Dissent, Federalism

Pennsylvania v. Union Gas Co

Dissent, Federalism / By

JUSTICE O’CONNOR, dissenting.

I agree with JUSTICE SCALIA that a faithful interpretation of the Eleventh Amendment embodies a concept of state sovereignty which limits the power of Congress to abrogate States’ immunity when acting pursuant to the Commerce Clause. But that view does not command a majority of the Court, thus necessitating an inquiry as to whether Congress intended in CERCLA, 42 U.S.C. § 9601 et seq., and SARA, Pub.L. 99-499, 100 Stat. 1613, to abrogate the States’ Eleventh Amendment immunity. On that question, I join Part I of JUSTICE WHITE’s opinion. I also join Parts II, III, and IV of JUSTICE SCALIA’s opinion concurring in part and dissenting in part.

Civil Rights, Concurrence

Pembaur v. City of Cincinnati

Civil Rights, Concurrence / By

JUSTICE O’CONNOR, concurring in part and concurring in the judgment.

For the reasons stated by JUSTICE WHITE, I agree that the municipal officers here were acting as policymakers within the meaning of Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). As the city of Cincinnati freely conceded, forcible entry of third-party property to effect an arrest was standard operating procedure in May, 1977. Given that this procedure was consistent with federal, state, and local law at the time the case arose, it seems fair to infer that respondent county’s policy was no different. Moreover, under state law as definitively construed by the Court of Appeals, the county officials who opted for the forcible entry “had the authority to approve or disapprove such entries.” Ante at 475 U. S. 485 (WHITE J., concurring). Given this combination of circumstances, I agree with JUSTICE WHITE that the decision to break down the door “sufficiently manifested county policy to warrant reversal of the judgment below.” Ibid. Because, however, I believe that the reasoning of the majority goes beyond that necessary to decide the case, and because I fear that the standard the majority articulates may be misread to expose municipalities to liability beyond that envisioned by the Court in Monell, I join only Parts 475 U. S. S. 477|>II-A of the Court’s opinion and the judgment.

Antonin Scalia, Attorneys, Dissent, William Rehnquist

Peel v. Attorney Disc. Comm’n

Antonin Scalia, Attorneys, Dissent, William Rehnquist / By

Justice O’CONNOR, with whom Chief Justice REHNQUIST and Justice SCALIA join, dissenting.

This case provides yet another example of the difficulties raised by rote application of the commercial speech doctrine in the context of state regulation of professional standards for attorneys. Nothing in our prior cases in this area mandates that we strike down the state regulation at issue here, which is designed to ensure a reliable and ethical profession. Failure to accord States considerable latitude in this area embroils this Court in the micromanagement of the State’s inherent authority to police the ethical standards of the profession within its borders.

Petitioner argues for the first time before this Court that the statement on his letterhead that he is a certified trial specialist is not commercial speech. I agree with the Court that we need not reach this issue in this case. Ante at 496 U. S. 99 -100. We generally do not “decide federal constitutional issues raised here for the first time on review of state court decisions.” Cardinale v. Louisiana, 394 U. S. 437, 394 U. S. 438 (1969).

We recently summarized our standards for commercial speech by attorneys in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985):

The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, misleading, see Friedman v. Rogers, 440 U. S. 1 (1979)…. Commercial speech that is not false or deceptive

Dissent, Federal Taxation, Warren Burger

Paulsen v. Commissioner

Dissent, Federal Taxation, Warren Burger / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.

Today the Court holds that the merger of a stock savings and loan association into a mutual savings and loan association does not qualify as a tax-deferred reorganization under § 368(a)(1)(A) of the Internal Revenue Code. Although the merger meets all the statutory requirements, and although all courts that considered similar transactions before this case found they qualified as tax-deferred reorganizations, see ante at 469 U. S. 132 -133, and n., the Court nevertheless concludes that such a merger fails to qualify under a refined interpretation of the judicially imposed “continuity-of-interest” doctrine. This holding introduces an unfortunate and unnecessary element of uncertainty into an area of our income tax laws where clear and consistent precedent is particularly helpful to both taxpayers and tax collectors. Because I find the Court’s holding unwise as a matter of policy and unwarranted as a matter of law, I respectfully dissent.

The Court concedes that the merger of Commerce Savings and Loan Association of Tacoma, Wash. (Commerce), into Citizens Federal Savings and Loan Association of Seattle (Citizens) met the literal terms of the Internal Revenue Code to qualify the merger for treatment as a tax-deferred reorganization. Ante at 469 U. S. 135. Indeed, the merger between Commerce and Citizens satisfies the statutory definition of a reorganization in § 368(a)(1)(A), and the Citizens mutual share accounts

Concurrence, Judicial Power, William Rehnquist

Patsy v. Board of Regents of State of Florida

Concurrence, Judicial Power, William Rehnquist / By

JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST joins, concurring.

As discussed in JUSTICE POWELL’s dissenting opinion, as well as in the opinion of the court below, considerations of sound policy suggest that a § 1983 plaintiff should be required to exhaust adequate state administrative remedies before filing his complaint. At the very least, prior state administrative proceedings would resolve many claims, thereby decreasing the number of § 1983 actions filed in the federal courts, which are now straining under excessive caseloads. However, for the reasons set forth in the Court’s opinion, this Court already has ruled that, in the absence of additional congressional legislation, exhaustion of administrative remedies is not required in § 1983 actions. Perhaps Congress’ enactment of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. (1976 ed., Supp. IV), which creates a limited exhaustion requirement for prisoners bringing § 1983 suits, will prompt it to reconsider the possibility of requiring exhaustion in the remainder of § 1983 cases. Reluctantly, I concur.

Byron White, Economic Activity, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist

Park N’ Fly Inc. v. Dollar Park and Fly Inc

Byron White, Economic Activity, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In this case we consider whether an action to enjoin the infringement of an incontestable trade or service mark may be defended on the grounds that the mark is merely descriptive. We conclude that neither the language of the relevant statutes nor the legislative history supports such a defense.

I

Petitioner operates long-term parking lots near airports. After starting business in St. Louis in 1967, petitioner subsequently opened facilities in Cleveland, Houston, Boston, Memphis, and San Francisco. Petitioner applied in 1969 to the United States Patent and Trademark Office (Patent Office) to register a service mark consisting of the logo of an airplane and the words “Park ‘N Fly.” [ Footnote 1 ] The registration issued in August 1971. Nearly six years later, petitioner filed an affidavit with the Patent Office to establish the incontestable status of the mark. [ Footnote 2 ] As required by § 15 of the Trademark Act of 1946 (Lanham Act), 60 Stat. 433, as amended, 15 U.S.C. § 1065, the affidavit stated that the mark had been registered and in continuous use for five consecutive years, that there had been no final adverse decision to petitioner’s claim of ownership or right to registration, and that no proceedings involving such rights were pending. Incontestable status provides, subject to the provisions of § 15 and § 33(b) of the Lanham Act, “conclusive evidence of the registrant’s exclusive right to use the registered mark….”

Concurrence, Due Process

Palazzolo v. Rhode Island

Concurrence, Due Process / By

JUSTICE O’CONNOR, concurring.

I join the opinion of the Court but with my understanding of how the issues discussed in Part II-B of the opinion must be considered on remand.

Part II-B of the Court’s opinion addresses the circumstance, present in this case, where a takings claimant has acquired title to the regulated property after the enactment of the regulation at issue. As the Court holds, the Rhode Island Supreme Court erred in effectively adopting the sweeping rule that the preacquisition enactment of the use restriction ipso facto defeats any takings claim based on that use restriction. Accordingly, the Court holds that petitioner’s claim under Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), “is not barred by the mere fact that title was acquired after the effective date of the state-imposed restriction.” Ante, at 630.

The more difficult question is what role the temporal relationship between regulatory enactment and title acquisition plays in a proper Penn Central analysis. Today’s holding does not mean that the timing of the regulation’s enactment relative to the acquisition of title is immaterial to the Penn Central analysis. Indeed, it would be just as much error to expunge this consideration from the takings inquiry as it would be to accord it exclusive significance. Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investmentbacked

Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist

Oregon v. Elstad

Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case requires us to decide whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), without more, “taints” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights. Respondent, Michael James Elstad, was convicted of burglary by an Oregon trial court. The Oregon Court of Appeals reversed, holding that respondent’s signed confession, although voluntary, was rendered inadmissible by a prior remark made in response to questioning without benefit of Miranda warnings. We granted certiorari, 465 U.S. 1078 (1984), and we now reverse.

I

In December, 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk County, Ore., was burglarized. Missing were art objects and furnishings valued at $150,000. A witness to the burglary contacted the Polk County Sheriff’s Office, implicating respondent Michael Elstad, an 18-year-old neighbor and friend of the Grosses’ teenage son. Thereupon, Officers Burke and McAllister went to the home of respondent Elstad, with a warrant for his arrest. Elstad’s mother answered the door. She led the officers to her son’s room, where he lay on his bed, clad in shorts and listening to his stereo. The officers asked him to get dressed and to accompany them into the living room. Officer McAllister asked respondent’s mother to step into the kitchen, where he explained that

Antonin Scalia, Clarence Thomas, Criminal Procedure, Dissent, William Rehnquist

Old Chief v. United States

Antonin Scalia, Clarence Thomas, Criminal Procedure, Dissent, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join, dissenting.

The Court today announces a rule that misapplies Federal Rule of Evidence 403 and upsets, without explanation, longstanding precedent regarding criminal prosecutions. I do not agree that the Government’s introduction of evidence that reveals the name and basic nature of a defendant’s prior felony conviction in a prosecution brought under 18 U. S. C. § 922(g)(1) “unfairly” prejudices the defendant within the meaning of Rule 403. Nor do I agree with the Court’s newly minted rule that a defendant charged with violating

course, require some jury instruction to explain it (just as it will require some discretion when the indictment is read). A redacted judgment in this case, for example, would presumably have revealed to the jury that Old Chief was previously convicted in federal court and sentenced to more than a year’s imprisonment, but it would not have shown whether his previous conviction was for one of the business offenses that do not count, under § 921(a)(20). Hence, an instruction, with the defendant’s consent, would be necessary to make clear that the redacted judgment was enough to satisfy the status element remaining in the case. The Government might, indeed, propose such a redacted judgment for the trial court to weigh against a defendant’s offer to admit, as indeed the Government might do even if the defendant’s admission had been received into evidence. § 922(g)(1)

Anthony Kennedy, Antonin Scalia, Byron White, Civil Rights, Clarence Thomas, David Souter, Harry Blackmun, John Paul Stevens, Majority, William Rehnquist

Oklahoma Tax Comm’n v. Sac and Fox Nation

Anthony Kennedy, Antonin Scalia, Byron White, Civil Rights, Clarence Thomas, David Souter, Harry Blackmun, John Paul Stevens, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In this case, we consider whether the State of Oklahoma may impose income taxes or motor vehicle taxes on the members of the Sac and Fox Nation.

I

The Sac and Fox Nation (Tribe) is a federally recognized Indian tribe located in the State of Oklahoma. Until the mid-18th century, the Tribe lived in the Great Lakes region of the United States. M. Wright, A Guide to the Indian Tribes of Oklahoma 225 (1951). In 1789, it entered into its first treaty with the United States and ceded much of its land. See Treaty at Fort Harmar, 7 Stat. 28. That was only the first of many agreements between the Government and the Tribe in which the Tribe surrendered its land and moved elsewhere. As part of its gradual, treaty-imposed migration, the Tribe stopped briefly along the Mississippi and Missouri Rivers in what are now the States of Illinois, Missouri, Iowa, and Nebraska. Wright, Guide to Indian

Briefs of amici curiae urging affirmance were filed for the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation et al. by Reid Peyton Chambers and Jeannette Wolfley; for the Cheyenne-Arapaho Tribes of Oklahoma et al. by Melody L. McCoy, Bertram E. Hirsch, and Thomas W Fredericks; for the Choctaw Nation of Oklahoma by Bob Rabon; and for the Navajo Nation et al. by Paul E. Frye, Wayne H. Bladh, and Stanley M. Pollack. Tribes of Oklahoma, at 225-226. In the mid-19th century, the Sac and Fox Nation ceded land in several States for two reservatio