to_Privacy.txt |
Although the Second Amendment of the federal constitution specifically references a right to “keep and bear arms,” the US Supreme Court provided little guidance as to its meaning until recently. The Second Amendment provides “[a] well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” The Alaska Constitution contains a similar provision. Alaska Const. Art. 1, §19.
In 2008, the US Supreme Court explored the meaning of the Second Amendment and its effect on the personal possession of firearms and gun control statutes. See District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the US Supreme Court affirmed the lower court’s decision of striking down provisions of the Firearms Control Regulations Act of 1975. The Court struck the portions that banned the possession of handguns and mandated that all legal firearms be kept unloaded and disassembled while in the home. See id. at 635. Although the District of Columbia argued that the Second Amendment only applies to the militia, the US Supreme Court emphasized that the Second Amendment is an individual right and is not subject to complete governmental regulation. The Court grounded its analysis in the inherent right of self-defense, noting that self-defense is a central component of the Second Amendment and a part of the fabric of our nation. Seeid. at 628.
Although monumental, the Heller ruling is also narrow. The decision specifically recognized that the “right secured by the Second Amendment is not unlimited.” See id. at 626. The Second Amendment does not prohibit firearms restrictions on felons, the mentally ill, possession in or near schools or government buildings, and the commercial sale of firearms. The Heller decision also failed to extend the Second Amendment’s protections to the states (Washington, DC, where the case occurred, is a federal enclave).
Two years later, in McDonald v. Chicago, 561 U.S. 742 (2010), the US Supreme Court reviewed the city of Chicago’s handgun ban. In McDonald, the Court extended the Heller ruling to the states, holding that the Second Amendment applies to the states via selective incorporation. However, McDonald reemphasized the Heller exceptions of firearms restrictions on felons, the mentally ill, possession in or near schools or government buildings, and the commercial sale of firearms.
Example of an Appropriate Restriction on Firearms
Dirk is a public middle school janitor. Occasionally, with the permission of the principal, Dirk stays overnight in an outbuilding on campus when he works a particularly late shift. Dirk wants to keep a handgun in the outbuilding, for protection. If Dirk’s state has a statute prohibiting the possession of a handgun within one mile of any public school, Dirk cannot keep a handgun in the outbuilding, even if he believes it is necessary for self-defense. Heller and McDonald protect an individual’s right to possess a handgun in the home for self-defense. This precedent specifically exempts firearm possession near schools. Unless newer precedent expands the ruling to include firearm possession near schools, the statute in Dirk’s state is constitutional.
Lapitre v. State, 233 P.3d 1125 (Alaska App. 2010)
In the following case, the Alaska Court of Appeals addresses Alaska’s felon-in-possession criminal statute post-Heller.
233 P.3d 1125
Court of Appeals of Alaska.
Steve Claudy LAPITRE, Appellant,
v.
STATE of Alaska, Appellee.
No. A–9973.
June 18, 2010.
BOLGER, Judge.
Steve Claudy Lapitre appeals his conviction of misconduct involving weapons, contending that [… Alaska’s] felon-in-possession statute is unconstitutional[.]
Background
Anchorage Police Sergeant Christopher Sims observed a vehicle driving erratically and broadcast an alert. Police Captain William Miller pulled the vehicle over, asked Lapitre for his license and registration, and then handed over the stop to the control of Officer Arthur Anderson. Upon a search of the vehicle, Anderson found a loaded nine-millimeter Glock handgun under some papers on the floor of the front passenger seat.
[…]
The Constitutionality of the Felon–In–Possession Statute
Lapitre was convicted of third-degree misconduct involving a weapon for being a felon in possession of a handgun. He now argues that this statute is unconstitutional under several provisions of the federal and Alaska constitutions because it prohibits all felons from possessing handguns and does not distinguish those likely to reoffend….
Following Lapitre’s 2007 conviction, the United States Supreme Court held that the Second Amendment protects an individual’s right to bear arms [in D.C. v. Heller, 554 U.S. 570 (2008)]. But the Court specifically limited the application of its holding as applied to convicted felons, noting: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”
Based on this limitation, the federal circuits considering the issue have held that the federal statute prohibiting a felon from possessing a firearm is consistent with the constitutional right to bear arms. [internal citations omitted]. These cases suggest that even if the Second Amendment restricts inconsistent state laws, it does not invalidate the Alaska felon-in-possession statute.
[…]
An individual’s right to bear arms is also protected by a 1994 amendment to the Alaska Constitution. But in Wilson v. State, [207 P.3d 565 (Alaska App. 2009)] we held that the felon-in-possession statute is consistent with this individual right to bear arms. [Lapitre also argues that the felon-in-possession statute impermissibly discriminates since it prohibits non-violent felons from possessing firearms.] […] [But], it is not at all obvious that Lapitre may challenge the statute as applied to nonviolent felons. Lapitre has a lengthy history of gun violence. At this point, Lapitre cannot reasonably argue that he should be allowed to possess a handgun: he is a violent felony offender who is likely to commit further violent offenses.
In conclusion, Lapitre … has not shown that the felon-in-possession statute is unconstitutional. We therefore AFFIRM the superior court’s judgment.
Figure 3.7 The Second Amendment
Exercises
Answer the following questions. Check your answer using the answer key at the end of the chapter.
1. Anchorage Police Officer Mark Rober made a routine traffic stop of a car driven by Steve Allen in Anchorage. During the traffic stop, Rober discovered that Allen was in possession of a loaded .45 revolver and that Allen had previously been convicted of a felony – theft in the second degree, a non-violent felony. Allen explains that his prior felony was for fraudulently obtaining unemployment benefits. Allen is 67-year-old and lives in a cabin on a homestead. Allen lives a subsistence lifestyle and needs the handgun for personal protection. Nonetheless, Officer Rober charges Allen with being a felon-in-possession (AS 11.61.200(a)(1)). Allen wants to challenge the constitutionality of the statute; Allen wants to assert the statute is unconstitutional under both the U.S. Constitution and Alaska Constitution since the statute does not differentiate between violent and non-violent felons. Will Allen be successful? Explain why or why not?
2. Assume that a state court order forbids the defendant (a certified police officer) from possessing a handgun while on felony probation. The defendant wishes to resume their career as a police officer, but the state court order makes it impossible. Assume the state court order is challenged in federal court. How will the state court order be analyzed under recent US Supreme Court precedent interpreting the Second Amendment? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/03%3A_Constitutional_Protections/3.05%3A_The_Right_to_Bear_Arms.txt |
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