Judgement CIVIL APPELLATE JURISDICTION Civil Appeal No. 9 of 2009 (Arising out of Special Leave Petition (Civil) NO.6979 of 2006) Baljit Singh ...Appellant Improvement Trust Ludhiana & Anr. ...Respondents
ALTAMAS KABIR,J.
1. Leave granted.
2. Can a person who is a transferee of a plot of land allotted to the transferor by the Improvement Trust, Ludhiana, claim a right to 2 continue with such allotment even after the same is cancelled, particularly when such transfer was effected with the approval of the Trust, is the question for consideration in the instant appeal.
3. There is no dispute that on 28th October, 1982, one Smt. Shammi Verma was allotted plot No.94-D in the Development Scheme of 256 Acres at Balmik Nagar, Ludhiana, under Memo No.9913 dated 26th October, 1982 issued by the Improvement Trust, Ludhiana. Although, Smt.
Verma deposited the amounts which were required to be paid against such allotment, she was informed by the respondent No.1 by its letter dated 2nd January, 1989, that the Trust was unable to make over possession of the plot to her. Subsequently, Smt. Verma was allotted another plot, being No.91-B and an agreement to sell was also executed in her favour.
3
4. On 11th May, 1989, the appellant herein acquired the said plot No.91-B from Smt. Verma and such transfer was also permitted by the Trust. Surprisingly, however, three months later on 14th August, 1989, when the appellant applied for approval of the site plan submitted by him, he came to learn that the allotment of plot No.91-B in favour of Smt. Shammi Verma had been cancelled on the ground that such allotment had been made by one Shri S.S. Mann, who was not competent to make such allotment.
The appellant allegedly made various representations to the respondent Trust and also to the Government and on consideration thereof the Trust was directed by the Government to restore the plot in question to the appellant and consequently the allotment in favour of Smt. Verma stood restored. It is the case of the appellant that since the interest of Smt. Verma devolved upon him as her approved transferee, possession of plot No.91-B ought to have been made over to him.
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5. However, since the appellant was unable to obtain any relief from the respondents, he filed Civil Writ Petition No.17103 of 2003 before the High Court seeking directions upon the respondents to allot any alternative plot to the appellant in lieu of plot No.94-D in Balmik Nagar, Ludhiana. While disposing of the writ petition on 31st October, 2003, the High Court directed the respondents to pass an appropriate speaking order on the appellant's representation within four months from the date of the order upon production of a certified copy thereof. Pursuant to the said directions, the Chairman of the Trust heard the appellant on 11th February, 2004, but rejected his claim on the ground that although the plot in question had been allotted to Smt. Shammi Verma as a Local Displaced Person, she was not the owner of any portion of the land acquired by the Trust and was not a Displaced Person, which was the eligibility criteria for coming under 5 the Scheme. Even the subsequent change in the allotment was effected by an officer who was neither authorized nor entitled to do so.
6. The decision of the Chairman of the Trust was challenged by the appellant in Writ Petition No.11844 of 2004, wherein various reliefs were prayed for and in particular for restoration of plot No.91-B, Rajguru Nagar, Ludhiana. On being served with notice, the respondents herein filed their written statement on 23rd December, 2005, claiming that since the predecessor-in-interest of the appellant was ineligible for allotment of the plot in her name, the appellant could not get a better right than she enjoyed in respect of plot No.91-B subsequently offered to her in lieu of plot No.94-D.
7. The High Court dismissed the writ petition by holding that the appellant did not have any 6 independent right in the plot and as a transferee his fortunes depended on the fortunes of the transferor. The High Court having dismissed the civil writ petition, any claim made by the appellant either over plot No.94-D or plot No.94-B also stood rejected.
However, according to the appellant, since a mistake had been committed by the respondents themselves at the initial stage and various transactions had already taken place in respect of the plot in question, the cancellation of the allotment which stood transferred to the appellant with the permission of the Trust and its authorities, was unacceptable. However, as indicated hereinbefore, the said argument did not find favour with the High Court, which dismissed the writ petition, which has given rise to the present appeal.
8. On behalf of the appellant it was urged that the transfer effected in his favour with the approval of the Trust created an interest in 7 the plot in his favour which was independent of and not dependent on the allotment made in favour of Smt. Shammi Verma. It was urged that after the transfer was effected in his name on 11th May, 1989, a fresh right accrued in the appellant's favour and Smt. Verma ceased to have any interest in the plot thereafter and, in any event, she had no subsisting right in the plot on 14th August, 1989, when the allotment was cancelled.
9. It was also urged that the amounts deposited for allotment of the plot had yet to be refunded and if the respondents were determined to re-allot the plot on fresh terms, the appellant was willing to pay any additional amount that might be imposed to retain the plot or even for a fresh allotment in his name, in the special facts of the case.
10. The submissions made on behalf of the appellant were vehemently opposed on behalf of the 8 respondents and on their behalf it was maintained that since the predecessor-in- interest of the appellant, Smt. Shammi Verma, was not eligible for allotment of any plot under the Scheme, the allotment had been rightly terminated and the appellant could not derive any right thereto on account of the transfer made in his favour. According to the respondents, the appellant would have to sink or swim with the fortunes of his transferor as no independent right had been acquired by him by virtue of such transfer.
11. Having considered the submissions made on behalf of the respective parties and the materials on record, we are unable to accept the case as made out on behalf of the appellant. We agree with the Chairman of the Trust that notwithstanding the fact that the transfer of the plot in favour of the appellant had been duly approved by the Trust, the appellant did not acquire any independent right 9 in the plot and he only acquired whatever rights the transferor or the original allottee had therein. The position may have been different if after the transfer a fresh allotment had been made in favour of the appellant. The defect in the allotment made in Smt. Shammi Verma's favour, on account of her ineligibility to avail of the Scheme for rehabilitation of Locally Displaced Persons, was inherited by the appellant as her transferee. The view taken by the Chairman of the Trust in his order dated 11th February, 2004 and affirmed by the High Court, cannot be faulted. However, since the transfer was effected in the appellant's favour with the approval of the Trust before the allotment was cancelled, the appellant's case could have been treated differently in the special facts thereof. While the allotment of the plot was made in Smt. Verma's favour on 28th October, 1982, it was after almost seven years that the order of cancellation of such allotment was 10 passed by the Trust, during which period not only had the allotment been altered from one plot to another plot, but even the transfer in favour of the appellant had taken place.
12. We, accordingly, dispose of the appeal by modifying the judgment and order of the High Court dated 30th January, 2006, and the order of the Chairman, Improvement Trust, Ludhiana dated 11th February, 2004, and directing the said Chairman to reconsider the case of the appellant in the light of the submissions made on his behalf that he was willing to pay such additional amount as may be levied for a fresh allotment of the plot in question in his favour, after giving the appellant a reasonable opportunity of being heard, in the event the said plot has not been re-allotted in the meantime. Such consideration must be completed by the Chairman of the Trust within two months from the date of communication of this order and in the event the plot in question has not been re- allotted, the same shall not be re-allotted until a 11 decision is arrived at in terms of the directions given in this order.
13. In the facts of the case, the parties will bear their own costs.
_______________J.
(Altamas Kabir) _______________J.
Saturday, August 29, 2009
TRUPTI K. PATEL & ANR. v. M/S. ROCKLINES CONSTRUCTIONS & ANR.
Judgement CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. OF 2009 (D.No.15761 of 2007) Trupti K. Patel and Anr. ...Appellant(s) Versus M/s. Rocklines Constructions and Anr. ...Respondent(s) O R D E R Delay condoned.
Heard learned counsel for the parties.
By the impugned order, the National Consumer Disputes Redressal Commission (hereinafter referred to as `the National Commission') dismissed the original complaints as, in its opinion, the complainants were not "consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 (for short, `the Act') and Respondent No.1 was not a "service provider" within the meaning of Section 2(1)(o) of the Act. The point raised in this case is concluded by the judgment of this case in Faqir Chand Gulati vs. Uppal Agencies Private Limited and Another [2008 (10) SCC 345] in which this Court dealt with a case similar to that of the appellants and held that complaint is maintainable.
....2/- -2- In view of this, the appeals are allowed, impugned order is set aside and the matter is remitted to the National Commission for disposal of the complaints in accordance with law after giving opportunity of hearing to the parties.
As the complaint petitions were filed in the years 1998 and 1999, the National Commission is requested to dispose of the matter as expeditiously as possible.
......................J.
[B.N. AGRAWAL] ......................J.
[G.S. SINGHVI] New Delhi, January 05, 2009.
Heard learned counsel for the parties.
By the impugned order, the National Consumer Disputes Redressal Commission (hereinafter referred to as `the National Commission') dismissed the original complaints as, in its opinion, the complainants were not "consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 (for short, `the Act') and Respondent No.1 was not a "service provider" within the meaning of Section 2(1)(o) of the Act. The point raised in this case is concluded by the judgment of this case in Faqir Chand Gulati vs. Uppal Agencies Private Limited and Another [2008 (10) SCC 345] in which this Court dealt with a case similar to that of the appellants and held that complaint is maintainable.
....2/- -2- In view of this, the appeals are allowed, impugned order is set aside and the matter is remitted to the National Commission for disposal of the complaints in accordance with law after giving opportunity of hearing to the parties.
As the complaint petitions were filed in the years 1998 and 1999, the National Commission is requested to dispose of the matter as expeditiously as possible.
......................J.
[B.N. AGRAWAL] ......................J.
[G.S. SINGHVI] New Delhi, January 05, 2009.
ORISSA ELECTRICITY REGULATORY COMMN. v. WESTERN ELECT.COMPANY OF ORISSA LTD.&ORS
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.946 OF 2007 Orissa Electricity Regulatory Commission ...Appellant(s) Versus Western Electricity Company of Orissa Limited and Ors. ...Respondent(s) With Civil Appeal No.2309 of 2007 O R D E R Civil Appeal No.946 of 2007:
By an order dated 27th January, 2006, Orissa Electricity Regulatory Commission (for short `the Regulatory Commission') directed issue of notice to the respondents under proviso to Section 24(1) of the Electricity Act, 2003 (for short `the Act'), requiring them to file representations against proposed suspension of their licences. Simultaneously, the Regulatory Commission appointed three special officers to over see working of the respondents. The appeals filed by the respondents against that order were allowed by the Appellate Tribunal for Electricity (for short `the Appellate Tribunal') vide its order dated 13th December, 2006. The Appellate Tribunal set aside the order impugned in the appeals but observed that if the Regulatory Commission proposes to continue or initiate fresh action under Section 24 of the Act, then it shall do so strictly in accordance with the relevant statutory provisions and follow the procedure prescribed therein.
...2/- -2- We have heard the learned counsel for the parties and perused the record.
In our view, in the facts and circumstances of the case, the Regulatory Commission was justified in issuing notice to the respondents calling upon them to file representations against proposed suspension of their licences, but there was no warrant for appointment of special officers to over see their work. Therefore, the Appellate Tribunal had rightly annulled the appointment of the special officers.
However, it could not have set aside the order of the Regulatory Commission in its entirety without properly appreciating that only show cause notice had been issued to the respondents and final order was yet to be passed by the Regulatory Commission.
Accordingly, the appeal is allowed in-part. The impugned order of the Appellate Tribunal is quashed so far as it annuls the show cause notice issued by the Regulatory Commission under Section 24(1) of the Act. Now, it would be open to the respondents to file their representations/ objections before the Regulatory Commission, which shall proceed to decide the matter in accordance with law without being influenced by the observations made in the order impugned in these appeals.
Needless to say that we have not gone to the question as to whether while issuing notice under Section 24(1) of the Act proposing suspension of the licence, the Regulatory Commission could pass an order for appointment of special officer and this question is left to be decided in appropriate case.
...3/- -3- Civil Appeal No.2309 of 2007:
In view of the order passed in Civil Appeal No.946 of 2007, it is not necessary to pass any further order in this appeal, but we clarify that any observation made against the appellants in the impugned order shall not prejudice their cause before the Regulatory Commission.
......................J.
[B.N. AGRAWAL] ......................J.
[G.S. SINGHVI] New Delhi, January 05, 2009.
By an order dated 27th January, 2006, Orissa Electricity Regulatory Commission (for short `the Regulatory Commission') directed issue of notice to the respondents under proviso to Section 24(1) of the Electricity Act, 2003 (for short `the Act'), requiring them to file representations against proposed suspension of their licences. Simultaneously, the Regulatory Commission appointed three special officers to over see working of the respondents. The appeals filed by the respondents against that order were allowed by the Appellate Tribunal for Electricity (for short `the Appellate Tribunal') vide its order dated 13th December, 2006. The Appellate Tribunal set aside the order impugned in the appeals but observed that if the Regulatory Commission proposes to continue or initiate fresh action under Section 24 of the Act, then it shall do so strictly in accordance with the relevant statutory provisions and follow the procedure prescribed therein.
...2/- -2- We have heard the learned counsel for the parties and perused the record.
In our view, in the facts and circumstances of the case, the Regulatory Commission was justified in issuing notice to the respondents calling upon them to file representations against proposed suspension of their licences, but there was no warrant for appointment of special officers to over see their work. Therefore, the Appellate Tribunal had rightly annulled the appointment of the special officers.
However, it could not have set aside the order of the Regulatory Commission in its entirety without properly appreciating that only show cause notice had been issued to the respondents and final order was yet to be passed by the Regulatory Commission.
Accordingly, the appeal is allowed in-part. The impugned order of the Appellate Tribunal is quashed so far as it annuls the show cause notice issued by the Regulatory Commission under Section 24(1) of the Act. Now, it would be open to the respondents to file their representations/ objections before the Regulatory Commission, which shall proceed to decide the matter in accordance with law without being influenced by the observations made in the order impugned in these appeals.
Needless to say that we have not gone to the question as to whether while issuing notice under Section 24(1) of the Act proposing suspension of the licence, the Regulatory Commission could pass an order for appointment of special officer and this question is left to be decided in appropriate case.
...3/- -3- Civil Appeal No.2309 of 2007:
In view of the order passed in Civil Appeal No.946 of 2007, it is not necessary to pass any further order in this appeal, but we clarify that any observation made against the appellants in the impugned order shall not prejudice their cause before the Regulatory Commission.
......................J.
[B.N. AGRAWAL] ......................J.
[G.S. SINGHVI] New Delhi, January 05, 2009.
MANOJ MENON v. E.K.ABDUL HAMMED AND ORS.
ORDER Leave granted.
Having heard the learned counsel for the parties, although we agree that the impugned judgment passed by the High Court suffers from no legal infirmity, but in the peculiar facts and circumstances of this case and, particularly, we having been taken through the entire records by the learned counsel for the parties, are of the opinion that the appellant may be given an opportunity before the High Court to argue the matter on merit of the appeal.
We make it clear that we have passed this order keeping in view the peculiar facts and circumstances of this case and, in particular, the relationship between the appellant, on the one hand, and the defendant No.2 and defendant No.3, on the other. We further make it clear that -2- we are passing this order in exercise of our discretionary jurisdiction under Article 142 of the Constitution of India with a view to do complete justice to the parties.
As a sum of Rs. 50 thousands has been deposited by the appellant in terms of the order passed by this Court on 3.4.2006, which amount, admittedly, has been withdrawn by the plaintiff-respondent No. 1, we are of the opinion that the said amount may be treated to be the costs payable by the appellant for the purpose condonation of delay.
The appellant, however, shall pay a further sum of Rs. 25 thousands to the plaintiff-respondent No.1 by way of costs of this appeal.
We would request the High Court to consider the desirability of disposing of the appeal as expeditiously as possible and preferably within a period of six weeks from the date of receipt of a copy of this order.
The appeal is disposed of with the aforementioned observation and direction.
..........................J (S.B. SINHA) ..........................J (V.S. SIRPURKAR) NEW DELHI, JANUARY 5, 2009.
Having heard the learned counsel for the parties, although we agree that the impugned judgment passed by the High Court suffers from no legal infirmity, but in the peculiar facts and circumstances of this case and, particularly, we having been taken through the entire records by the learned counsel for the parties, are of the opinion that the appellant may be given an opportunity before the High Court to argue the matter on merit of the appeal.
We make it clear that we have passed this order keeping in view the peculiar facts and circumstances of this case and, in particular, the relationship between the appellant, on the one hand, and the defendant No.2 and defendant No.3, on the other. We further make it clear that -2- we are passing this order in exercise of our discretionary jurisdiction under Article 142 of the Constitution of India with a view to do complete justice to the parties.
As a sum of Rs. 50 thousands has been deposited by the appellant in terms of the order passed by this Court on 3.4.2006, which amount, admittedly, has been withdrawn by the plaintiff-respondent No. 1, we are of the opinion that the said amount may be treated to be the costs payable by the appellant for the purpose condonation of delay.
The appellant, however, shall pay a further sum of Rs. 25 thousands to the plaintiff-respondent No.1 by way of costs of this appeal.
We would request the High Court to consider the desirability of disposing of the appeal as expeditiously as possible and preferably within a period of six weeks from the date of receipt of a copy of this order.
The appeal is disposed of with the aforementioned observation and direction.
..........................J (S.B. SINHA) ..........................J (V.S. SIRPURKAR) NEW DELHI, JANUARY 5, 2009.
M/S. CROSS COUNTRY HOTELS LTD. v. TOURISM FINANCE CORPN.OF INDIA LTD.&ORS.
Having heard Mr. Altaf Ahmed, learned senior counsel appearing on behalf of the appellant and Mr. Dushyant Dave, learned senior counsel appearing on behalf of the respondents, with the consent of the parties, this appeal is disposed of with the following directions:
1. Respondents herein need not supply the appraisal reports for various projects of the appellant company.
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2. The respondents herein shall produce for inspection of the learned counsel for the appellant, within four weeks, all other documents wherefor an application for production and discovery had been filed before the learned Debt Recovery Tribunal, New Delhi, being I.A. No. 186/2003.
3. It is directed that all such documents which are available with the respondents-Corporation shall be supplied to the appellant within two weeks thereafter.
Keeping in view the fact that the matter is pending for a long time, the Debt Recovery Tribunal is requested to dispose of the matter as expeditiously as possible.
With the aforementioned direction, the impugned judgment is set aside and the appeal is disposed of.
CIVIL APPEAL NO. 51/2009 [@ SLP(C) No.26738/2008] Leave granted.
This appeal is directed against the judgment and order dated 24th October, 2008 passed by a learned Single Judge of the High Court of Judicature of Rajasthan at Jaipur, in S.B. Civil Writ Petition No. 9609/2008, whereby and whereunder it was directed:
-3- "Meanwhile, operation of the office order dated 14.8.2008 (Anx.4) and 19.8.2008 (Anx.5) shall remain stayed. Further, in case the petitioner submits the notorised undertaking within a period of fifteen days from today, for payment of Rs. 10 lacs (Rupees ten lacs) per month for a period of one year, then the possession of the seized property shall be restored to the petitioner on depositing first installment of Rs. 10 lacs.
The remaining installments shall be paid by the 15th of each month, failing which the interim order shall stand vacated automatically without reference to this Court.
List in the month of December, 2008 for further orders."
In view of the order proposed to be passed by us we need not enter into the merit of the matter as the order as quoted above was passed ex-parte.
Mr. Dave, learned senior counsel appearing on behalf of the appellant submits that the possession of the Hotel in question had already been taken over on 22.8.2008.
Mr. Altaf Ahmed, learned senior counsel on the other hand, submits that the orders impugned before the High Court, being office orders dated 14.8.2008 and dated 19.8.2008, the said orders are ex-facie illegal and without jurisdiction and, furthermore, as the possession had been obtained by the -4- writ petitioner purportedly to be in terms of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and in that view of the matter the High Court cannot be said to have committed any error in passing the impugned order.
Be that as it may, by reason of the impugned judgment, the High Court has passed the ex-parte order in mandatory form.
By an order dated 25.11.2008, a Division Bench of this Court while issuing notice, directed status quo as on that date, to be maintained by all concerned. In that view of the matter, we are of the opinion that interest of justice would be subserved if the impugned judgment is set aside and the High Court be requested to hear out the matter afresh, after giving an opportunity of hearing to both the parties. It is directed accordingly.
While making the interim order dated 25.11.2008 passed by this Court absolute, we would request the High Court to hear out the parties and pass appropriate order as expeditiously as possible, preferably within a period of three weeks from the date of communication of this order.
-5- With the aforementioned observation and direction, this appeal is disposed of.
..........................J (S.B. SINHA) ..........................J (V.S. SIRPURKAR) NEW DELHI, JANUARY 5, 2009.
1. Respondents herein need not supply the appraisal reports for various projects of the appellant company.
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2. The respondents herein shall produce for inspection of the learned counsel for the appellant, within four weeks, all other documents wherefor an application for production and discovery had been filed before the learned Debt Recovery Tribunal, New Delhi, being I.A. No. 186/2003.
3. It is directed that all such documents which are available with the respondents-Corporation shall be supplied to the appellant within two weeks thereafter.
Keeping in view the fact that the matter is pending for a long time, the Debt Recovery Tribunal is requested to dispose of the matter as expeditiously as possible.
With the aforementioned direction, the impugned judgment is set aside and the appeal is disposed of.
CIVIL APPEAL NO. 51/2009 [@ SLP(C) No.26738/2008] Leave granted.
This appeal is directed against the judgment and order dated 24th October, 2008 passed by a learned Single Judge of the High Court of Judicature of Rajasthan at Jaipur, in S.B. Civil Writ Petition No. 9609/2008, whereby and whereunder it was directed:
-3- "Meanwhile, operation of the office order dated 14.8.2008 (Anx.4) and 19.8.2008 (Anx.5) shall remain stayed. Further, in case the petitioner submits the notorised undertaking within a period of fifteen days from today, for payment of Rs. 10 lacs (Rupees ten lacs) per month for a period of one year, then the possession of the seized property shall be restored to the petitioner on depositing first installment of Rs. 10 lacs.
The remaining installments shall be paid by the 15th of each month, failing which the interim order shall stand vacated automatically without reference to this Court.
List in the month of December, 2008 for further orders."
In view of the order proposed to be passed by us we need not enter into the merit of the matter as the order as quoted above was passed ex-parte.
Mr. Dave, learned senior counsel appearing on behalf of the appellant submits that the possession of the Hotel in question had already been taken over on 22.8.2008.
Mr. Altaf Ahmed, learned senior counsel on the other hand, submits that the orders impugned before the High Court, being office orders dated 14.8.2008 and dated 19.8.2008, the said orders are ex-facie illegal and without jurisdiction and, furthermore, as the possession had been obtained by the -4- writ petitioner purportedly to be in terms of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and in that view of the matter the High Court cannot be said to have committed any error in passing the impugned order.
Be that as it may, by reason of the impugned judgment, the High Court has passed the ex-parte order in mandatory form.
By an order dated 25.11.2008, a Division Bench of this Court while issuing notice, directed status quo as on that date, to be maintained by all concerned. In that view of the matter, we are of the opinion that interest of justice would be subserved if the impugned judgment is set aside and the High Court be requested to hear out the matter afresh, after giving an opportunity of hearing to both the parties. It is directed accordingly.
While making the interim order dated 25.11.2008 passed by this Court absolute, we would request the High Court to hear out the parties and pass appropriate order as expeditiously as possible, preferably within a period of three weeks from the date of communication of this order.
-5- With the aforementioned observation and direction, this appeal is disposed of.
..........................J (S.B. SINHA) ..........................J (V.S. SIRPURKAR) NEW DELHI, JANUARY 5, 2009.
KAILASH NATH TRIPATHI v. KEDARNATH TEWARI & ORS.
Leave granted.
By the impugned order, the High Court dismissed the second appeal on the ground that no substantial question of law is involved therein.
Having heard learned counsel for the parties and perused the records, we are of the opinion that the High Court was not justified in dismissing the second appeal on the ground that no substantial question of law was involved therein. In our view, the following substantial questions of law do arise in the second appeal before the High Court:
"[a] Whether the statement made by an advocate appearing on behalf of the plaintiff under Order X Rule 2 of the Code of Civil Procedure, 1908, could be treated to be an admission by the party?;
[b] Whether the finding of fact recorded by the First Appellate Court to the effect that passage from `Gha' to `Cha' in the map prepared by the Amin could not be treated as a public road as the passage ends at the `Ghari' [cattle shed] of the plaintiff was vitiated in law?"
...2/- -2- Accordingly, the appeal is allowed, impugned order rendered by the High Court is set aside and the matter is remitted to it for fresh disposal of the second appeal in accordance with law. Upon remand, the High Court shall issue notice to the respondents in the appeal and formulate aforesaid substantial questions of law.
It would be open to the High Court to formulate any other substantial question of law which it deems fit and proper.
......................J.
[B.N. AGRAWAL] ......................J.
[G.S. SINGHVI] New Delhi, January 05, 2009.
By the impugned order, the High Court dismissed the second appeal on the ground that no substantial question of law is involved therein.
Having heard learned counsel for the parties and perused the records, we are of the opinion that the High Court was not justified in dismissing the second appeal on the ground that no substantial question of law was involved therein. In our view, the following substantial questions of law do arise in the second appeal before the High Court:
"[a] Whether the statement made by an advocate appearing on behalf of the plaintiff under Order X Rule 2 of the Code of Civil Procedure, 1908, could be treated to be an admission by the party?;
[b] Whether the finding of fact recorded by the First Appellate Court to the effect that passage from `Gha' to `Cha' in the map prepared by the Amin could not be treated as a public road as the passage ends at the `Ghari' [cattle shed] of the plaintiff was vitiated in law?"
...2/- -2- Accordingly, the appeal is allowed, impugned order rendered by the High Court is set aside and the matter is remitted to it for fresh disposal of the second appeal in accordance with law. Upon remand, the High Court shall issue notice to the respondents in the appeal and formulate aforesaid substantial questions of law.
It would be open to the High Court to formulate any other substantial question of law which it deems fit and proper.
......................J.
[B.N. AGRAWAL] ......................J.
[G.S. SINGHVI] New Delhi, January 05, 2009.
ADMN.OFFICER,MUNIC.SCHOOL BOARD,KAGAL v. K.T.K.K.S.& S.MANDAL & ORS.
Leave granted.
2. The appellant is the Municipal School Board, Kagal, ('the Board', for short).
Sant Rohidas Vidyamandir, the fourth respondent, is one of the schools run by the Board. The said school, which was running classes from first to fourth standards, started fifth standard classes (Standard V Division) from the session 2007-2008. The first respondent, which runs a secondary school (V Standard to X Standard) in the Zila Parishad area adjoining the municipal area, filed W.P. No.8261/2007 seeking a direction to the State of Maharashtra, the appellant and the Deputy Director of Education, Kolhapur Region to close down the V Standard started in the fourth respondent school and a further direction not to grant any recognition or permission to the fourth respondent school to start Standard V Division. They also sought an interim direction restraining the fourth .......2.
-2- respondent school from running or continuing the V Standard classes. The first respondent contended that starting of the V Standard classes by the fourth respondent school was unauthorised and illegal.
3. In the said writ petition, the High Court, while issuing rule on 8.4.2008 issued an interim direction to the fourth respondent to close down the V Standard and transfer the students of V Standard to other schools as per the desire of the students and their guardians, and issue school leaving certificates to the students to enable them to get admissions in other authorised schools. The Deputy Director of Education and the petitioner were also directed by way of interim order to ensure that the V Standard classes opened by the fourth respondent was closed down and the students were transferred to other schools. The said interim order is challenged by the appellant Board which runs the fourth respondent school.
4. We find that the High Court has virtually allowed the writ petition by the interim order, that too by an irreversible peremptory direction that the students be shifted to other schools. The students were not parties before the High Court and they have been asked to take school leaving certificates from the fourth respondent school and shift to other schools. Such a peremptory irreversible step should not normally have been granted by way of interim relief, unless ......3.
-3- extraordinary or special circumstances exist. We find that there are no such special circumstances.
5. Learned counsel for the first respondent submitted that the fourth respondent was one of the feeder schools for the first respondent school, and if the fourth respondent runs classes from V Standard onwards, their admission will be affected. This contention, we are afraid, is not sound. The question is not whether first respondent is affected, but whether fourth respondent was doing something which was illegal and whether the first respondent had any right to complain.
6. Primary education is defined in Section 2(15) of the Bombay Primary Education Act, 1947 as meaning education in such subjects and upto such standards, as may be determined by the State Government from time to time. Primary education, therefore, does not mean education from first to fourth standards only, as contended by the first respondent.
7. The State Government has, in its counter filed before the High Court, clearly stated that as per the provisions of the Mumbai Primary Education Rule 1949 the Primary Education Boards of Municipal Council are empowered to open standards as natural growth in the primary schools being run by them, that ........4.
-4- the Primary Education Board had opened the V Standard classes in the fourth respondent school in pursuance of such natural growth and that no permission was required to open V Standard classes as natural growth in schools run by Municipal Board. It was further categorically stated that the Board was authorised to open V Standard as natural growth in the fourth respondent school and that was not unauthorised or illegal. We may also refer to the Government Resolution dated 14.11.1979 of the State Government relied on by the first respondent itself which says that classes V to VII may either be annexed to secondary schools or to primary schools run by local bodies. If that is so, primary schools run by Boards, prima facie, can run classes V to VII. Be that as it may. All that we are pointing out is there was absolutely no basis for the High Court at the stage of admission of the writ petition filed by the first respondent to assume that the starting of V Standard by the fourth respondent school was unauthorised or illegal and direct closure by way of interim relief.
8. We, therefore, allow this appeal, set aside the interim order. The fourth respondent school run by the appellant can, therefore, have V, VI and VII Standards, subject to the final decision in the writ petition. We are told that the issue as to whether Standards V to VII can be part of primary ......5.
-5- schools, is causing considerable confusion in the State. In view of it, we request the High Court to dispose of the Writ Petition expeditiously.
...........................J.
( R.V. RAVEENDRAN ) New Delhi; ...........................J.
2. The appellant is the Municipal School Board, Kagal, ('the Board', for short).
Sant Rohidas Vidyamandir, the fourth respondent, is one of the schools run by the Board. The said school, which was running classes from first to fourth standards, started fifth standard classes (Standard V Division) from the session 2007-2008. The first respondent, which runs a secondary school (V Standard to X Standard) in the Zila Parishad area adjoining the municipal area, filed W.P. No.8261/2007 seeking a direction to the State of Maharashtra, the appellant and the Deputy Director of Education, Kolhapur Region to close down the V Standard started in the fourth respondent school and a further direction not to grant any recognition or permission to the fourth respondent school to start Standard V Division. They also sought an interim direction restraining the fourth .......2.
-2- respondent school from running or continuing the V Standard classes. The first respondent contended that starting of the V Standard classes by the fourth respondent school was unauthorised and illegal.
3. In the said writ petition, the High Court, while issuing rule on 8.4.2008 issued an interim direction to the fourth respondent to close down the V Standard and transfer the students of V Standard to other schools as per the desire of the students and their guardians, and issue school leaving certificates to the students to enable them to get admissions in other authorised schools. The Deputy Director of Education and the petitioner were also directed by way of interim order to ensure that the V Standard classes opened by the fourth respondent was closed down and the students were transferred to other schools. The said interim order is challenged by the appellant Board which runs the fourth respondent school.
4. We find that the High Court has virtually allowed the writ petition by the interim order, that too by an irreversible peremptory direction that the students be shifted to other schools. The students were not parties before the High Court and they have been asked to take school leaving certificates from the fourth respondent school and shift to other schools. Such a peremptory irreversible step should not normally have been granted by way of interim relief, unless ......3.
-3- extraordinary or special circumstances exist. We find that there are no such special circumstances.
5. Learned counsel for the first respondent submitted that the fourth respondent was one of the feeder schools for the first respondent school, and if the fourth respondent runs classes from V Standard onwards, their admission will be affected. This contention, we are afraid, is not sound. The question is not whether first respondent is affected, but whether fourth respondent was doing something which was illegal and whether the first respondent had any right to complain.
6. Primary education is defined in Section 2(15) of the Bombay Primary Education Act, 1947 as meaning education in such subjects and upto such standards, as may be determined by the State Government from time to time. Primary education, therefore, does not mean education from first to fourth standards only, as contended by the first respondent.
7. The State Government has, in its counter filed before the High Court, clearly stated that as per the provisions of the Mumbai Primary Education Rule 1949 the Primary Education Boards of Municipal Council are empowered to open standards as natural growth in the primary schools being run by them, that ........4.
-4- the Primary Education Board had opened the V Standard classes in the fourth respondent school in pursuance of such natural growth and that no permission was required to open V Standard classes as natural growth in schools run by Municipal Board. It was further categorically stated that the Board was authorised to open V Standard as natural growth in the fourth respondent school and that was not unauthorised or illegal. We may also refer to the Government Resolution dated 14.11.1979 of the State Government relied on by the first respondent itself which says that classes V to VII may either be annexed to secondary schools or to primary schools run by local bodies. If that is so, primary schools run by Boards, prima facie, can run classes V to VII. Be that as it may. All that we are pointing out is there was absolutely no basis for the High Court at the stage of admission of the writ petition filed by the first respondent to assume that the starting of V Standard by the fourth respondent school was unauthorised or illegal and direct closure by way of interim relief.
8. We, therefore, allow this appeal, set aside the interim order. The fourth respondent school run by the appellant can, therefore, have V, VI and VII Standards, subject to the final decision in the writ petition. We are told that the issue as to whether Standards V to VII can be part of primary ......5.
-5- schools, is causing considerable confusion in the State. In view of it, we request the High Court to dispose of the Writ Petition expeditiously.
...........................J.
( R.V. RAVEENDRAN ) New Delhi; ...........................J.
STATE OF KERALA & ORS. v. MINI SHAMSUDIN & ANR.
Heard learned counsel for the petitioner.
Delay condoned.
Leave granted.
In view of the decision of the Constitution Bench of this Court in Sunrise Associates vs. Govt. of NCT of Delhi & Ors reported in 2006 (5) SCC 603, we find no merit in this appeal which is accordingly dismissed. It need to be stated that this Court in the said case inter alia held as follows:
"We have noted earlier that all the statutory definitions of the word `goods' in the State Sales Tax Laws have uniformly excluded, inter alia, -2- actionable claims from the definition for the purpose of the Act. Were actionable claims etc., not otherwise includible in the definition of `goods' there was no need for excluding them. In other words, actionable claims are `goods' but not for the purpose of the Sales Tax Acts and but for this statutory exclusion, an actionable claim would be `goods' or the subject matter of ownership. Consequently, an actionable claim is movable property and `goods' in the wider sense of the term but a sale of an actionable claim would not be subject to the sales tax law.
xxxxxx xxxxxx xxxxx A lottery ticket has no value in itself. It is a mere piece of paper. Its value lies in the fact that it represents a chance or a right to a conditional benefit of winning a prize of a greater value than the consideration paid for the transfer of that chance. It is nothing more than a token or evidence of this right. The Court in H.Anraj, as we have seen, held that a lottery ticket is a slip of paper of memoranda evidencing the transfer of certain rights. We agree.
xxxxxxx xxxxxxx xxxxxx -3- The question is, what is this right which the ticket represents? There can be no doubt that on purchasing a lottery ticket, the purchaser would have a claim to a conditional interest in the prize money which is not in the purchaser's possession. The right would fall squarely within the definition of an actionable claim and would therefore be excluded from the definition of `goods' under the Sale of Goods Act and the Sales tax statutes."
....................J.
(Dr. ARIJIT PASAYAT) ...................J.
(ASOK KUMAR GANGULY) New Delhi, February 2, 2009.
Delay condoned.
Leave granted.
In view of the decision of the Constitution Bench of this Court in Sunrise Associates vs. Govt. of NCT of Delhi & Ors reported in 2006 (5) SCC 603, we find no merit in this appeal which is accordingly dismissed. It need to be stated that this Court in the said case inter alia held as follows:
"We have noted earlier that all the statutory definitions of the word `goods' in the State Sales Tax Laws have uniformly excluded, inter alia, -2- actionable claims from the definition for the purpose of the Act. Were actionable claims etc., not otherwise includible in the definition of `goods' there was no need for excluding them. In other words, actionable claims are `goods' but not for the purpose of the Sales Tax Acts and but for this statutory exclusion, an actionable claim would be `goods' or the subject matter of ownership. Consequently, an actionable claim is movable property and `goods' in the wider sense of the term but a sale of an actionable claim would not be subject to the sales tax law.
xxxxxx xxxxxx xxxxx A lottery ticket has no value in itself. It is a mere piece of paper. Its value lies in the fact that it represents a chance or a right to a conditional benefit of winning a prize of a greater value than the consideration paid for the transfer of that chance. It is nothing more than a token or evidence of this right. The Court in H.Anraj, as we have seen, held that a lottery ticket is a slip of paper of memoranda evidencing the transfer of certain rights. We agree.
xxxxxxx xxxxxxx xxxxxx -3- The question is, what is this right which the ticket represents? There can be no doubt that on purchasing a lottery ticket, the purchaser would have a claim to a conditional interest in the prize money which is not in the purchaser's possession. The right would fall squarely within the definition of an actionable claim and would therefore be excluded from the definition of `goods' under the Sale of Goods Act and the Sales tax statutes."
....................J.
(Dr. ARIJIT PASAYAT) ...................J.
(ASOK KUMAR GANGULY) New Delhi, February 2, 2009.
Monday, August 24, 2009
Phillips v. Washington Legal Foundation
SUPREME COURT OF THE UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Under Texas’ Interest on Lawyers Trust Account (IOLTA) program, an attorney who receives client funds must place them in a separate, interest-bearing, federally authorized “NOW” account upon determining that the funds “could not reasonably be expected to earn interest for the client or [that] the interest which might be earned … is not likely to be sufficient to offset the cost of establishing and maintaining the account, service charges, accounting costs and tax reporting costs which would be incurred in attempting to obtain the interest.” IOLTA interest income is paid to the Texas Equal Access to Justice Foundation (TEAJF), which finances legal services for low-income persons. The Internal Revenue Service does not attribute such interest to the individual clients for federal income tax purposes if they have no control over the decision whether to place the funds in the IOLTA account and do not designate who will receive the interest. Respondents-a public-interest organization having Texas members opposed to the IOLTA program, a Texas attorney who regularly deposits client funds in an IOLTA account, and a Texas businessman whose attorney retainer has been so deposited-filed this suit against TEAJF and the other petitioners, alleging, inter alia, that the Texas IOLTA program violated their rights under the Fifth Amendment, which provides that “private property” shall not “be taken for public use, without just compensation.” The District Court granted petitioners summary judgment, reasoning that respondents had no property interest in the IOLTA interest proceeds. The Fifth Circuit reversed, concluding that such interest belongs to the owner of the principal.
Held:
1. Interest earned on client funds held in IOLTA accounts is the “private property” of the client for Takings Clause purposes. The existence of a property interest is determined by reference to existing rules or understandings stemming from an independent source such as state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577. All agree that under Texas law the principal held in IOLTA accounts is the client’s “private property.” Moreover, the general rule that “interest follows principal” applies in Texas. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162. Petitioners’ contention that Webb’s does not control because examples such as income-only trusts and marital community property rules demonstrate that Texas does not, in fact, adhere to the general rule is rejected. These examples miss the point of Webb’s. Their exception by Texas from the “interest follows principal” rule has a firm basis in traditional property law principles, whereas petitioners point to no such principles allowing the owner of funds temporarily deposited in an attorney trust account to be deprived of the interest the funds generates. Petitioners’ further contention that “interest follows principal” in Texas only if it is allowed by law does not assist their cause. They do not argue that Texas law prohibits the payment of interest on IOLTA funds, but, rather, that interest actually “earned” by such funds is not the private property of the principal’s owner. Regardless of whether that owner has a constitutionally cognizable interest in the anticipated generation of interest by his funds, any interest that does accrue attaches as a property right incident to the ownership of the underlying principal. Petitioners’ final argument that the money transferred to the TEAJF is not “private property” because IOLTA funds cannot reasonably be expected to generate interest income on their own is plainly incorrect under Texas’ requirement that client funds be deposited in an IOLTA account “if the interest which might be earned” is insufficient to offset account costs and service charges that would be incurred in obtaining it. It is not that the funds to be placed in IOLTA accounts cannot generate interest, but that they cannot generate net interest. This Court has indicated that a physical item does not lack “property” status simply because it does not have a positive economic or market value. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 437, n. 15. While IOLTA interest income may have no economically realizable value to its owner, its possession, control, and disposition are nonetheless valuable rights. See Hodel v. Irving, 481 U.S. 704, 715. The United States’ argument that “private property” is not implicated here because IOLTA interest income is “government-created value” is factually erroneous: The State does nothing to create value; the value is created by respondents’ funds. The Federal Government, through its banking and taxation regulations, imposes costs on this value if private citizens attempt to exercise control over it. Waiver of these costs if the property is remitted to the State hardly constitutes “government-created value.” In any event, this Court rejected a similar argument in Webb’s, supra, at 162. Pp. 6-14.
2. This Court leaves for consideration on remand the question whether IOLTA funds have been “taken” by the State, as well as the amount of “just compensation,” if any, due respondents. P. 14.
94 F. 3d 996, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Under Texas’ Interest on Lawyers Trust Account (IOLTA) program, an attorney who receives client funds must place them in a separate, interest-bearing, federally authorized “NOW” account upon determining that the funds “could not reasonably be expected to earn interest for the client or [that] the interest which might be earned … is not likely to be sufficient to offset the cost of establishing and maintaining the account, service charges, accounting costs and tax reporting costs which would be incurred in attempting to obtain the interest.” IOLTA interest income is paid to the Texas Equal Access to Justice Foundation (TEAJF), which finances legal services for low-income persons. The Internal Revenue Service does not attribute such interest to the individual clients for federal income tax purposes if they have no control over the decision whether to place the funds in the IOLTA account and do not designate who will receive the interest. Respondents-a public-interest organization having Texas members opposed to the IOLTA program, a Texas attorney who regularly deposits client funds in an IOLTA account, and a Texas businessman whose attorney retainer has been so deposited-filed this suit against TEAJF and the other petitioners, alleging, inter alia, that the Texas IOLTA program violated their rights under the Fifth Amendment, which provides that “private property” shall not “be taken for public use, without just compensation.” The District Court granted petitioners summary judgment, reasoning that respondents had no property interest in the IOLTA interest proceeds. The Fifth Circuit reversed, concluding that such interest belongs to the owner of the principal.
Held:
1. Interest earned on client funds held in IOLTA accounts is the “private property” of the client for Takings Clause purposes. The existence of a property interest is determined by reference to existing rules or understandings stemming from an independent source such as state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577. All agree that under Texas law the principal held in IOLTA accounts is the client’s “private property.” Moreover, the general rule that “interest follows principal” applies in Texas. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162. Petitioners’ contention that Webb’s does not control because examples such as income-only trusts and marital community property rules demonstrate that Texas does not, in fact, adhere to the general rule is rejected. These examples miss the point of Webb’s. Their exception by Texas from the “interest follows principal” rule has a firm basis in traditional property law principles, whereas petitioners point to no such principles allowing the owner of funds temporarily deposited in an attorney trust account to be deprived of the interest the funds generates. Petitioners’ further contention that “interest follows principal” in Texas only if it is allowed by law does not assist their cause. They do not argue that Texas law prohibits the payment of interest on IOLTA funds, but, rather, that interest actually “earned” by such funds is not the private property of the principal’s owner. Regardless of whether that owner has a constitutionally cognizable interest in the anticipated generation of interest by his funds, any interest that does accrue attaches as a property right incident to the ownership of the underlying principal. Petitioners’ final argument that the money transferred to the TEAJF is not “private property” because IOLTA funds cannot reasonably be expected to generate interest income on their own is plainly incorrect under Texas’ requirement that client funds be deposited in an IOLTA account “if the interest which might be earned” is insufficient to offset account costs and service charges that would be incurred in obtaining it. It is not that the funds to be placed in IOLTA accounts cannot generate interest, but that they cannot generate net interest. This Court has indicated that a physical item does not lack “property” status simply because it does not have a positive economic or market value. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 437, n. 15. While IOLTA interest income may have no economically realizable value to its owner, its possession, control, and disposition are nonetheless valuable rights. See Hodel v. Irving, 481 U.S. 704, 715. The United States’ argument that “private property” is not implicated here because IOLTA interest income is “government-created value” is factually erroneous: The State does nothing to create value; the value is created by respondents’ funds. The Federal Government, through its banking and taxation regulations, imposes costs on this value if private citizens attempt to exercise control over it. Waiver of these costs if the property is remitted to the State hardly constitutes “government-created value.” In any event, this Court rejected a similar argument in Webb’s, supra, at 162. Pp. 6-14.
2. This Court leaves for consideration on remand the question whether IOLTA funds have been “taken” by the State, as well as the amount of “just compensation,” if any, due respondents. P. 14.
94 F. 3d 996, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
Nix v. Whiteside
SUPREME COURT OF THE UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
In preparing for his Iowa state court trial on a murder charge, respondent consistently told his attorney that, although he had not actually seen a gun in the victim's hand when he stabbed the victim, he was convinced that the victim had a gun. Respondent's companions who were present during the stabbing told counsel that they had not seen a gun, and no gun was found. Counsel advised respondent that the existence of a gun was not necessary to establish a claim of self-defense, and that only a reasonable belief that the victim had a gun nearby was necessary, even though no gun was actually present. However, during preparation for direct examination shortly before trial, respondent for the first time told counsel that he had seen "something metallic" in the victim's hand. When asked about this, respondent said: "If I don't say I saw a gun, I'm dead." On respondent's insisting that he would testify that he saw "something metallic," counsel told him that, if he testified falsely, it would be counsel's duty to advise the court that he felt respondent was committing perjury, and that counsel probably would be allowed to impeach that testimony and would seek to withdraw from representation if respondent insisted on committing perjury. Respondent ultimately testified as originally contemplated, admitting on cross-examination that he had not actually seen a gun in the victim's hand. After the jury found respondent guilty, respondent moved for a new trial, claiming that he had been deprived of a fair trial by counsel's admonitions not to state that he saw a gun or "something metallic." The court denied the motion after a hearing, and the Iowa Supreme Court affirmed the conviction, holding that counsel's actions were not only permissible, but were required under Iowa law. Respondent then sought federal habeas corpus relief, alleging that he had been denied effective assistance of counsel by his attorney's refusal to allow him to testify as he proposed. The District Court denied relief, but the Court of Appeals reversed, concluding that an intent to commit perjury, communicated to counsel, does not alter a defendant's right to effective assistance of counsel, and that counsel's threatened violation of his client's confidences violated the "effective representation" standards set forth in Strickland v. Washington, 466 U.S. 668. [p158]
Held: The Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial. Pp. 164-176.
(a) Strickland v. Washington, supra, held that, to obtain relief by way of federal habeas corpus on a claim of a deprivation of effective assistance of counsel under the Sixth Amendment, the movant must establish both serious attorney error and prejudice. The Sixth Amendment inquiry is into whether the attorney's conduct was "reasonably effective." A court must be careful not to narrow the wide range of attorney conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct, and thereby intrude into a state's proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts. Pp. 164-166.
(b) Counsel's conduct here fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment. Counsel's duty of loyalty to, and advocacy of, the defendant's cause is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain his client's objectives, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. Moreover, accepted norms require that a lawyer disclose his client's perjury and frauds upon the court. Iowa's Code also expressly permits withdrawal from representation as an appropriate response of an attorney when the client threatens to commit perjury. Pp. 166-171.
(c) The Court of Appeals' holding is not supported by the record, since counsel's action, at most, deprived respondent of his contemplated perjury. Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely, and the right to counsel includes no right to have a lawyer who will cooperate with planned perjury. There was no breach of professional duty in counsel's admonition to respondent that he would disclose respondent's perjury to the court. Pp. 171-175.
(d) As a matter of law, counsel's conduct here cannot establish the prejudice required for relief under the Strickland inquiry. The "conflict of interests" involved was one imposed on the attorney by the client's proposal to commit the crime of fabricating testimony. This is not the kind of conflict of interest that would render the representation constitutionally infirm. Pp. 175-176.
744 F.2d 1323, reversed. [p159]
BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 176. BLACKMUN, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 177. STEVENS, J., filed an opinion concurring in the judgment, post, p. 190.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
In preparing for his Iowa state court trial on a murder charge, respondent consistently told his attorney that, although he had not actually seen a gun in the victim's hand when he stabbed the victim, he was convinced that the victim had a gun. Respondent's companions who were present during the stabbing told counsel that they had not seen a gun, and no gun was found. Counsel advised respondent that the existence of a gun was not necessary to establish a claim of self-defense, and that only a reasonable belief that the victim had a gun nearby was necessary, even though no gun was actually present. However, during preparation for direct examination shortly before trial, respondent for the first time told counsel that he had seen "something metallic" in the victim's hand. When asked about this, respondent said: "If I don't say I saw a gun, I'm dead." On respondent's insisting that he would testify that he saw "something metallic," counsel told him that, if he testified falsely, it would be counsel's duty to advise the court that he felt respondent was committing perjury, and that counsel probably would be allowed to impeach that testimony and would seek to withdraw from representation if respondent insisted on committing perjury. Respondent ultimately testified as originally contemplated, admitting on cross-examination that he had not actually seen a gun in the victim's hand. After the jury found respondent guilty, respondent moved for a new trial, claiming that he had been deprived of a fair trial by counsel's admonitions not to state that he saw a gun or "something metallic." The court denied the motion after a hearing, and the Iowa Supreme Court affirmed the conviction, holding that counsel's actions were not only permissible, but were required under Iowa law. Respondent then sought federal habeas corpus relief, alleging that he had been denied effective assistance of counsel by his attorney's refusal to allow him to testify as he proposed. The District Court denied relief, but the Court of Appeals reversed, concluding that an intent to commit perjury, communicated to counsel, does not alter a defendant's right to effective assistance of counsel, and that counsel's threatened violation of his client's confidences violated the "effective representation" standards set forth in Strickland v. Washington, 466 U.S. 668. [p158]
Held: The Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial. Pp. 164-176.
(a) Strickland v. Washington, supra, held that, to obtain relief by way of federal habeas corpus on a claim of a deprivation of effective assistance of counsel under the Sixth Amendment, the movant must establish both serious attorney error and prejudice. The Sixth Amendment inquiry is into whether the attorney's conduct was "reasonably effective." A court must be careful not to narrow the wide range of attorney conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct, and thereby intrude into a state's proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts. Pp. 164-166.
(b) Counsel's conduct here fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment. Counsel's duty of loyalty to, and advocacy of, the defendant's cause is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain his client's objectives, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. Moreover, accepted norms require that a lawyer disclose his client's perjury and frauds upon the court. Iowa's Code also expressly permits withdrawal from representation as an appropriate response of an attorney when the client threatens to commit perjury. Pp. 166-171.
(c) The Court of Appeals' holding is not supported by the record, since counsel's action, at most, deprived respondent of his contemplated perjury. Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely, and the right to counsel includes no right to have a lawyer who will cooperate with planned perjury. There was no breach of professional duty in counsel's admonition to respondent that he would disclose respondent's perjury to the court. Pp. 171-175.
(d) As a matter of law, counsel's conduct here cannot establish the prejudice required for relief under the Strickland inquiry. The "conflict of interests" involved was one imposed on the attorney by the client's proposal to commit the crime of fabricating testimony. This is not the kind of conflict of interest that would render the representation constitutionally infirm. Pp. 175-176.
744 F.2d 1323, reversed. [p159]
BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 176. BLACKMUN, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 177. STEVENS, J., filed an opinion concurring in the judgment, post, p. 190.
Supreme Court of New Hampshire v. Piper
SUPREME COURT OF THE UNITED STATES
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Appellee, a resident of Vermont, was allowed to take, and passed, the New Hampshire bar examination. But pursuant to Rule 42 of the New Hampshire Supreme Court, which limits bar admission to state residents, she was not permitted to be sworn in. After the New Hampshire Supreme Court denied appellee's request that an exception to the Rule be made in her case, she filed an action in Federal District Court, alleging that Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution. The District Court agreed, and granted appellee's motion for a summary judgment. The Court of Appeals affirmed.
Held: Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2. Pp. 279-288.
(a) Derived, like the Commerce Clause, from the fourth of the Articles of Confederation, the Privileges and Immunities Clause was intended to create a national economic union.
[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.
Toomer v. Witsell, 334 U.S. 385, 396. Moreover, although a lawyer is "an officer of the court," he does not hold a position that can be entrusted only to a "full-fledged member of the political community" and thus is not an "officer" of the State in any political sense. In re Griffiths, 413 U.S. 717. Therefore, a nonresident's interest in practicing law is a "privilege" protected by the Clause. Pp. 279-283.
(b) A State may discriminate against nonresidents only where its reasons are "substantial" and the difference in treatment bears a close or substantial relationship to those reasons. None of the reasons offered by appellant for its refusal to admit nonresidents to the bar -- nonresidents would be less likely to keep abreast of local rules and procedures, to behave ethically, to be available for court proceedings, and to do pro bono and other volunteer work in the State -- meets the test of "substantiality," and the means chosen do not bear the necessary relationship to the State's objectives. Pp. 284-287.
723 F.2d 110, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., [p275] joined. WHITE, J., filed an opinion concurring in the result, post, p. 288. REHNQUIST, J., filed a dissenting opinion, post, p. 289.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Appellee, a resident of Vermont, was allowed to take, and passed, the New Hampshire bar examination. But pursuant to Rule 42 of the New Hampshire Supreme Court, which limits bar admission to state residents, she was not permitted to be sworn in. After the New Hampshire Supreme Court denied appellee's request that an exception to the Rule be made in her case, she filed an action in Federal District Court, alleging that Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2, of the United States Constitution. The District Court agreed, and granted appellee's motion for a summary judgment. The Court of Appeals affirmed.
Held: Rule 42 violates the Privileges and Immunities Clause of Art. IV, § 2. Pp. 279-288.
(a) Derived, like the Commerce Clause, from the fourth of the Articles of Confederation, the Privileges and Immunities Clause was intended to create a national economic union.
[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.
Toomer v. Witsell, 334 U.S. 385, 396. Moreover, although a lawyer is "an officer of the court," he does not hold a position that can be entrusted only to a "full-fledged member of the political community" and thus is not an "officer" of the State in any political sense. In re Griffiths, 413 U.S. 717. Therefore, a nonresident's interest in practicing law is a "privilege" protected by the Clause. Pp. 279-283.
(b) A State may discriminate against nonresidents only where its reasons are "substantial" and the difference in treatment bears a close or substantial relationship to those reasons. None of the reasons offered by appellant for its refusal to admit nonresidents to the bar -- nonresidents would be less likely to keep abreast of local rules and procedures, to behave ethically, to be available for court proceedings, and to do pro bono and other volunteer work in the State -- meets the test of "substantiality," and the means chosen do not bear the necessary relationship to the State's objectives. Pp. 284-287.
723 F.2d 110, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., [p275] joined. WHITE, J., filed an opinion concurring in the result, post, p. 288. REHNQUIST, J., filed a dissenting opinion, post, p. 289.
Butz v. Economou
SUPREME COURT OF THE UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
After an unsuccessful Department of Agriculture proceeding to revoke or suspend the registration of respondent's commodity futures commission company, respondent filed an action for damages in District Court against petitioner officials (including the Secretary and Assistant Secretary of Agriculture, the Judicial Officer, the Chief Hearing Examiner who had recommended sustaining the administrative complaint, and the Department attorney who had prosecuted the enforcement proceeding), alleging, inter alia, that, by instituting unauthorized proceedings against him, they had violated various of his constitutional rights. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government.
Held:
1. Neither Barr v. Matteo, 360 U.S. 564, nor Spalding v. Vilas, 161 U.S. 483, supports petitioners' contention that all of the federal officials sued in this case are absolutely immune from any liability for damages even if, in the course of enforcing the relevant statutes, they infringed respondent's constitutional rights, and even if the violation was knowing and deliberate. Nor did either of those cases purport to abolish the liability of federal officers for actions manifestly beyond their line of duty; if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability. Pp. 485-496.
2. Without congressional directions to the contrary, it would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 U.S.C. § 1983 Scheuer v. Rhodes, 416 U.S. 232, and suits brought directly under the Constitution against federal officials, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388. Federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers. Pp. 496-504. [p479]
3. In a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer v. Rhodes, supra, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business. While federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law, there is no substantial basis for holding that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the Constitution, or in a manner that they should know transgresses a clearly established constitutional rule. Pp. 504-508.
4. Although a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, there are some officials whose special functions require a full exemption from liability. Pp. 508-517.
(a) In light of the safeguards provided in agency adjudication to assure that the hearing examiner or administrative law judge exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency, the risk of an unconstitutional act by one presiding at the agency hearing is clearly outweighed by the importance of preserving such independent judgment. Therefore, persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Pp. 508-514.
(b) Agency officials who perform functions analogous to those of a prosecutor must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, those officials who are responsible for the decision to initiate or continue a proceeding, subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision. Pp. 515-516.
(c) There is no substantial difference between the function of an agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court, and, since administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record, an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence. Pp. 516-517.
5. The case is remanded for application of the foregoing principles [p480] to the claims against the particular petitioner-defendants involved. P. 517.
535 F.2d 688, vacated and remanded.
WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion, concurring in part and dissenting in part, in which BURGER, C.J., and STEWART and STEVENS, JJ., joined, post, p. 517.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
After an unsuccessful Department of Agriculture proceeding to revoke or suspend the registration of respondent's commodity futures commission company, respondent filed an action for damages in District Court against petitioner officials (including the Secretary and Assistant Secretary of Agriculture, the Judicial Officer, the Chief Hearing Examiner who had recommended sustaining the administrative complaint, and the Department attorney who had prosecuted the enforcement proceeding), alleging, inter alia, that, by instituting unauthorized proceedings against him, they had violated various of his constitutional rights. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government.
Held:
1. Neither Barr v. Matteo, 360 U.S. 564, nor Spalding v. Vilas, 161 U.S. 483, supports petitioners' contention that all of the federal officials sued in this case are absolutely immune from any liability for damages even if, in the course of enforcing the relevant statutes, they infringed respondent's constitutional rights, and even if the violation was knowing and deliberate. Nor did either of those cases purport to abolish the liability of federal officers for actions manifestly beyond their line of duty; if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability. Pp. 485-496.
2. Without congressional directions to the contrary, it would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 U.S.C. § 1983 Scheuer v. Rhodes, 416 U.S. 232, and suits brought directly under the Constitution against federal officials, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388. Federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers. Pp. 496-504. [p479]
3. In a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer v. Rhodes, supra, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business. While federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law, there is no substantial basis for holding that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the Constitution, or in a manner that they should know transgresses a clearly established constitutional rule. Pp. 504-508.
4. Although a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, there are some officials whose special functions require a full exemption from liability. Pp. 508-517.
(a) In light of the safeguards provided in agency adjudication to assure that the hearing examiner or administrative law judge exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency, the risk of an unconstitutional act by one presiding at the agency hearing is clearly outweighed by the importance of preserving such independent judgment. Therefore, persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Pp. 508-514.
(b) Agency officials who perform functions analogous to those of a prosecutor must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, those officials who are responsible for the decision to initiate or continue a proceeding, subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision. Pp. 515-516.
(c) There is no substantial difference between the function of an agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court, and, since administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record, an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence. Pp. 516-517.
5. The case is remanded for application of the foregoing principles [p480] to the claims against the particular petitioner-defendants involved. P. 517.
535 F.2d 688, vacated and remanded.
WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion, concurring in part and dissenting in part, in which BURGER, C.J., and STEWART and STEVENS, JJ., joined, post, p. 517.
Primus
SUPREME COURT OF THE UNITED STATES
Appellant, a practicing lawyer in South Carolina who was also a cooperating lawyer with a branch of the American Civil Liberties Union (ACLU), after advising a gathering of women of their legal rights resulting from their having been sterilized as a condition of receiving public medical assistance, informed one of the women in a subsequent letter that free legal assistance was available from the ACLU. Thereafter, the disciplinary Board of the South Carolina Supreme Court charged and determined that appellant, by sending such letter, had engaged in soliciting a client in violation of certain Disciplinary Rules of the State Supreme Court, and issued a private reprimand. The court adopted the Board's findings and increased the sanction to a public reprimand.
Held: South Carolina's application of its Disciplinary Rules to appellant's solicitation by letter on the ACLU's behalf violates the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415, followed; Ohralik v. Ohio Bar Assn., post, p. 447, distinguished. Pp. 421-439.
(a) Solicitation of prospective litigants by nonprofit organizations that engage in litigation as "a form of political expression" and "political association" constitutes expressive and associational conduct entitled to First Amendment protection, as to which government may regulate only "with narrow specificity," Button, supra at 429, 431, 433. Pp. 422-425.
(b) Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment," United Transportation Union v. Michigan Bar, 401 U.S. 576, 585, and have required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms," Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222. P. 426.
(c) Appellant's activity in this case comes within the generous zone of protection reserved for associational freedoms because she engaged in solicitation by mail on behalf of a bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. There is nothing in the record to suggest that the ACLU [p413] or its South Carolina affiliate is an organization dedicated exclusively to providing legal services, or a group of attorneys that exists for the purpose of financial gain through the recovery of counsel fees, or a mere sham to evade a valid state rule against solicitation for pecuniary gain. Pp. 426-432.
(d) The Disciplinary Rules in question, which sweep broadly, rather than regulating with the degree of precision required in the context of political expression and association, have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra at 438, as well as for permitting discretionary enforcement against unpopular causes. P. 433.
(e) Although a showing of potential danger may suffice in the context of in-person solicitation for pecuniary gain under the decision today in Ohralik, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed. P. 434.
(f) The record does not support appellee's contention that undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, or lay interference actually occurred in this case. And the State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization of the legal profession offer no further justification for the discipline administered to appellant. Pp. 434-437.
(g) Nothing in this decision should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the ACLU. Pp. 438-439.
268 S.C. 259, 233 S.E.2d 301, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and STEVENS, JJ., joined, and in all but the first paragraph of Part VI of which MARSHALL, J., joined. BLACKMUN, J., filed a concurring opinion, post, p. 439. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468. REHNQUIST, J., filed a dissenting opinion, post, p. 440. BRENNAN, J., took no part in the consideration or decision of the case. [p414]
Appellant, a practicing lawyer in South Carolina who was also a cooperating lawyer with a branch of the American Civil Liberties Union (ACLU), after advising a gathering of women of their legal rights resulting from their having been sterilized as a condition of receiving public medical assistance, informed one of the women in a subsequent letter that free legal assistance was available from the ACLU. Thereafter, the disciplinary Board of the South Carolina Supreme Court charged and determined that appellant, by sending such letter, had engaged in soliciting a client in violation of certain Disciplinary Rules of the State Supreme Court, and issued a private reprimand. The court adopted the Board's findings and increased the sanction to a public reprimand.
Held: South Carolina's application of its Disciplinary Rules to appellant's solicitation by letter on the ACLU's behalf violates the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415, followed; Ohralik v. Ohio Bar Assn., post, p. 447, distinguished. Pp. 421-439.
(a) Solicitation of prospective litigants by nonprofit organizations that engage in litigation as "a form of political expression" and "political association" constitutes expressive and associational conduct entitled to First Amendment protection, as to which government may regulate only "with narrow specificity," Button, supra at 429, 431, 433. Pp. 422-425.
(b) Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment," United Transportation Union v. Michigan Bar, 401 U.S. 576, 585, and have required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms," Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222. P. 426.
(c) Appellant's activity in this case comes within the generous zone of protection reserved for associational freedoms because she engaged in solicitation by mail on behalf of a bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. There is nothing in the record to suggest that the ACLU [p413] or its South Carolina affiliate is an organization dedicated exclusively to providing legal services, or a group of attorneys that exists for the purpose of financial gain through the recovery of counsel fees, or a mere sham to evade a valid state rule against solicitation for pecuniary gain. Pp. 426-432.
(d) The Disciplinary Rules in question, which sweep broadly, rather than regulating with the degree of precision required in the context of political expression and association, have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra at 438, as well as for permitting discretionary enforcement against unpopular causes. P. 433.
(e) Although a showing of potential danger may suffice in the context of in-person solicitation for pecuniary gain under the decision today in Ohralik, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed. P. 434.
(f) The record does not support appellee's contention that undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, or lay interference actually occurred in this case. And the State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization of the legal profession offer no further justification for the discipline administered to appellant. Pp. 434-437.
(g) Nothing in this decision should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the ACLU. Pp. 438-439.
268 S.C. 259, 233 S.E.2d 301, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and STEVENS, JJ., joined, and in all but the first paragraph of Part VI of which MARSHALL, J., joined. BLACKMUN, J., filed a concurring opinion, post, p. 439. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468. REHNQUIST, J., filed a dissenting opinion, post, p. 440. BRENNAN, J., took no part in the consideration or decision of the case. [p414]
Ex parte Garland
SUPREME COURT OF THE UNITED STATES
1. The act of Congress of January 24th, 1865, providing that, after its passage, no person shall be admitted as an attorney and counselor to the bar of the Supreme Court, and, after March 4th, 1865, to the bar of any Circuit or District Court of the United States, or Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed to the oath prescribed in the act of July 2d, 1862 -- which latter act requires the affiant to swear or affirm that he has never voluntarily borne arms against the United States since he has been a citizen thereof, that he has voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto, that he has neither sought nor accepted, nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States, and that he has not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States hostile or inimical thereto -- operates as a legislative decree excluding from the practice of the law in the courts of the United States all parties who have offended in any of the particulars enumerated.
2. Exclusion from the practice of the law in the Federal courts, or from any of the ordinary avocations of life for past conduct is punishment for such conduct. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate.
3. The act being of this character partakes of the nature of a bills of pains and penalties, and is subject to the constitutional inhibition against the passage of bills of attainder, under which general designation bills of pains and penalties are included.
4. In the exclusion which the act adjudges, it imposes a punishment for some of the acts specified which were not punishable at the time they were committed, and for other of the acts, it adds a new punishment to that before prescribed, and it is thus within the inhibition of the Constitution against the passage of an ex post facto law.
5. Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character.
6. The order of admission is the judgment of the court that the parties possess the requisite qualifications and are entitled to appear as attorneys and counselors and conduct causes therein. From its entry, the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Their admission and their exclusion are the exercise of judicial power. [p334]
7. The right of an attorney and counselor, acquired by his admission, to appear for suitors and to argue causes, is not a mere indulgence -- a matter of grace and favor -- revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.
8. The admitted power of Congress to prescribe qualifications for the office of attorney and counselor in the Federal courts cannot be exercised as a means for the infliction of punishment for the past conduct of such officers, against the inhibition of the Constitution.
9. The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.
10. A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment.
11. The petitioner in this case, having received a full pardon for all offences committed by his participation, direct or implied, in the Rebellion, is relieved from all penalties and disabilities attached to the offence of treason, committed by such participation. For that offence, he is beyond the reach of punishment of any kind. He cannot, therefore, be excluded by reason of that offence from continuing in the enjoyment of a previously acquired right to appear as an attorney and counselor in the Federal courts.
On the 2d of July, 1862, Congress, by "An act to prescribe an oath of office, and for other purposes," [n1] enacted:
That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation:
I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to [p335] persons engaged in armed hostility thereto; that I have neither sought nor accepted, not attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution with the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God;
&c.
Any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States.
On the 24th of January, 1865, [n2] Congress passed a supplementary act extending these provisions so as to embrace attorneys and counselors of the courts of the United States. I t is as follows:
No person, after the date of this act, shall be admitted to the bar of the Supreme Court of the United States, or at any time after the fourth of March next, shall be admitted to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counselor of such court, or shall be allowed to appear and be heard in any such court, by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath prescribed in "An act to prescribe an oath of office and for other purposes," approved July 2d, 1862. And any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction,
&c.
By the Judiciary Act of 1789, the Supreme Court has power to make rules and decide upon the qualifications of attorneys.
At the December Term of 1860, A. H. Garland, Esquire, was admitted as an attorney and counselor of the court, and took and subscribed the oath then required. The second rule, as it then existed, was as follows: [p336]
It shall be requisite to the admission of attorneys and counselors to practise in this court that they shall have been such for three years past in the Supreme Courts of the States to which they respectively belong, and that their private and professional character shall appear to be fair.
They shall respectively take the following oath or affirmation, viz.:
I, A. B., do solemnly swear (or affirm, as the case may be) that I will demean myself as an attorney and counselor of this court, uprightly, and according to law, and that I will support the Constitution of the United States.
There was then no other qualification for attorneys in this court than such as are named in this rule.
In March, 1865, this rule was changed by the addition of a clause requiring an oath, in conformity with the act of Congress.
At the same term at which he was admitted, Mr. Garland appeared, and presented printed argument in several cases in which he was counsel. His name continued on the roll of attorneys from then to the present time. but the late Rebellion intervened, and all business in which he was concerned at the time of his admission remained undisposed of. In some of the cases alluded to, fees were paid, and in others, they were partially paid. Having taken part in the Rebellion against the United States by being in the Congress of the so-called Confederate States from May, 1861, until the final surrender of the forces of such Confederate States -- first in the lower house and afterwards in the Senate of that body as the representative of the State of Arkansas, of which he was a citizen -- Mr. Garland could not take the oath prescribed by the acts of Congress before mentioned and the rule of the court of March, 1865.
The State, in May, 1861, passed an ordinance of secession, purporting to withdraw herself from the Union, and afterwards, in the same year, by another ordinance, attached herself to the so-called Confederate States.
In July, 1865, Mr. Garland received from the President [p337] a pardon, by which the chief magistrate, reciting that Mr. Garland, "by taking part in the late Rebellion against the government, had made himself liable to heavy pains and penalties," &c., did thereby
Grant to the said A. H. Garland a FULL PARDON AND AMNESTY for all offences by him committed, arising from participation, direct or implied, in the said Rebellion, conditioned as follows: this pardon to begin and take effect from the day on which the said A. H. Garland shall take the oath prescribed in the proclamation of the President, dated May 29th, 1865, and to be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor, and that he first pay all costs which may have accrued in any proceedings hitherto instituted against his person or property. And upon the further condition that the said A. H. Garland shall notify the Secretary of State in writing that he has received and accepted the foregoing pardon.
The oath required was taken by Mr. Garland and annexed to the pardon. It was to the purport that he would thenceforth
faithfully support, protect, and defend the Constitution of the United States and the union of the States thereunder, and that he would in like manner abide by and faithfully support all laws and proclamations which had been made during the existing Rebellion with reference to the emancipation of slaves.
Mr. Garland now produced this pardon, and, by petition filed in court, asked permission to continue to practise as an attorney and counselor of the court, without taking the oath required by the act of January 24th, 1865, and the rule of the court. He rested his application principally upon two grounds:
1st. That the act of January 24th, 1865, so far as it affected his status in the court, was unconstitutional and void, and,
2d. That, if the act were constitutional, he was released from compliance with its provisions by the pardon of the President. [p374]
1. The act of Congress of January 24th, 1865, providing that, after its passage, no person shall be admitted as an attorney and counselor to the bar of the Supreme Court, and, after March 4th, 1865, to the bar of any Circuit or District Court of the United States, or Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed to the oath prescribed in the act of July 2d, 1862 -- which latter act requires the affiant to swear or affirm that he has never voluntarily borne arms against the United States since he has been a citizen thereof, that he has voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto, that he has neither sought nor accepted, nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States, and that he has not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States hostile or inimical thereto -- operates as a legislative decree excluding from the practice of the law in the courts of the United States all parties who have offended in any of the particulars enumerated.
2. Exclusion from the practice of the law in the Federal courts, or from any of the ordinary avocations of life for past conduct is punishment for such conduct. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate.
3. The act being of this character partakes of the nature of a bills of pains and penalties, and is subject to the constitutional inhibition against the passage of bills of attainder, under which general designation bills of pains and penalties are included.
4. In the exclusion which the act adjudges, it imposes a punishment for some of the acts specified which were not punishable at the time they were committed, and for other of the acts, it adds a new punishment to that before prescribed, and it is thus within the inhibition of the Constitution against the passage of an ex post facto law.
5. Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character.
6. The order of admission is the judgment of the court that the parties possess the requisite qualifications and are entitled to appear as attorneys and counselors and conduct causes therein. From its entry, the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Their admission and their exclusion are the exercise of judicial power. [p334]
7. The right of an attorney and counselor, acquired by his admission, to appear for suitors and to argue causes, is not a mere indulgence -- a matter of grace and favor -- revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.
8. The admitted power of Congress to prescribe qualifications for the office of attorney and counselor in the Federal courts cannot be exercised as a means for the infliction of punishment for the past conduct of such officers, against the inhibition of the Constitution.
9. The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.
10. A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment.
11. The petitioner in this case, having received a full pardon for all offences committed by his participation, direct or implied, in the Rebellion, is relieved from all penalties and disabilities attached to the offence of treason, committed by such participation. For that offence, he is beyond the reach of punishment of any kind. He cannot, therefore, be excluded by reason of that offence from continuing in the enjoyment of a previously acquired right to appear as an attorney and counselor in the Federal courts.
On the 2d of July, 1862, Congress, by "An act to prescribe an oath of office, and for other purposes," [n1] enacted:
That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation:
I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to [p335] persons engaged in armed hostility thereto; that I have neither sought nor accepted, not attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution with the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God;
&c.
Any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States.
On the 24th of January, 1865, [n2] Congress passed a supplementary act extending these provisions so as to embrace attorneys and counselors of the courts of the United States. I t is as follows:
No person, after the date of this act, shall be admitted to the bar of the Supreme Court of the United States, or at any time after the fourth of March next, shall be admitted to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counselor of such court, or shall be allowed to appear and be heard in any such court, by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath prescribed in "An act to prescribe an oath of office and for other purposes," approved July 2d, 1862. And any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction,
&c.
By the Judiciary Act of 1789, the Supreme Court has power to make rules and decide upon the qualifications of attorneys.
At the December Term of 1860, A. H. Garland, Esquire, was admitted as an attorney and counselor of the court, and took and subscribed the oath then required. The second rule, as it then existed, was as follows: [p336]
It shall be requisite to the admission of attorneys and counselors to practise in this court that they shall have been such for three years past in the Supreme Courts of the States to which they respectively belong, and that their private and professional character shall appear to be fair.
They shall respectively take the following oath or affirmation, viz.:
I, A. B., do solemnly swear (or affirm, as the case may be) that I will demean myself as an attorney and counselor of this court, uprightly, and according to law, and that I will support the Constitution of the United States.
There was then no other qualification for attorneys in this court than such as are named in this rule.
In March, 1865, this rule was changed by the addition of a clause requiring an oath, in conformity with the act of Congress.
At the same term at which he was admitted, Mr. Garland appeared, and presented printed argument in several cases in which he was counsel. His name continued on the roll of attorneys from then to the present time. but the late Rebellion intervened, and all business in which he was concerned at the time of his admission remained undisposed of. In some of the cases alluded to, fees were paid, and in others, they were partially paid. Having taken part in the Rebellion against the United States by being in the Congress of the so-called Confederate States from May, 1861, until the final surrender of the forces of such Confederate States -- first in the lower house and afterwards in the Senate of that body as the representative of the State of Arkansas, of which he was a citizen -- Mr. Garland could not take the oath prescribed by the acts of Congress before mentioned and the rule of the court of March, 1865.
The State, in May, 1861, passed an ordinance of secession, purporting to withdraw herself from the Union, and afterwards, in the same year, by another ordinance, attached herself to the so-called Confederate States.
In July, 1865, Mr. Garland received from the President [p337] a pardon, by which the chief magistrate, reciting that Mr. Garland, "by taking part in the late Rebellion against the government, had made himself liable to heavy pains and penalties," &c., did thereby
Grant to the said A. H. Garland a FULL PARDON AND AMNESTY for all offences by him committed, arising from participation, direct or implied, in the said Rebellion, conditioned as follows: this pardon to begin and take effect from the day on which the said A. H. Garland shall take the oath prescribed in the proclamation of the President, dated May 29th, 1865, and to be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor, and that he first pay all costs which may have accrued in any proceedings hitherto instituted against his person or property. And upon the further condition that the said A. H. Garland shall notify the Secretary of State in writing that he has received and accepted the foregoing pardon.
The oath required was taken by Mr. Garland and annexed to the pardon. It was to the purport that he would thenceforth
faithfully support, protect, and defend the Constitution of the United States and the union of the States thereunder, and that he would in like manner abide by and faithfully support all laws and proclamations which had been made during the existing Rebellion with reference to the emancipation of slaves.
Mr. Garland now produced this pardon, and, by petition filed in court, asked permission to continue to practise as an attorney and counselor of the court, without taking the oath required by the act of January 24th, 1865, and the rule of the court. He rested his application principally upon two grounds:
1st. That the act of January 24th, 1865, so far as it affected his status in the court, was unconstitutional and void, and,
2d. That, if the act were constitutional, he was released from compliance with its provisions by the pardon of the President. [p374]
Saturday, August 1, 2009
Barron v. Mayor & City Council of Baltimore
ON WRIT OF ERROR TO THE COURT OF APPEALS FOR THE WESTERN SHORE OF THE STATE OF MARYLAND
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Argued: --- Decided:
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The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
This case was instituted by the plaintiff in error, against the City of Baltimore, under its corporate title of "The Mayor and City Council of Baltimore," to recover damages for injuries to the wharf property of the plaintiff, arising from the acts of the corporation. Craig & Barron, of whom the plaintiff was survivor, were owners of an extensive and highly productive wharf in the eastern section of Baltimore, enjoying, at the period of their purchase of it, the deepest water in the harbor. The city, in the asserted exercise of its corporate authority over the harbor, the paving of streets, and regulating grades for paving, and over the health of Baltimore, diverted from their accustomed and natural course certain streams of water which flow from the range of hills bordering the city, and diverted them, partly by adopting new grades of streets, and partly by the necessary results of paving, and partly by mounds, [p244] embankments and other artificial means purposely adapted to bend the course of the water to the wharf in question. These streams becoming very full and violent in rains, carried down with them from the hills and the soil over which they ran large masses of sand and earth, which they deposited along, and widely in front of the wharf of the plaintiff. The alleged consequence was that the water was rendered so shallow that it ceased to be useful for vessels of an important burden, lost its income, and became of little or no value as a wharf. This injury was asserted to have been inflicted by a series of ordinances of the corporation, between the years 1815 and 1821; and that the evil was progressive; and that it was active and increasing even at the institution of this suit in 1822.
At the trial of the cause in the Baltimore county court, the plaintiff gave evidence tending to prove the original and natural course of the streams, the various works of the corporation from time to time to turn them in the direction of this wharf, and the ruinous consequences of these measures to the interests of the plaintiff. It was not asserted by the defendants, that any compensation for the injury was ever made or proffered, but they justified under the authority they deduced from the charter of the city, granted by the legislature of Maryland, and under several acts of the legislature conferring powers on the corporation in regard to the grading and paving of streets, the regulation of the harbor and its waters, and to the health of the city. They also denied, that the plaintiff had shown any cause of action in the declaration, asserting that the injury complained of was a matter of public nuisance, and not of special or individual grievance in the eye of the law. This latter ground was taken on exception, and was also urged as a reason for a motion in arrest of judgment. On all points, the decision of Baltimore county court was against the defendants, and a verdict for $4,500 was rendered for the plaintiff. An appeal was taken to the court of appeals, which reversed the judgment of Baltimore county court, and did not remand the case to that court for a further trial. From this judgment, the defendant in the court of appeals prosecuted a writ of error to this court. [p245]
The counsel for the plaintiff presented the following points: the plaintiff in error will contend that apart from the legislative sanctions of the state of Maryland, and the acts of the corporation of Baltimore, holding out special encouragement and protection to interests in wharves constructed on the shores of the Patapsco river, and particularly of the wharf erected by Craig and the plaintiff, Barron; the right and profit of wharfage, and use of the water at the wharf, for the objects of navigation, was a vested interest and incorporeal hereditament, inviolable even by the state except on just compensation for the privation; but the act of assembly and the ordinance of the City are relied on as enforcing the claim to the undisturbed enjoyment of the right.
This right was interfered with, and the benefit of this property taken away from the plaintiff by the corporation avowedly, as the defence showed, for public use, for an object of public interest -- the benefit more immediately of the community of Baltimore, the individuals, part of the population of Maryland, known by the corporate title of the Mayor and City Council of Baltimore. The "inhabitants" of Baltimore are thus incorporated by the Acts of 1796, ch. 68. As a corporation, they are made liable to be sued, and authorized to sue, to acquire and hold and dispose of property and, within the scope of the powers conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the charter shall have the same effect as acts of assembly, and be operative, provided they be not repugnant to the laws of the state, or the constitution of the state, or of the United States. The plaintiff will contend accordingly:
1. That the Mayor and City Council of Baltimore, though viewed even as a municipal corporation, is liable for tort and actual misfeasance, and that it is a tort, and would be so even in the state, acting in her immediate sovereignty to deprive a citizen of his property, though for public uses, without indemnification; that, regarding the corporation as acting with the delegated power of the state, the act complained of is not the less an actionable tort.
2. That this is the case of an authority exercised under a [p246]
State, the corporation appealing to the legislative acts of Maryland for the discretional power which it has exercised.
3. That this exercise of authority was repugnant to the constitution of the United States, contravening the fifth article of the amendments to the constitution, which declares that "private property shall not be taken for public use, without just compensation," the plaintiff contending, that this article declares principles which regulate the legislation of the states for the protection of the people in each and all the states, regarded as citizens of the United States or as inhabitants subject to the laws of the Union.
4. That under the evidence, prayers, and pleadings in the case, the constitutionality of this authority exercised under the state must have been drawn in question, and that this court has appellate jurisdiction of the point, from the judgment of the Court of Appeals of Maryland, the highest court of that state, that point being the essential ground of the plaintiff's pretention in opposition to the power and discussion of the corporation.
5. That this court, in such appellate cognisance, is not confined to the establishment of an abstract point of construction, but is empowered to pass upon the right or title of either party, and may therefore determine all points incidental or preliminary to the question of title and necessary in the course to that inquiry; that consequently, the question is for this court's determination whether the declaration avers actionable matter, or whether the complaint is only of a public nuisance, and on that head, the plaintiff will contend, that special damage is fully shown here, within the principle of the cases where an individual injury resulting from a public nuisance is deemed actionable, the wrong being merely public only so long as the law suffered in the particular case is no more than all members of the community suffer.
Upon these views, the plaintiff contends that the judgment of the court of appeals ought to be reversed. [p247]
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Argued: --- Decided:
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The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
This case was instituted by the plaintiff in error, against the City of Baltimore, under its corporate title of "The Mayor and City Council of Baltimore," to recover damages for injuries to the wharf property of the plaintiff, arising from the acts of the corporation. Craig & Barron, of whom the plaintiff was survivor, were owners of an extensive and highly productive wharf in the eastern section of Baltimore, enjoying, at the period of their purchase of it, the deepest water in the harbor. The city, in the asserted exercise of its corporate authority over the harbor, the paving of streets, and regulating grades for paving, and over the health of Baltimore, diverted from their accustomed and natural course certain streams of water which flow from the range of hills bordering the city, and diverted them, partly by adopting new grades of streets, and partly by the necessary results of paving, and partly by mounds, [p244] embankments and other artificial means purposely adapted to bend the course of the water to the wharf in question. These streams becoming very full and violent in rains, carried down with them from the hills and the soil over which they ran large masses of sand and earth, which they deposited along, and widely in front of the wharf of the plaintiff. The alleged consequence was that the water was rendered so shallow that it ceased to be useful for vessels of an important burden, lost its income, and became of little or no value as a wharf. This injury was asserted to have been inflicted by a series of ordinances of the corporation, between the years 1815 and 1821; and that the evil was progressive; and that it was active and increasing even at the institution of this suit in 1822.
At the trial of the cause in the Baltimore county court, the plaintiff gave evidence tending to prove the original and natural course of the streams, the various works of the corporation from time to time to turn them in the direction of this wharf, and the ruinous consequences of these measures to the interests of the plaintiff. It was not asserted by the defendants, that any compensation for the injury was ever made or proffered, but they justified under the authority they deduced from the charter of the city, granted by the legislature of Maryland, and under several acts of the legislature conferring powers on the corporation in regard to the grading and paving of streets, the regulation of the harbor and its waters, and to the health of the city. They also denied, that the plaintiff had shown any cause of action in the declaration, asserting that the injury complained of was a matter of public nuisance, and not of special or individual grievance in the eye of the law. This latter ground was taken on exception, and was also urged as a reason for a motion in arrest of judgment. On all points, the decision of Baltimore county court was against the defendants, and a verdict for $4,500 was rendered for the plaintiff. An appeal was taken to the court of appeals, which reversed the judgment of Baltimore county court, and did not remand the case to that court for a further trial. From this judgment, the defendant in the court of appeals prosecuted a writ of error to this court. [p245]
The counsel for the plaintiff presented the following points: the plaintiff in error will contend that apart from the legislative sanctions of the state of Maryland, and the acts of the corporation of Baltimore, holding out special encouragement and protection to interests in wharves constructed on the shores of the Patapsco river, and particularly of the wharf erected by Craig and the plaintiff, Barron; the right and profit of wharfage, and use of the water at the wharf, for the objects of navigation, was a vested interest and incorporeal hereditament, inviolable even by the state except on just compensation for the privation; but the act of assembly and the ordinance of the City are relied on as enforcing the claim to the undisturbed enjoyment of the right.
This right was interfered with, and the benefit of this property taken away from the plaintiff by the corporation avowedly, as the defence showed, for public use, for an object of public interest -- the benefit more immediately of the community of Baltimore, the individuals, part of the population of Maryland, known by the corporate title of the Mayor and City Council of Baltimore. The "inhabitants" of Baltimore are thus incorporated by the Acts of 1796, ch. 68. As a corporation, they are made liable to be sued, and authorized to sue, to acquire and hold and dispose of property and, within the scope of the powers conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the charter shall have the same effect as acts of assembly, and be operative, provided they be not repugnant to the laws of the state, or the constitution of the state, or of the United States. The plaintiff will contend accordingly:
1. That the Mayor and City Council of Baltimore, though viewed even as a municipal corporation, is liable for tort and actual misfeasance, and that it is a tort, and would be so even in the state, acting in her immediate sovereignty to deprive a citizen of his property, though for public uses, without indemnification; that, regarding the corporation as acting with the delegated power of the state, the act complained of is not the less an actionable tort.
2. That this is the case of an authority exercised under a [p246]
State, the corporation appealing to the legislative acts of Maryland for the discretional power which it has exercised.
3. That this exercise of authority was repugnant to the constitution of the United States, contravening the fifth article of the amendments to the constitution, which declares that "private property shall not be taken for public use, without just compensation," the plaintiff contending, that this article declares principles which regulate the legislation of the states for the protection of the people in each and all the states, regarded as citizens of the United States or as inhabitants subject to the laws of the Union.
4. That under the evidence, prayers, and pleadings in the case, the constitutionality of this authority exercised under the state must have been drawn in question, and that this court has appellate jurisdiction of the point, from the judgment of the Court of Appeals of Maryland, the highest court of that state, that point being the essential ground of the plaintiff's pretention in opposition to the power and discussion of the corporation.
5. That this court, in such appellate cognisance, is not confined to the establishment of an abstract point of construction, but is empowered to pass upon the right or title of either party, and may therefore determine all points incidental or preliminary to the question of title and necessary in the course to that inquiry; that consequently, the question is for this court's determination whether the declaration avers actionable matter, or whether the complaint is only of a public nuisance, and on that head, the plaintiff will contend, that special damage is fully shown here, within the principle of the cases where an individual injury resulting from a public nuisance is deemed actionable, the wrong being merely public only so long as the law suffered in the particular case is no more than all members of the community suffer.
Upon these views, the plaintiff contends that the judgment of the court of appeals ought to be reversed. [p247]
Buck v. Bell
1. The Virginia statute providing for the sexual sterilization of inmates of institutions supported by the State who shall be found to be afflicted with an hereditary form of insanity or imbecility, is within the power of the State under the Fourteenth Amendment. P. 207.
2. Failure to extend the provision to persons outside the institutions named does not render it obnoxious to the Equal Protection Clause. P. 208.
ERROR to a judgment of the Supreme Court of Appeals of the State of Virginia which affirmed a judgment ordering [p201] the Superintendent of the State Colony of Epileptics and Feeble Minded to perform the operation of salpingectomy on Carrie Buck, the plaintiff in error. [p205]
2. Failure to extend the provision to persons outside the institutions named does not render it obnoxious to the Equal Protection Clause. P. 208.
ERROR to a judgment of the Supreme Court of Appeals of the State of Virginia which affirmed a judgment ordering [p201] the Superintendent of the State Colony of Epileptics and Feeble Minded to perform the operation of salpingectomy on Carrie Buck, the plaintiff in error. [p205]
Griswold v. Connecticut
APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT
Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute, as applied, violated the Fourteenth Amendment. An intermediate appellate court and the State's highest court affirmed the judgment.
Held:
1. Appellants have standing to assert the constitutional rights of the married people. Tileston v. Ullman, 318 U.S. 44, distinguished. P. 481.
2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 481-486.
Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute, as applied, violated the Fourteenth Amendment. An intermediate appellate court and the State's highest court affirmed the judgment.
Held:
1. Appellants have standing to assert the constitutional rights of the married people. Tileston v. Ullman, 318 U.S. 44, distinguished. P. 481.
2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 481-486.
Carey v. Population Services International
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Section 6811(8) of the New York Education Law makes it a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under 16; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives. In appellees' action against appellant state officials challenging the constitutionality of $ 6811(8), a three-judge District Court declared the statute unconstitutional in its entirety under the First and Fourteenth Amendments insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied.
Held: The judgment is affirmed. Pp. 682-703; 707-708; 713-716.
398 F.Supp. 321, affirmed.
MR. JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I, II, III, and V, finding that:
1. Appellee Population Planning Associates (PPA), a corporation that makes mail-order sales of nonmedical contraceptive devices from its North Carolina offices and regularly advertises its products in New York periodicals and fills mail orders from New York residents without limiting availability of the products to persons of any particular age, has the requisite standing to maintain the action not only in its own right but also on behalf of its potential customers, Craig v. Boren, 429 U.S. 190, and therefore there is no occasion to decide the standing of the other appellees. Pp. 682-684.
2. Regulations imposing a burden on a decision as fundamental as whether to bear or beget a child may be justified only by compelling state interests, and must be narrowly drawn to express only those interests. Pp. 684-686.
3. The provision prohibiting distribution of nonmedical contraceptives to persons 16 or over except through licensed pharmacists clearly burdens the right of such individuals to use contraceptives if they so desire, and the provision serves no compelling state interests. It cannot be justified by an interest in protecting health insofar as it applies [p679] to nonhazardous contraceptives or in protecting potential life, nor can it be justified by a concern that young people not sell contraceptives, or as being designed to serve as a quality control device or as facilitating enforcement of the other provisions of the statute. Pp. 686-691.
4. The prohibition of any advertisement or display of contraceptives that seeks to suppress completely any information about the availability and price of contraceptives cannot be justified on the ground that advertisements of contraceptive products would offend and embarrass those exposed to them, and that permitting them would legitimize sexual activity of young people. These are classically not justifications validating suppression of expression protected by the First Amendment, and here the advertisements in question merely state the availability of products that are not only entirely legal, but constitutionally protected. Pp. 700-702.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, concluded in Part IV that the provision prohibiting distribution of contraceptives to persons under 16, as applied to nonprescription contraceptives, cannot be justified as a permissible regulation of minors' morality in furtherance of the State's policy against promiscuous sexual intercourse among the young. Pp. 691-699.
(a) The right to privacy in connection with decisions affecting procreation extends to minors as well as to adults, and since a State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed. Pp. 693-694.
(b) The argument that sexual activity may be deterred by increasing the hazards attendant on it has been rejected by the Court as a justification for restrictions on the freedom to choose whether to bear or beget a child. Eisenstadt v. Baird, 405 U.S. 438, 448; Roe v. Wade, 410 U.S. 113, 148. Moreover, there is substantial doubt whether limiting access to contraceptives will, in fact, substantially discourage early sexual behavior. When a State, as here, burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some state policy requires more than the unsupported assertion (appellants here having conceded that there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives) that the burden is connected to such a policy. Pp. 694-696. [p680]
(c) That, under another provision of the statute, a minor under 16 may be supplied with a contraceptive by a physician does not save the challenged provision, especially where appellants asserted no medical necessity for imposing a limitation on the distribution of nonprescription contraceptives to minors. Pp. 697-699.
MR. JUSTICE WHITE concluded that the prohibition against distribution of contraceptives to persons under 16 cannot be justified primarily because the State has not demonstrated that such prohibition measurably contributes to the deterrent purposes that the State advances as justification. Pp. 702-703.
MR. JUSTICE POWELL concluded that the prohibition against distribution of contraceptives to persons under 16 is defective both because it infringes the privacy interests of married females between the ages of 14 and 16 and because it prohibits parents from distributing contraceptives to their children, thus unjustifiably interfering with parental interests in rearing children. Pp. 707-708.
MR. JUSTICE STEVENS concluded that the prohibition against distribution of contraceptives to persons under 16 denies such persons and their parents a choice which, if available, would reduce exposure to venereal disease or unwanted pregnancy, and that the prohibition cannot be justified as a means of discouraging sexual activity by minors. Pp. 713-716.
BRENNAN, J., announced the Court's judgment and delivered an opinion of the Court (Parts I, II, III, and V), in which STEWART, MARSHALL, BLACKMUN, and STEVENS, JJ., joined; in all but Part II of which WHITE, J., joined; and in Part I of which POWELL, J., joined; and an opinion (Part IV), in which STEWART, MARSHALL, and BLACKMUN, JJ., joined. WHITE, J., post, p. 702, POWELL, J., post, p. 703, and STEVENS, J., post, p. 712, filed opinions concurring in part and concurring in the judgment. BURGER, C.J., dissented. REHNQUIST, J., filed a dissenting opinion, post, p. 717. [p681]
Section 6811(8) of the New York Education Law makes it a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under 16; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives. In appellees' action against appellant state officials challenging the constitutionality of $ 6811(8), a three-judge District Court declared the statute unconstitutional in its entirety under the First and Fourteenth Amendments insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied.
Held: The judgment is affirmed. Pp. 682-703; 707-708; 713-716.
398 F.Supp. 321, affirmed.
MR. JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I, II, III, and V, finding that:
1. Appellee Population Planning Associates (PPA), a corporation that makes mail-order sales of nonmedical contraceptive devices from its North Carolina offices and regularly advertises its products in New York periodicals and fills mail orders from New York residents without limiting availability of the products to persons of any particular age, has the requisite standing to maintain the action not only in its own right but also on behalf of its potential customers, Craig v. Boren, 429 U.S. 190, and therefore there is no occasion to decide the standing of the other appellees. Pp. 682-684.
2. Regulations imposing a burden on a decision as fundamental as whether to bear or beget a child may be justified only by compelling state interests, and must be narrowly drawn to express only those interests. Pp. 684-686.
3. The provision prohibiting distribution of nonmedical contraceptives to persons 16 or over except through licensed pharmacists clearly burdens the right of such individuals to use contraceptives if they so desire, and the provision serves no compelling state interests. It cannot be justified by an interest in protecting health insofar as it applies [p679] to nonhazardous contraceptives or in protecting potential life, nor can it be justified by a concern that young people not sell contraceptives, or as being designed to serve as a quality control device or as facilitating enforcement of the other provisions of the statute. Pp. 686-691.
4. The prohibition of any advertisement or display of contraceptives that seeks to suppress completely any information about the availability and price of contraceptives cannot be justified on the ground that advertisements of contraceptive products would offend and embarrass those exposed to them, and that permitting them would legitimize sexual activity of young people. These are classically not justifications validating suppression of expression protected by the First Amendment, and here the advertisements in question merely state the availability of products that are not only entirely legal, but constitutionally protected. Pp. 700-702.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, concluded in Part IV that the provision prohibiting distribution of contraceptives to persons under 16, as applied to nonprescription contraceptives, cannot be justified as a permissible regulation of minors' morality in furtherance of the State's policy against promiscuous sexual intercourse among the young. Pp. 691-699.
(a) The right to privacy in connection with decisions affecting procreation extends to minors as well as to adults, and since a State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed. Pp. 693-694.
(b) The argument that sexual activity may be deterred by increasing the hazards attendant on it has been rejected by the Court as a justification for restrictions on the freedom to choose whether to bear or beget a child. Eisenstadt v. Baird, 405 U.S. 438, 448; Roe v. Wade, 410 U.S. 113, 148. Moreover, there is substantial doubt whether limiting access to contraceptives will, in fact, substantially discourage early sexual behavior. When a State, as here, burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some state policy requires more than the unsupported assertion (appellants here having conceded that there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives) that the burden is connected to such a policy. Pp. 694-696. [p680]
(c) That, under another provision of the statute, a minor under 16 may be supplied with a contraceptive by a physician does not save the challenged provision, especially where appellants asserted no medical necessity for imposing a limitation on the distribution of nonprescription contraceptives to minors. Pp. 697-699.
MR. JUSTICE WHITE concluded that the prohibition against distribution of contraceptives to persons under 16 cannot be justified primarily because the State has not demonstrated that such prohibition measurably contributes to the deterrent purposes that the State advances as justification. Pp. 702-703.
MR. JUSTICE POWELL concluded that the prohibition against distribution of contraceptives to persons under 16 is defective both because it infringes the privacy interests of married females between the ages of 14 and 16 and because it prohibits parents from distributing contraceptives to their children, thus unjustifiably interfering with parental interests in rearing children. Pp. 707-708.
MR. JUSTICE STEVENS concluded that the prohibition against distribution of contraceptives to persons under 16 denies such persons and their parents a choice which, if available, would reduce exposure to venereal disease or unwanted pregnancy, and that the prohibition cannot be justified as a means of discouraging sexual activity by minors. Pp. 713-716.
BRENNAN, J., announced the Court's judgment and delivered an opinion of the Court (Parts I, II, III, and V), in which STEWART, MARSHALL, BLACKMUN, and STEVENS, JJ., joined; in all but Part II of which WHITE, J., joined; and in Part I of which POWELL, J., joined; and an opinion (Part IV), in which STEWART, MARSHALL, and BLACKMUN, JJ., joined. WHITE, J., post, p. 702, POWELL, J., post, p. 703, and STEVENS, J., post, p. 712, filed opinions concurring in part and concurring in the judgment. BURGER, C.J., dissented. REHNQUIST, J., filed a dissenting opinion, post, p. 717. [p681]
Bolger v. Youngs Drug Products Corp.,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
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No. 81-1590 Argued: January 12, 1983 --- Decided: June 24, 1983
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Title 39 U.S.C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. When appellee manufacturer of contraceptives proposed to mail to the public unsolicited advertisements including informational pamphlets promoting its products but also discussing venereal disease and family planning, the Postal Service notified appellee that the proposed mailings would violate § 3001(e)(2). Appellee then brought an action for declaratory and injunctive relief in Federal District Court, which held that the statute, as applied to the proposed mailings, violated the First Amendment.
Held: As applied to appellee's proposed mailings, § 3001(e)(2) is unconstitutional. Pp. 64-75.
(a) The mailings, which are concededly advertisements, refer to specific products, and are economically motivated, constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as the prevention of venereal disease and family planning. Pp. 64-68.
(b) Advertising for contraceptives not only implicates "substantial individual and societal interests" in the free flow of commercial information, but also relates to activity that is protected from unwarranted governmental interference. Thus, appellee's proposed commercial speech is clearly protected by the First Amendment. P. 69.
(c) Neither of the interests asserted by appellants -- that § 3001(e)(2) shields recipients of mail from materials that they are likely to find offensive and aids parents' efforts to control the manner in which their children become informed about birth control -- is sufficient to justify the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. The fact that protected speech may be offensive to some persons does not justify its suppression, and, in any event, recipients of objectionable mailings can avoid further offensiveness simply by averting their eyes or disposing of the mailings in a trash can. While the second asserted interest is substantial, § 3001(e)(2), as a means of effectuating this interest, fails to withstand scrutiny. The statute's marginal degree of protection afforded those parents who desire to keep their children from confronting such mailings is improperly achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. Section 3001(e)(2) is also defective because it denies parents [p61] truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. Pp. 70-75.
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 75. STEVENS, J., filed an opinion concurring in the judgment, post, p. 80. BRENNAN, J., took no part in the decision of the case.
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No. 81-1590 Argued: January 12, 1983 --- Decided: June 24, 1983
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Title 39 U.S.C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. When appellee manufacturer of contraceptives proposed to mail to the public unsolicited advertisements including informational pamphlets promoting its products but also discussing venereal disease and family planning, the Postal Service notified appellee that the proposed mailings would violate § 3001(e)(2). Appellee then brought an action for declaratory and injunctive relief in Federal District Court, which held that the statute, as applied to the proposed mailings, violated the First Amendment.
Held: As applied to appellee's proposed mailings, § 3001(e)(2) is unconstitutional. Pp. 64-75.
(a) The mailings, which are concededly advertisements, refer to specific products, and are economically motivated, constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as the prevention of venereal disease and family planning. Pp. 64-68.
(b) Advertising for contraceptives not only implicates "substantial individual and societal interests" in the free flow of commercial information, but also relates to activity that is protected from unwarranted governmental interference. Thus, appellee's proposed commercial speech is clearly protected by the First Amendment. P. 69.
(c) Neither of the interests asserted by appellants -- that § 3001(e)(2) shields recipients of mail from materials that they are likely to find offensive and aids parents' efforts to control the manner in which their children become informed about birth control -- is sufficient to justify the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. The fact that protected speech may be offensive to some persons does not justify its suppression, and, in any event, recipients of objectionable mailings can avoid further offensiveness simply by averting their eyes or disposing of the mailings in a trash can. While the second asserted interest is substantial, § 3001(e)(2), as a means of effectuating this interest, fails to withstand scrutiny. The statute's marginal degree of protection afforded those parents who desire to keep their children from confronting such mailings is improperly achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. Section 3001(e)(2) is also defective because it denies parents [p61] truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. Pp. 70-75.
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 75. STEVENS, J., filed an opinion concurring in the judgment, post, p. 80. BRENNAN, J., took no part in the decision of the case.
Foster & Elam v. Neilson
SUPREME COURT OF THE UNITED STATES
Foster & Elam v. Neilson
ERROR TO THE DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
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Argued: --- Decided:
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By the Treaty of St. Ildefonso, made on the 1st of October, 1800, Spain ceded Louisiana to France, and France, by the Treaty of Paris, signed the 30th of April, 1803, ceded it to the United States. Under this treaty, the United States claimed the country between the Iberville and the Perdido. Spain contended that her cession to France comprehended only that territory which, at the time of the cession, was denominated Louisiana, consisting of the Island of New Orleans and the country which had been originally ceded to her by France, west of the Mississippi.
The land claimed by the plaintiffs in error under a grant from the Crown of Spain made after the Treaty of St. Ildefonso lies within the disputed territory, and this case presents the question to whom did the country between the Iberville and Perdido belong after the Treaty of St. Ildefonso?
Had France and Spain agreed upon the boundaries of the retroceded territory before Louisiana was acquired by the United States, that agreement would undoubtedly have ascertained its limits. But the declaration of France, made after parting with the province, cannot be admitted as conclusive. In questions of this character, political considerations have too much influence over the conduct of nations to permit their declarations to decide the course of an independent government in a matter vitally interesting to itself.
However individual judges might construe the Treaty of St. Ildefonso, it is the province of the Court to conform its decisions to the will of the Legislature if that will has been clearly expressed.
After the acts of sovereign power over the territory in dispute which have been exercised by the Legislature and Government of the United States asserting the American construction of the Treaty by which the Government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty, if the Legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied.
If a Spanish grantee had obtained possession of the land in dispute so as to be the defendant, would a court of the United States maintain his title under a Spanish [p254] grant, made subsequent to the acquisition of Louisiana, singly on the principle that the Spanish construction of the Treaty of St. Ildefonso was right, and the American construction wrong? Such a decision would subvert those principles which govern the relations between the Legislative and Judicial Departments, and mark the limits of each.
The sounds construction of the 8th article of the Treaty between the United States and Spain of 22d February 1829, will not enable the Court to apply its provisions to the case of the plaintiff.
The article does not declare that all the grants made by His Catholic Majesty before the 24th of January, 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and it would have repealed those acts of Congress which were repugnant to it; but its language is that those grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract, and, if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on this subject.
A treaty is in the nature of a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument.
In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the Political, not the Judicial, Department, and the Legislature must execute the contract before it can become a rule for the Court.
The plaintiffs in error filed their petition in the district court setting forth that, on the 2d of January, 1804, Jayme Joydra purchased of the Spanish government for a valuable consideration, and was put in possession of, a certain tract or parcel of land situated in the district of Feliciana, thirty miles to the east of the Mississippi within the province of West Florida, containing forty thousand arpents, having the marks and boundaries as laid down in the original plat of survey annexed to the deed of sale, made by Juan Ventura Morales then intendent of the Spanish Government, dated January 2d, 1804, which sale was duly confirmed by the [p255] King of Spain by his resolves dated May 29, 1804, and February 20th, 1805.
May 17, 1805, Jayme Joydra sold and conveyed six thousand arpents, part of the said forty thousand, to one Joseph Maria de la Barba; and upon the same day, Joseph Maria de la Barba sold and conveyed three thousand arpents, parcel of the six thousand so purchased on the same day of Jayme Joydra, to one Francoise Poinet, for the consideration of $750. These three thousand arpents, situated in the district of Feliciana, about thirty miles east of the Mississippi, bounded on the north by the line of demarcation between the United States and the Spanish territory; on the west by lands of Manuel de Lanzos; on the east by the lands of the said Jayme Joydra; and on the south by the lands of the said Joseph Maria de la Barba.
In June, 1811, Francoise Poinet, by her attorney, Louis Leonard Poinet, sold to the petitioners the said three thousand arpents, for the sum of $3,200.
The petition then avers that the three thousand arpents of lands justly and legally belong to them, and that, nevertheless, David Neilson, the defendant, a resident of the parish of east Feliciana in the State of Louisiana, had taken possession of the same, and refuses to deliver the same up.
On the 23d of March 1826, the defendant in the district court filed exceptions to the petition, and the questions before this Court arose out of the third exception, which was as follows:
That the petition does not show any right in the petitioners to the land demanded, which they aver lies in a district formerly called Feliciana, in the province of West Florida; and they claim under a grant made at New Orleans on the 2d of January, 1804, and regularly confirmed by the Spanish Government; whereas, as defendant pleads, all that section of territory called Feliciana was, long before the alleged date of said grant, ceded by Spain to France, and by France to the United States, and the officer making said grant had not then and there any right so to do, and the said grant is wholly null and void.
The judgment of the district court is founded on this exception, [p256] and decides that the grant under which the plaintiffs claim was made by persons having no authority at the time of the grant to grant lands within the territory within which the lands are situated, and dismisses the petition. [p299]
Foster & Elam v. Neilson
ERROR TO THE DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
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Argued: --- Decided:
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By the Treaty of St. Ildefonso, made on the 1st of October, 1800, Spain ceded Louisiana to France, and France, by the Treaty of Paris, signed the 30th of April, 1803, ceded it to the United States. Under this treaty, the United States claimed the country between the Iberville and the Perdido. Spain contended that her cession to France comprehended only that territory which, at the time of the cession, was denominated Louisiana, consisting of the Island of New Orleans and the country which had been originally ceded to her by France, west of the Mississippi.
The land claimed by the plaintiffs in error under a grant from the Crown of Spain made after the Treaty of St. Ildefonso lies within the disputed territory, and this case presents the question to whom did the country between the Iberville and Perdido belong after the Treaty of St. Ildefonso?
Had France and Spain agreed upon the boundaries of the retroceded territory before Louisiana was acquired by the United States, that agreement would undoubtedly have ascertained its limits. But the declaration of France, made after parting with the province, cannot be admitted as conclusive. In questions of this character, political considerations have too much influence over the conduct of nations to permit their declarations to decide the course of an independent government in a matter vitally interesting to itself.
However individual judges might construe the Treaty of St. Ildefonso, it is the province of the Court to conform its decisions to the will of the Legislature if that will has been clearly expressed.
After the acts of sovereign power over the territory in dispute which have been exercised by the Legislature and Government of the United States asserting the American construction of the Treaty by which the Government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty, if the Legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied.
If a Spanish grantee had obtained possession of the land in dispute so as to be the defendant, would a court of the United States maintain his title under a Spanish [p254] grant, made subsequent to the acquisition of Louisiana, singly on the principle that the Spanish construction of the Treaty of St. Ildefonso was right, and the American construction wrong? Such a decision would subvert those principles which govern the relations between the Legislative and Judicial Departments, and mark the limits of each.
The sounds construction of the 8th article of the Treaty between the United States and Spain of 22d February 1829, will not enable the Court to apply its provisions to the case of the plaintiff.
The article does not declare that all the grants made by His Catholic Majesty before the 24th of January, 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and it would have repealed those acts of Congress which were repugnant to it; but its language is that those grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract, and, if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on this subject.
A treaty is in the nature of a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument.
In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the Political, not the Judicial, Department, and the Legislature must execute the contract before it can become a rule for the Court.
The plaintiffs in error filed their petition in the district court setting forth that, on the 2d of January, 1804, Jayme Joydra purchased of the Spanish government for a valuable consideration, and was put in possession of, a certain tract or parcel of land situated in the district of Feliciana, thirty miles to the east of the Mississippi within the province of West Florida, containing forty thousand arpents, having the marks and boundaries as laid down in the original plat of survey annexed to the deed of sale, made by Juan Ventura Morales then intendent of the Spanish Government, dated January 2d, 1804, which sale was duly confirmed by the [p255] King of Spain by his resolves dated May 29, 1804, and February 20th, 1805.
May 17, 1805, Jayme Joydra sold and conveyed six thousand arpents, part of the said forty thousand, to one Joseph Maria de la Barba; and upon the same day, Joseph Maria de la Barba sold and conveyed three thousand arpents, parcel of the six thousand so purchased on the same day of Jayme Joydra, to one Francoise Poinet, for the consideration of $750. These three thousand arpents, situated in the district of Feliciana, about thirty miles east of the Mississippi, bounded on the north by the line of demarcation between the United States and the Spanish territory; on the west by lands of Manuel de Lanzos; on the east by the lands of the said Jayme Joydra; and on the south by the lands of the said Joseph Maria de la Barba.
In June, 1811, Francoise Poinet, by her attorney, Louis Leonard Poinet, sold to the petitioners the said three thousand arpents, for the sum of $3,200.
The petition then avers that the three thousand arpents of lands justly and legally belong to them, and that, nevertheless, David Neilson, the defendant, a resident of the parish of east Feliciana in the State of Louisiana, had taken possession of the same, and refuses to deliver the same up.
On the 23d of March 1826, the defendant in the district court filed exceptions to the petition, and the questions before this Court arose out of the third exception, which was as follows:
That the petition does not show any right in the petitioners to the land demanded, which they aver lies in a district formerly called Feliciana, in the province of West Florida; and they claim under a grant made at New Orleans on the 2d of January, 1804, and regularly confirmed by the Spanish Government; whereas, as defendant pleads, all that section of territory called Feliciana was, long before the alleged date of said grant, ceded by Spain to France, and by France to the United States, and the officer making said grant had not then and there any right so to do, and the said grant is wholly null and void.
The judgment of the district court is founded on this exception, [p256] and decides that the grant under which the plaintiffs claim was made by persons having no authority at the time of the grant to grant lands within the territory within which the lands are situated, and dismisses the petition. [p299]
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