Today in Supreme Court History: November 30, 1981

11/30/1981: Harlow v. Fitzgerald argued.

The Burger Court (1981)

Comments

[Dan Schiavetta]

Porter v. McCollum, 558 U.S. 30 (decided November 30, 2009): ineffective assistance of counsel where mental health effects of combat experience were not presented at competency and mitigation hearings

California v. Mitchell Bros. Santa Ana Theater, 454 U.S. 90 (decided November 30, 1981): “beyond reasonable doubt” is not the proper standard of proof in a civil action brought by a city attorney on an obscenity statute (here, showing pornographic films)

Hoeper v. Tax Commission of Wisconsin, 284 U.S. 206 (decided November 30, 1931): struck down statute combining wife’s income with husband’s for determining his income tax; reviewing historical change in legal status of women, Court notes that she is independent agent with sole control over her income

[F.D. Wolf]

Hoeper was a 6-3 decision. Justice Roberts, the most junior member of the Court wrote the majority opinion. Justice Holmes, joined by Brandeis and Stone, dissented. This was the 90-year-old Holmes’ last dissent and third-to-last opinion before stepping down from the Court six weeks later.

The majority conceded that, at common law, a husband and wife were “one”, and that the income of a wife was considered that of her husband to dispose of as he saw fit. A husband was also responsible for his wife’s debts. However, as Wisconsin had chosen to supplant common law and treat husband and wife as separate entities, it was now depriving him of his property without due process by counting his wife’s income as his income. Holmes disagreed, writing that the common law of marriage was not an all-or-nothing proposition, and that a legislature might keep some of it, while jettisoning other parts of it.

This decision has never been explicitly overturned. But, wait a minute, a keen observer may be asking himself, if it is unconstitutional to require spouses to aggregate their incomes, how does the IRS get away with requiring it to this very day? That is a good question. The answer is everyone ignores this decision because Holmes was clearly correct.

The first case to challenge this federal “marriage penalty” was Johnson v. United States, 422 F.Supp. 958 (N.D. Ind. 1976). That court distinguished Hoeper by noting that under the federal regime, spouses had the option to file separately. Of course, this is about as meaningless as a distinction could be, as the separate filing still required aggregation of spousal incomes. But, as the Court of Claims wrote in another case upholding the requirement:

A third contention offered by plaintiffs is that the tax rates in question are invalidated by [Hoeper. Hoeper adjudicated the constitutionality of a Wisconsin law requiring the aggregation of the separate incomes of spouses. The combined incomes were then taxed at rates higher than would apply if the taxpayers were single and filing separately. It does not control our decision to note that dissents in that period by the Justices who dissented in that case, Holmes, Brandeis, and Stone, are usually regarded as law today. In most respects, the Wisconsin law is on all fours with the scheme adopted under the Tax Reform Act of 1969.

Mapes v. United States, 576 F.2d 896, 902 (Ct. Cl. 1978) (internal citation omitted).

[Dan Schiavetta]

I’m always gratified when my comments provoke interesting and learned observations. Thanks!

[F.D. Wolf]

And you deserve many thanks for the great prompts.

[Dr. Ed 2]

The question I have is the so-called "innocent spouse" -- the Feds didn't have withholding back then, I doubt the state did, so you could have one spouse run up a massive debt of unpaid taxes without the knowledge of the other -- and both being jointly liable.

Once a husband was no longer liable for his wife's debts, ought not that also apply to her tax debts?

[Syd Henderson]

The Case of the Day seems to make Nixon v. Fitzgerald almost inevitable.

[not guilty]

Harlow and Nixon were decided on the same day. Both arose out of the same damages action in the district court.

Donald Trump is now seeking to extend the absolute immunity from civil suits for damages recognized in Nixon v. Fitzgerald to bar criminal prosecution for acts taken as president. The Nixon Court, however, opined "that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions." 457 U.S. 731, 754 n.37 (1982), citing United States v. Gillock, 445 U. S. 360, 371-373 (1980). Chief Justice Burger (who was essential to the result in the 5-4 decision) opined in his concurrence, "The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims." 457 U.S. at 759.

[F.D. Wolf]

They were really the same case, argued on the same day and decided the same day. Fitzgerald sued Nixon and other government officials for wrongfully causing him to lose his position as a federal contractor. In one opinion, a 5-4 Court held the President had absolute immunity for his official acts, and in the other, by an 8-1 vote, held the other officials had qualified immunity.

[Krayt]

So if you are a government official, you can get qualified immunity if the law is not clear.

But if you are a company, you can get a civil fine if the regulation you ostensibly violated isn’t clear, and the regulatory agency clarifies it after the fact, sometimes even changing their position so as to fit illegality to you, and you still have to pay the fine.

Got it.

[Dan Schiavetta]

"A certain danger lurks in the ability of an agency to perfunctorily mold its regulations to conform to its instant needs." William O. Douglas, in his last opinion, Northern Indiana Public Service Co. v. Izaak Walton League, Nov. 12, 1975.

[Dan Schiavetta]

The other two standards of proof are "preponderance of the evidence" and "clear and convincing". The Court left it to the state court to decide. It held only that where the First Amendment is concerned "beyond a reasonable doubt" is not required by the Due Process clause. It can be required by state law, but doesn't have to be. I'll rephrase.

The Court was disagreeing with a statement made by Brennan when concurring in an earlier case. Here, Brennan and Marshall dissented.