Concurrence, David Souter, Due Process

Medina v. California

Concurrence, David Souter, Due Process / By

JUSTICE O’CONNOR, with whom JUSTICE SOUTER joins, concurring in the judgment.

I concur in the judgment of the Court, but I reject its intimation that the balancing of equities is inappropriate in evaluating whether state criminal procedures amount to due process. Ante, at 443-446. We obviously applied the balancing test of Mathews v. Eldridge, 424 U. S. 319 (1976), in Ake v. Oklahoma, 470 U. S. 68 (1985), a case concerning criminal procedure, and I do not see that Ake can be distinguished here without disavowing the analysis on which it rests. The balancing of equities that Mathews v. Eldridge outlines remains a useful guide in due process cases.

In Mathews, however, we did not have to address the question of how much weight to give historical practice; in the context of modern administrative procedures, there was no O’CONNOR, J., concurring in judgment

historical practice to consider. The same is true of the new administrative regime established by the federal criminal sentencing guidelines, and I have agreed that Mathews may be helpful in determining what process is due in that context. See Burns v. United States, 501 U. S. 129, 147-148 (1991) (SOUTER, J., dissenting). While I agree with the Court that historical pedigree can give a procedural practice a presumption of constitutionality, see Patterson v. New York, 432 U. S. 197, 211 (1977), the presumption must surely be rebuttable.

The concept of due process is, “perhaps, the least frozen concept of our law-the least confined

Civil Rights, Dissent

Georgia v. McCollum

Civil Rights, Dissent / By

JUSTICE O’CONNOR, dissenting.

The Court reaches the remarkable conclusion that criminal defendants being prosecuted by the State act on behalf of their adversary when they exercise peremptory challenges during jury selection. The Court purports merely to follow precedents, but our cases do not compel this perverse result. To the contrary, our decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions.

I

It is well and properly settled that the Constitution’s equal protection guarantee forbids prosecutors to exercise peremptory challenges in a racially discriminatory fashion. See Batson v. Kentucky, 476 U. S. 79 (1986); Powers v. Ohio, 499 U. S. 400, 409 (1991). The Constitution, however, affords no similar protection against private action. “Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendmen[t]…, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be.” National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179, 191 (1988) (footnote omitted). This distinction appears on the face of the Fourteenth Amendment, which provides that “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14, § 1 (emphasis added). The critical but straightforward question this case presents is whether criminal

Anthony Kennedy, Antonin Scalia, Byron White, Economic Activity, Majority, William Rehnquist

Gade v. National Solid Wastes Management Assn

Anthony Kennedy, Antonin Scalia, Byron White, Economic Activity, Majority, William Rehnquist / By

JUSTICE O’CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Part II in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.

In 1988, the Illinois General Assembly enacted the Hazardous Waste Crane and Hoisting Equipment Operators Licensing Act, Ill. Rev. Stat., ch. 111, “7701-7717 (1989), and the Hazardous Waste Laborers Licensing Act, Ill. Rev. Stat., ch. 111, “7801-7815 (1989) (together, licensing acts). The stated purpose of the licensing acts is both “to promote job safety” and “to protect life, limb and property.” “7702, 7802. In this case, we consider whether these “dual impact” statutes, which protect both workers and the general public, are pre-empted by the federal Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U. S. C. § 651 et seq. (OSH Act), and the standards promulgated thereunder by the Occupational Safety and Health Administration (OSHA).

*Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Jane Lauer Barker and Richard Corenthal, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Michael E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan,

Clarence Thomas, Dissent, Federal Taxation

United States v. Burke

Clarence Thomas, Dissent, Federal Taxation / By

JUSTICE O’CONNOR, with whom JUSTICE THOMAS joins, dissenting.

The Court holds that respondents, unlike most plaintiffs who secure compensation after suffering personal injury, must pay tax on their recoveries for alleged discrimination because suits under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 Stat. § 2000e et seq., do not involve “tort type rights.” This is so, the Court says, because “Congress declined to recompense Title VII plaintiffs for anything beyond the wages properly due them.” Ante, at 241. I cannot agree. In my view, the remedies available to Title VII plaintiffs do not fix the character of the right they seek to enforce. The purposes and operation of Title VII are closely analogous to those of tort law, and that similarity should determine excludability of recoveries for personal injury under 26 U. S. C. § 104(a)(2).

I

Section 104(a)(2) allows taxpayers to exclude from gross income “damages received… on account of personal injuries or sickness.” The Court properly defers to an Internal Revenue Service (IRS) regulation that reasonably interprets the words “damages received” to mean “an amount received… through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution.” 26 CFR § 1.104-1(c) (1991). See ante, at 234; United States v. Correll, 389 U. S. 299 (1967). Therefore, respondents may exclude from gross income any amount they received

Concurrence, Criminal Procedure

Sochor v. Florida

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring.

I join the Court’s opinion but write separately to set forth my understanding that the Court does not hold that an appellate court can fulfill its obligations of meaningful review by simply reciting the formula for harmless error. In Chapman v. California, 386 U. S. 18 (1967), we held that before a federal constitutional error can be held harmless, the reviewing court must find “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id., at 24. This is a justifiably high standard, and while it can be met without uttering the magic words “harmless error,” see ante, at 540, the reverse is not true. An appellate court’s bald assertion that an error of constitutional dimensions was “harmless” cannot substitute for a principled explanation of how the court reached that conclusion. In Clemons v. Mississippi, 494 U. S. 738 (1990), for example, we did not hesitate to remand a case for “a detailed explanation based on the record” when the lower court failed to undertake an explicit analysis supporting its “cryptic,” onesentence conclusion of harmless error. Id., at 753. I agree with the Court that the Florida Supreme Court’s discussion of the proportionality of petitioner’s sentence is not an acceptable substitute for harmless error analysis, see ante, at 539-540, and I do not understand the Court to say that the mere addition of the words “harmless error” would have sufficed to satisfy the dictates of Clemons.

Concurrence, Economic Activity

Evans v. United States

Concurrence, Economic Activity / By

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

I join Parts I and II of the Court’s opinion, because in my view they correctly answer the question on which the Court granted certiorari-whether or not an act of inducement is an element of the offense of extortion under color of official right. See Pet. for Cert. i. The issue raised by the dissent and discussed in Part III of the Court’s opinion is not fairly included in this question, see this Court’s Rule 14.1(a), and sound prudential reasons suggest that the Court should not address it. Cf. Yee v. Escondido, 503 U. S. 519, 535-538 (1992). Neither party in this case has briefed or argued the question. A proper resolution of the issue requires a detailed examination of common law extortion cases, which in turn requires intensive historical research. As there appear to be substantial arguments on either side, we would be far more assured of arriving at the correct result were we to await a case in which the issue had been addressed by the parties. It is unfair to the United States to decide a case on a ground not raised by the petitioner and which the United States has had no opportunity to address. For these reasons, I join neither the dissent nor Part III of the Court’s opinion, and I express no view as to which is correct.

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, Due Process, John Paul Stevens, Majority, William Rehnquist

Yee v. Escondido

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, Due Process, John Paul Stevens, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” Most of our cases interpreting the Clause fall within two distinct classes. Where the government authorizes a physical occupation of property (or actually takes title), the Takings Clause generally requires compensation. See,e. g., Lorettov.Teleprompter Manhattan CATV Corp.,458 U. S. 419, 426 (1982). But where the government merely regulates the use of property, compensation

J. Popeo, Paul D. Kamenar, and Jonathan K. Van Patten; and for the Western Mobilehome Association by Michael A. Willemsen and David Spangenberg.

Briefs of amici curiae urging affirmance were filed for the city of San Jose et al. by Joan R. Gallo, George Rios, Manuela Albuquerque, Stanley C. Hatch, Glenn R. Watson, William Camil, Lynn R. McDougal, Scott H. Howard, David J. Erwin, Robert L. Kress, Charles J. Williams, David H. Hirsch, Steven F. Nord, Marc G. Hynes, John L. Cook, Daniel S. Hentschke, Gary L. Gillig, Jean Leonard Harris, David E. Schricker, Michael F. Dean, James Penman, Peter D. Bulens, John W Witt, Louise H. Renne, James P. Botz, Mark G. Sellers, Robert B. Ewing, Angil P. Morris, James G. Rourke, and Thomas Haas; for the American Association of Retired Persons by Steven S. Zalesnick and Joan Wise; for the city of Santa Monica et al. by Robert M. Myers, Joseph Lawrence, Martin Tachiki, Barry Rosenbaum, David

Anthony Kennedy, Antonin Scalia, Byron White, Civil Rights, Harry Blackmun, John Paul Stevens, Majority

Wyatt v. Cole

Anthony Kennedy, Antonin Scalia, Byron White, Civil Rights, Harry Blackmun, John Paul Stevens, Majority / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), we left open the question whether private defendants charged with 42 U. S. C. § 1983 liability for invoking state replevin, garnishment, and attachment statutes later declared unconstitutional are entitled to qualified immunity from suit. 457 U. S., at 942, n. 23. We now hold that they are not.

I

This dispute arises out of a soured cattle partnership. In July 1986, respondent Bill Cole sought to dissolve his partnership with petitioner Howard Wyatt. When no agreement could be reached, Cole, with the assistance of an OCTOBER TERM, 1991 Syllabus WYATT v. COLE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 91-126. Argued January 14, 1992-Decided May 18, 1992 With the assistance of respondent Robbins, an attorney, respondent Cole filed a complaint under the Mississippi replevin statute against his partner, petitioner Wyatt. Mter Cole refused to comply with a state court order to return to Wyatt property seized under the statute, Wyatt brought suit in the Federal District Court under 42 U. S. C. § 1983, challenging the state statute’s constitutionality and seeking injunctive relief and damages. Among other things, the court held the statute unconstitutional and assumed that Cole was subject to liability under Lugar v. Edmondson Oil Co., 457 U. S. 922, in which this Court ruled that private defendants invoking state replevin, garnishment, and

Concurrence, Due Process

Foucha v. Louisiana

Concurrence, Due Process / By

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

Louisiana asserts that it may indefinitely confine Terry Foucha in a mental facility because, although not mentally ill, he might be dangerous to himself or to others if released. For the reasons given in Part II of the Court’s opinion, this contention should be rejected. I write separately, however, to emphasize that the Court’s opinion addresses only the specific statutory scheme before us, which broadly permits in definite confinement of sane insanity acquittees in psychiatric facilities. This case does not require us to pass judgment on more narrowly drawn laws that provide for detention of insanity acquittees, or on statutes that provide for punishment of persons who commit crimes while mentally ill.

I do not understand the Court to hold that Louisiana may never confine dangerous insanity acquittees after they regain mental health. Under Louisiana law, defendants who carry the burden of proving insanity by a preponderance of the evidence will “escape punishment,” but this affirmative defense becomes relevant only after the prosecution establishes beyond a reasonable doubt that the defendant committed criminal acts with the required level of criminal intent. State v. Marmillion, 339 So. 2d 788, 796 (La. 1976). Although insanity acquittees may not be incarcerated as criminals or penalized for asserting the insanity defense, see Jones v. United States, 463 U. S. 354, 368-369, and n. 18 (1983), this finding

Anthony Kennedy, Criminal Procedure, Dissent, Harry Blackmun, John Paul Stevens

Keeney v. Tamayo-Reyes

Anthony Kennedy, Criminal Procedure, Dissent, Harry Blackmun, John Paul Stevens / By

JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN, JUSTICE STEVENS, and JUSTICE KENNEDY join, dissenting.

Under the guise of overruling “a remnant of a decision,” ante, at 8, and achieving “uniformity in the law,” ante, at 10, the Court has changed the law of habeas corpus in a fundamental way by effectively overruling cases decided long before Townsend v. Sain, 372 U. S. 293 (1963). I do not think this change is supported by the line of our recent procedural default cases upon which the Court relies: In my view, the balance of state and federal interests regarding whether a federal court will consider a claim raised on habeas cannot be simply lifted and transposed to the different question whether, once the court will consider the claim, it should hold an evidentiary hearing. Moreover, I do not think the Court’s decision can be reconciled with 28 U. S. C. § 2254(d), a statute Congress enacted three years after Townsend.

I

Jose Tamayo-Reyes’ habeas petition stated that because he does not speak English he pleaded nolo contendere to manslaughter without any understanding of what “manslaughter” means. App. 58. If this assertion is true, his conviction was unconstitutionally obtained, see Henderson v. Morgan, 426 U. S. 637, 644-647 (1976), and Tamayo-Reyes would be entitled to a writ of habeas corpus. Despite the Court’s attempt to characterize his allegation as a technical quibble-“his translator had not translated accurately and completely for him the mens rea element of manslaughter,”