source: Caselaw Access Project

author: Justice Ginsburg Justice Thomas,

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text:
    CITY OF EDMONDS v. OXFORD HOUSE, INC., et al.
    No. 94-23.
    Argued March 1, 1995
    Decided May 15, 1995

      Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Souter, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia and Kennedy, JJ., joined, post, p. 738.

      W. Scott Snyder argued the cause and filed briefs for petitioner.

      William F. Sheehan argued the cause for private respondents. With him on the brief were Elizabeth M. Brown, David E. Jones, John P. Reiman, Robert I. Heller, and Steven R. Shapiro.

      Deputy Solicitor General Bender argued the cause for respondent United States. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Cornelia T. L. Pillard, Jessica Dunsay Silver, and Gregory B. Friel.

      Briefs of amici curiae urging reversal were filed for the City of Lubbock by Jean E. Shotts, Jr.; for the City of Mountlake Terrace by Gregory G. Schrag; for the Township of Upper St. Clair by Robert N. Hackett; and for the International City/County Management Association et al. by Richard Ruda, Lee Fennell, and Michael J. Wahoske.

      Briefs of amici curiae urging affirmance were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and Stanley J. Eichner, Donna L. Palermino, and Leo T. Sorokin, Assistant Attorneys General, and by the Attorneys General for their respective jurisdictions as follows: Grant Woods of Arizona, Winston Bryant of Arkansas, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, Frankie Sue Del Papa of Nevada; Tom Udall of New Mexico, Charles W. Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Rosalie Simmonds Ballantine of the Virgin Islands, and Darrell V. McGrow, Jr., of West Virginia; for the American Association on Mental Retardation et al. by Lois G. Williams, Jerrold J. Ganzfried, Gregg A Hand, Leonard S. Rubenstein, and Ira A Burnim; for the American Association of Retired Persons by Steven S. Zaleznick, Michael Schuster, Bruce B. Vignery, and Deborah M. Zuakerman; for the American Planning Association by Brian W. Blaesser and Daniel M. Lauber; for the American Society of Addiction Medicine et al. by Paul M. Smith, Seth P. Stein, Robert L. Schonfeld, Richard Taranto, and Carolyn I. Polowy; for the American Train Dispatchers Division of Brotherhood of Locomotive Engineers et al. by Lawrence M. Mann; and for the National Fair Housing Alliance by Timothy C. Hester, Robert A Long, Jr., and Christina T. Uhlrich.

      Briefs of amici curiae were filed for the City of Fultondale by Palmer W. Norris and Fred Blanton, Jr.; and for the Pacific Legal Foundation by Ronald A Zumbrun and Anthony T. Caso.

   Justice Ginsburg

delivered the opinion of the Court.

The Fair Housing Act (FHA or Act) prohibits discrimination in housing against, inter alijos, persons with handicaps. Section 807(b)(1) of the Act entirely exempts from the FHA’s compass “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” 42 U. S. C. § 3607(b)(1). This case presents the question whether a provision in petitioner City of Edmonds’ zoning code qualifies for §3607(b)(l)’s complete exemption from FHA scrutiny. The provision, governing areas zoned for single-family dwelling units, defines “family” as “persons [without regard to number] related by genetics, adoption, or marriage, or a group of five or fewer [unrelated] persons.” Edmonds Community Development Code (ECDC) §21.30.010 (1991).

The defining provision at issue describes who may compose a family unit; it does not prescribe “the maximum number of occupants” a dwelling unit may house. We hold that § 3607(b)(1) does not exempt prescriptions of the family-defining kind, i. e., provisions designed to foster the family character of a neighborhood. Instead, § 3607(b)(l)’s absolute exemption removes from the FHA’s scope only total occupancy limits, i. e., numerical ceilings that serve to prevent overcrowding in living quarters.

I

In the summer of 1990, respondent Oxford House opened a group home in the City of Edmonds, Washington (City), for 10 to 12 adults recovering from alcoholism and drug addiction. The group home, called Oxford House-Edmonds, is located in a neighborhood zoned for single-family residences. Upon learning that Oxford House had leased and was operating a home in Edmonds, the City issued criminal citations to the owner and a resident of the house. The citations charged violation of the zoning code rule that defines who may live in single-family dwelling units. The occupants of such units must compose a “family,” and family, under the City’s defining rule, “means an individual or two or more persons related by genetics, adoption, or marriage, or a group of five or fewer persons who are not related by genetics, adoption, or marriage.” ECDC §21.30.010. Oxford House-Edmonds houses more than five unrelated persons, and therefore does not conform to the code.

Oxford House asserted reliance on the Fair Housing Act, 102 Stat. 1619, 42 U. S. C. §3601 et seq., which declares it unlawful “[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” § 3604(f)(1)(A). The parties have stipulated, for purposes of this litigation, that the residents of Oxford House-Edmonds “are recovering alcoholics and drug addicts and are handicapped persons within the meaning” of the Act. App. 106.

Discrimination covered by the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s] equal opportunity to use and enjoy a dwelling.” § 3604(f)(3)(B). Oxford House asked Edmonds to make a “reasonable accommodation” by allowing it to remain in the single-family dwelling it had leased. Group homes for recovering substance abusers, Oxford urged, need 8 to 12 residents to be financially and therapeutically viable. Edmonds declined to permit Oxford House to stay in a single-family residential zone, but passed an ordinance listing group homes as permitted uses in multifamily and general commercial zones.

Edmonds sued Oxford House in the United States District Court for the Western District of Washington, seeking a declaration that the FHA does not constrain the City’s zoning code family definition rule. Oxford House counterclaimed under the FHA, charging the City with failure to make a “reasonable accommodation” permitting maintenance of the group home in a single-family zone. The United States filed a separate action on the same FHA “reasonable accommodation” ground, and the two cases were consolidated. Edmonds suspended its criminal enforcement actions pending resolution of the federal litigation.

On cross-motions for summary judgment, the District Court held that ECDC §21.30.010, defining “family,” is exempt from the FHA under § 3607(b)(1) as a “reasonable . . . restriction] regarding the maximum number of occupants permitted to occupy a dwelling.” App. to Pet. for Cert. B-7. The United States Court of Appeals for the Ninth Circuit reversed; holding §3607(b)(l)’s absolute exemption inapplicable, the Court of Appeals remanded the cases for further consideration of the claims asserted by Oxford House and the United States. Edmonds v. Washington State Building Code Council, 18 F. 3d 802 (1994).

The Ninth Circuit’s decision conflicts with an Eleventh Circuit decision declaring exempt under § 3607(b)(1) a family definition provision similar to the Edmonds prescription. See Elliott v. Athens, 960 F. 2d 975 (1992). We granted certiorari to resolve the conflict, 513 U. S. 959 (1994), and we now affirm the Ninth Circuit’s judgment.

II

The sole question before the Court is whether Edmonds’ family composition rule qualifies as a “restriction regarding the maximum number of occupants permitted to occupy a dwelling” within the meaning of the FHA’s absolute exemption. 42 U. S. C. § 3607(b)(1). In answering this question, we are mindful of the Act’s stated policy “to provide, within constitutional limitations, for fair housing throughout the United States.” §3601. We also note precedent recognizing the FHA’s “broad and inclusive” compass, and therefore according a “generous construction” to the Act’s complaint-filing provision. Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 209, 212 (1972). Accordingly, we regard this case as an instance in which an exception to “a general statement of policy” is sensibly read “narrowly in order to preserve the primary operation of the [policy].” Commissioner v. Clark, 489 U. S. 726, 739 (1989).

A

Congress enacted § 3607(b)(1) against the backdrop of an evident distinction between municipal land-use restrictions and maximum occupancy restrictions.

Land-use restrictions designate “districts in which only compatible uses are allowed and incompatible uses are excluded.” D. Mandelker, Land Use Law §4.16, pp. 113— 114 (3d ed. 1993) (hereinafter Mandelker). These restrictions typically categorize uses as single-family residential, multiple-family residential, commercial, or industrial. See, e. g., 1 E. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning §8.01, pp. 8-2 to 8-3 (4th ed. 1995); Mandelker § 1.03, p. 4; 1 E. Yokley, Zoning Law and Practice § 7-2, p. 252 (4th ed. 1978).

Land-use restrictions aim to prevent problems caused by the “pig in the parlor instead of the barnyard.” Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 388 (1926). In particular, reserving land for single-family residences preserves the character of neighborhoods, securing “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Village of Belle Terre v. Boraas, 416 U. S. 1, 9 (1974); see also Moore v. East Cleveland, 431 U. S. 494, 521 (1977) (Burger, C. J., dissenting) (purpose of East Cleveland’s single-family zoning ordinance “is the traditional one of preserving certain areas as family residential communities”). To limit land use to single-family residences, a municipality must define the term “family”; thus family composition rules are an essential component of single-family residential use restrictions.

Maximum occupancy restrictions, in contradistinction, cap the number of occupants per dwelling, typically in relation to available floor space or the number and type of rooms. See, e. g., International Conference of Building Officials, Uniform Housing Code § 503(b) (1988); Building Officials and Code Administrators International, Inc., BOCA National Property Maintenance Code §§PM-405.3, PM-405.5 (1993) (hereinafter BOCA Code); Southern Building Code Congress, International, Inc., Standard Housing Code §§306.1, 306.2 (1991); E. Mood, APHA-CDC Recommended Minimum Housing Standards §9.02, p. 37 (1986) (hereinafter APHACDC Standards). These restrictions ordinarily apply uniformly to all residents of all dwelling units. Their purpose is to protect health and safety by preventing dwelling overcrowding. See, e.g., BOCA Code §§PM-101.3, PM-405.3, PM-405.5 and commentary; Abbott, Housing Policy, Housing Codes and Tenant Remedies: An Integration, 56 B. U. L. Rev. 1, 41-45 (1976).

We recognized this distinction between maximum occupancy restrictions and land-use restrictions in Moore v. East Cleveland, 431 U. S. 494 (1977). In Moore, the Court held unconstitutional the constricted definition of “family” contained in East Cleveland’s housing ordinance. East Cleveland’s ordinance “selected] certain categories of relatives who may live together and declare[d] that others may not”; in particular, East Cleveland’s definition of “family” made “a crime of a grandmother’s choice to live with her grandson.” Id., at 498-499 (plurality opinion). In response to East Cleveland’s argument that its aim was to prevent overcrowded dwellings, streets, and schools, we observed that the municipality’s restrictive definition of family served the asserted, and undeniably legitimate, goals “marginally, at best.” Id., at 500 (footnote omitted). Another East Cleveland ordinance, we noted, “specifically addressed ... the problem of overcrowding”; that ordinance tied “the maximum permissible occupancy of a dwelling to the habitable floor area.” Id., at 500, n. 7; accord, id., at 520, n. 16 (Stevens, J., concurring in judgment). Justice Stewart, in dissent, also distinguished restrictions designed to “preserv[e] the character of a residential area,” from prescription of “a minimum habitable floor area per person,” id., at 589, n. 9, in the interest of community health and safety.

Section 3607(b)(l)’s language — “restrictions regarding the maximum number of occupants permitted to occupy a dwelling” — surely encompasses maximum occupancy restrictions. But the formulation does not fit family composition rules typically tied to land-use restrictions. In sum, rules that cap the total number of occupants in order to prevent overcrowding of a dwelling “plainly and unmistakably,” see A H. Phillips, Inc. v. Walling, 324 U. S. 490, 493 (1945), fall within §3607(b)(l)’s absolute exemption from the FHA’s governance; rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain, do not.

B

Turning specifically to the City’s Community Development Code, we note that the provisions Edmonds invoked against Oxford House, ECDC §§ 16.20.010 and 21.30.010, are classic examples of a use restriction and complementing family composition rule. These provisions do not cap the number of people who may live in a dwelling. In plain terms, they direct that dwellings be used only to house families. Captioned “USES,” ECDC §16.20.010 provides that the sole “Permitted Primary Us[e]” in a single-family residential zone is “[s]ingle-family dwelling units.” Edmonds itself recognizes that this provision simply “defines those uses permitted in a single family residential zone.” Pet. for Cert. 3.

A separate provision caps the number of occupants a dwelling may house, based on floor area:

“Floor Area. Every dwelling unit shall have at least one room which shall have not less than 120 square feet of floor area. Other habitable rooms, except kitchens, shall have an area of not less than 70 square feet. Where more than two persons occupy a room used for sleeping purposes, the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two.” ECDC § 19.10.000 (adopting Uniform Housing Code § 503(b) (1988)).

This space and occupancy standard is a prototypical maximum occupancy restriction.

Edmonds nevertheless argues that its family composition rule, ECDC §21.30.010, falls within § 3607(b)(1), the FHA exemption for maximum occupancy restrictions, because the rule caps at five the number of unrelated persons allowed to occupy a single-family dwelling. But Edmonds’ family composition rule surely does not answer the question: “What is the maximum number of occupants permitted to occupy a house?” So long as they are related “by genetics, adoption, or marriage,” any number of people can live in a house. Ten siblings, their parents and grandparents, for example, could dwell in a house in Edmonds’ single-family residential zone without offending Edmonds’ family composition rule.

Family living, not living space per occupant, is what ECDC §21.30.010 describes. Defining family primarily by biological and legal relationships, the provision also accommodates another group association: Five or fewer unrelated people are allowed to live together as though they were family. This accommodation is the peg on which Edmonds rests its plea for § 3607(b)(1) exemption. Had the City defined a family solely by biological and legal links, § 3607(b)(1) would not have been the ground on which Edmonds staked its case. See Tr. of Oral Arg. 11-12, 16. It is curious reasoning indeed that converts a family values preserver into a maximum occupancy restriction once a town adds to a related persons prescription “and also two unrelated persons.”

Edmonds additionally contends that subjecting single-family zoning to FHA scrutiny will “overturn Euclidian zoning” and “destroy the effectiveness and purpose of single-family zoning.” Brief for Petitioner 11,25. This contention both ignores the limited scope of the issue before us and exaggerates the force of the FHA’s antidiscrimination provisions. We address only whether Edmonds’ family composition rule qualifies for § 3607(b)(1) exemption. Moreover, the FHA antidiscrimination provisions, when applicable, require only “reasonable” accommodations to afford persons with handicaps “equal opportunity to use and enjoy” housing. §§ 3604(f)(1)(A) and (f)(3)(B).

* * *

The parties have presented, and we have decided, only a threshold question: Edmonds’ zoning code provision describing who may compose a “family” is not a maximum occupancy restriction exempt from the FHA under § 3607(b)(1). It remains for the lower courts to decide whether Edmonds’ actions against Oxford House violate the FHA’s prohibitions against discrimination set out in §§ 3604(f)(1)(A) and (f)(3)(B). For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is

Affirmed.

Justice Thomas,

with whom Justice Scalia and Justice Kennedy join,

dissenting.

Congress has exempted from the requirements of the Fair Housing Act (FHA) “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” 42 U. S. C. § 3607(b)(1) (emphasis added). In today’s decision, the Court concludes that the challenged provisions of petitioner’s zoning code do not qualify for this exemption, even though they establish a specific number — five—as the maximum number of unrelated persons permitted to occupy a dwelling in the single-family neighborhoods of Edmonds, Washington. Because the Court’s conclusion fails to give effect to the plain language of the statute, I respectfully dissent.

I

Petitioner’s zoning code reserves certain neighborhoods primarily for “[s]ingle-family dwelling units.” Edmonds Community Development Code (ECDC) § 16.20.010(A)(1) (1991), App. 225. To live together in such a dwelling, a group must constitute a “family,” which may be either a traditional kind of family, comprising “two or more persons related by genetics, adoption, or marriage,” or a nontraditional one, comprising “a group of five or fewer persons who are not [so] related.” §21.30.010, App. 250. As respondent United States conceded at oral argument, the effect of these provisions is to establish a rule that “no house in [a single-family] area of the city shall have more than five occupants unless it is a [traditional kind of] family.” Tr. of Oral Arg. 46. In other words, petitioner’s zoning code establishes for certain dwellings “a five-occupant limit, [with] an exception for [traditional] families.” Ibid.

To my mind, the rule that “no house . . . shall have more than five occupants” (a “five-occupant limit”) readily qualifies as a “restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling.” In plain fashion, it “restrict^]” — to five — “the maximum number of occupants permitted, to occupy a dwelling.” To be sure, as the majority observes, the restriction imposed by petitioner’s zoning code is not an absolute one, because it does not apply to related persons. See ante, at 736. But § 3607(b)(1) does not set forth a narrow exemption only for “absolute” or “unqualified” restrictions regarding the maximum number of occupants. Instead, it sweeps broadly to exempt any restrictions regarding such maximum number. It is difficult to imagine what broader terms Congress could have used to signify the categories or kinds of relevant governmental restrictions that are exempt from the FHA.

Consider a real estate agent who is assigned responsibility for the city of Edmonds. Desiring to learn all he can about his new territory, the agent inquires: “Does the city have any restrictions regarding the maximum number of occupants permitted to occupy a dwelling?” The accurate answer must surely be in the affirmative — yes, the maximum number of unrelated persons permitted to occupy a dwelling in a single-family neighborhood is five. Or consider a different example. Assume that the Federal Republic of Germany imposes no restrictions on the speed of “cars” that drive on the Autobahn but does cap the speed of “trucks” (which are defined as all other vehicles). If a conscientious visitor to Germany asks whether there are “any restrictions regarding the maximum speed of motor vehicles permitted to drive on the Autobahn,” the accurate answer again is surely the affirmative one — yes, there is a restriction regarding the maximum speed of trucks on the Autobahn.

The majority does not ask whether petitioner’s zoning code imposes any restrictions regarding the maximum number of occupants permitted to occupy a dwelling. Instead, observing that pursuant to ECDC § 21.30.010, “any number of people can live in a house,” so long as they are “related ‘by genetics, adoption, or marriage,’ ” the majority concludes that §21.30.010 does not qualify for § 3607(b)(l)’s exemption because it “surely does not answer the question: ‘What is the maximum number of occupants permitted to occupy a house?’” Ante, at 736. The majority’s question, however, does not accord with the text of the statute. To take advantage of the exemption, a local, state, or federal law need not impose a restriction establishing an absolute maximum number of occupants; under § 3607(b)(1), it is necessary only that such law impose a restriction “regarding” the maximum number of occupants. Surely, a restriction can “regar[d]”— or “concern,” “relate to,” or “bear on” — the maximum number of occupants without establishing an absolute maximum number in all cases.

I would apply § 3607(b)(1) as it is written. Because petitioner’s zoning code imposes a qualified “restriction regarding the maximum number of occupants permitted to occupy a dwelling,” and because the statute exempts from the FHA “any” such restrictions, I would reverse the Ninth Circuit’s holding that the exemption does not apply in this case.

II

The majority’s failure to ask the right question about petitioner’s zoning code results from a more fundamental error in focusing on “maximum occupancy restrictions” and “family composition rules.” See generally ante, at 731-734. These two terms — and the two categories of zoning rules they describe — are simply irrelevant to this case.

A

As an initial matter, I do not agree with the majority’s interpretive premise that “this case [is] an instance in which an exception to ‘a general statement of policy’ is sensibly read ‘narrowly in order to preserve the primary operation of the [policy].’ ” Ante, at 731-732 (quoting Commissioner v. Clark, 489 U. S. 726, 739 (1989)). Why this case? Surely, it is not because the FHA has a “policy”; every statute has that. Nor could the reason be that a narrow reading of 42 U. S. C. § 3607(b)(1) is necessary to preserve the primary operation of the FHA’s stated policy “to provide ... for fair housing throughout the United States.” §3601. Congress, the body responsible for deciding how specifically to achieve the objective of fair housing, obviously believed that § 3607(b)(l)’s exemption for “any . . . restrictions regarding the maximum number of occupants permitted to occupy a dwelling” is consistent with the FHA’s general statement of policy. We do Congress no service — indeed, we negate the “primary operation” of § 3607(b)(1) — by giving that congressional enactment an artificially narrow reading. See Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever farthers the statute’s primary objective must be law”); Board of Governors, FRS v. Dimension Financial Corp., 474 U. S. 361, 374 (1986) (“Invocation of the ‘plain purpose’ of legislation at the expense of the terms of the statute itself ... , in the end, prevents the effectuation of congressional intent”).

In any event, as applied to the present case, the majority’s interpretive premise clashes with our decision in Gregory v. Ashcroft, 501 U. S. 452, 456-470 (1991), in which we held that state judges are not protected by the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §§621-634 (1988 ed. and Supp. V). Though the ADEA generally protects the employees of States and their political subdivisions, see § 630(b)(2), it exempts from protection state and local elected officials and “appointee[s] on the policymaking level,” § 630(f). In concluding that state judges fell within this exemption, we did not construe it “narrowly” in order to preserve the “primary operation” of the ADEA. Instead, we specifically said that we were “not looking for a plain statement that judges are excluded” from the Act’s coverage. Gregory, supra, at 467. Moreover, we said this despite precedent recognizing that the ADEA “‘broadly prohibits’” age discrimination in the workplace. Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 120 (1985) (quoting Lorillard v. Pons, 434 U. S. 575, 577 (1978)). Cf. ante, at 731 (noting “precedent recognizing the FHA’s ‘broad and inclusive’ compass” (quoting Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 209 (1972))).

Behind our refusal in Gregory to give a narrow construction to the ADE A’s exemption for “appointee[s] on the policy-making level” was our holding that the power of Congress to “legislate in areas traditionally regulated by the States” is “an extraordinary power in a federalist system,” and “a power that we must assume Congress does not exercise lightly.” 501 U.S., at 460. Thus, we require that “‘Congress should make its intention “clear and manifest” if it intends to pre-empt the historic powers of the States.’” Id., at 461 (quoting Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989)). It is obvious that land use — the subject of petitioner’s zoning code — is an area traditionally regulated by the States rather than by Congress, and that land-use regulation is one of the historic powers of the States. As we have stated, “zoning laws and their provisions ... are peculiarly within the province of state and local legislative authorities.” Warth v. Seldin, 422 U. S. 490, 508, n. 18 (1975). See also Hess v. Port Authority Trans-Hudson Corporation, 518 U. S. 30, 44 (1994) (“[Regulation of land use [is] a function traditionally performed by local governments”); FERC v. Mississippi, 456 U. S. 742, 768, n. 30 (1982) (“[R]egulation of land use is perhaps the quintessential state activity”); Village of Belle Terre v. Boraas, 416 U. S. 1, 13 (1974) (Marshall, J., dissenting) (“I am in full agreement with the majority that zoning . . . may indeed be the most essential function performed by local government”). Accordingly, even if it might be sensible in other contexts to construe exemptions narrowly, that principle has no application in this case.

B

I turn now to the substance of the majority’s analysis, the focus of which is “maximum occupancy restrictions” and “family composition rules.” The first of these two terms has the sole function of serving as a label for a category of zoning rules simply invented by the majority: rules that “cap the number of occupants per dwelling, typically in relation to available floor space or the number and type of rooms,” that “ordinarily apply uniformly to all residents of all dwelling units,” and that have the “purpose ... to protect health and safety by preventing dwelling overcrowding.” Ante, at 733. The majority’s term does bear a familial resemblance to the statutory term “restrictions regarding the maximum number of occupants permitted to occupy a dwelling,” but it should be readily apparent that the category of zoning rules the majority labels “maximum occupancy restrictions” does not exhaust the category of restrictions exempted from the FHA by § 3607(b)(1). The plain words of the statute do not refer to “available floor space or the number and type of rooms”; they embrace no requirement that the exempted restrictions “apply uniformly to all residents of all dwelling units”; and they give no indication that such restrictions must have the “purpose ... to protect health and safety by preventing dwelling overcrowding.” Ibid.

Of course, the majority does not contend that the language of § 3607(b)(1) precisely describes the category of zoning rules it has labeled “maximum occupancy restrictions.” Rather, the majority makes the far more narrow claim that the statutory language “surely encompasses” that category. Ante, at 734. I readily concede this point. But the obvious conclusion that § 3607(b)(1) encompasses “maximum occupancy restrictions” tells us nothing about whether the statute also encompasses ECDC § 21.30.010, the zoning rule at issue here. In other words, although the majority’s discussion will no doubt provide guidance in future cases, it is completely irrelevant to the question presented in this case.

The majority fares no better in its treatment of “family composition rules,” a term employed by the majority to describe yet another invented category of zoning restrictions. Although today’s decision seems to hinge on the majority’s judgment that ECDC § 21.30.010 is a “classic example] of a ... family composition rule,” ante, at 735, the majority says virtually nothing about this crucial category. Thus, it briefly alludes to the derivation of “family composition rules” and provides a single example of them. Apart from these two references, however, the majority’s analysis consists solely of announcing its conclusion that “the formulation [of § 3607(b)(1)] does not fit family composition rules.” Ibid. This is not reasoning; it is ipse dixit. Indeed, it is not until after this conclusion has been announced that the majority (in the course of summing up) even defines “family composition rules” at all. See ibid, (referring to “rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain”).

Although the majority does not say so explicitly, one might infer from its belated definition of “family composition rules” that § 3607(b)(1) does not encompass zoning rules that have one particular purpose (“to preserve the family character of a neighborhood”) or those that refer to the qualitative as well as the quantitative character of a dwelling (by “fastening on the composition of households rather than on the total number of occupants living quarters can contain”). Ibid. Yet terms like “family character,” “composition of households,” “total [that is, absolute] number of occupants,” and “living quarters” are noticeably absent from the text of the statute. Section 3607(b)(1) limits neither the permissible purposes of a qualifying zoning restriction nor the ways in which such a restriction may accomplish its purposes. Rather, the exemption encompasses “any” zoning restriction — whatever its purpose and by whatever means it accomplishes that purpose — so long as the restriction “regard[s]” the maximum number of occupants. See generally supra, at 739-742. As I have explained, petitioner’s zoning code does precisely that.

In sum, it does not matter that ECDC §21.30.010 describes “[fjamily living, not living space per occupant,” ante, at 737, because it is immaterial under § 3607(b)(1) whether § 21.30.010 constitutes a “family composition rule” but not a “maximum occupancy restriction.” The sole relevant question is whether petitioner’s zoning code imposes “any . . . restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” Because I believe it does, I respectfully dissent.

       The FHA, as originally enacted in 1968, prohibited discrimination based on race, color, religion, or national origin. See 82 Stat. 83. Proscription of discrimination based on sex was added in 1974. See Housing and Community Development Act of 1974, § 808(b), 88 Stat. 729. In 1988, Congress extended coverage to persons with handicaps and also prohibited “familial status” discrimination, i. e., discrimination against parents or other custodial persons domiciled with children under the age of 18. 42 U. S. C. § 3602(k).

       The single-family residential zoning provision at issue in Elliott defines “family,” in relevant part, as “[o]ne (1) or more persons occupying a single dwelling unit, provided that unless all members are related by blood, marriage or adoption, no such family shall contain over four (4) persons.” 960 F. 2d, at 976.

       On May 17,1993, the State of Washington enacted a law providing:
      “No city may enact or maintain an ordinance, development regulation, zoning regulation or official control, policy, or administrative practice which treats a residential structure occupied by persons with handicaps differently than a similar residential structure occupied by a family or other unrelated individuals. As used in this section, ‘handicaps’ are as defined in the federal fair housing amendments act of 1988 (42 U. S. C. Sec. 3602).” Wash. Rev. Code §35.63.220 (1994).
      The United States asserts that Washington’s new law invalidates ECDC §21.30.010, Edmonds’ family composition rule, as applied to Oxford House-Edmonds. Edmonds responds that the effect of the new law is “far from clear.” Reply to Brief in Opposition 4. Even if the new law prevents Edmonds from enforcing its rule against Oxford House, a live controversy remains because the United States seeks damages and civil penalties from Edmonds, under 42 U. S. C. §§ 3614(d)(1)(B) and (C), for conduct occurring prior to enactment of the state law. App. 85.

         Like the District Court and the Ninth Circuit, we do not decide whether Edmonds’ zoning code provision defining “family,” as the City would apply it against Oxford House, violates the FHA’s prohibitions against discrimination set out in 42 U. S. C. §§ 3604(f)(1)(A) and (f)(3)(B).

       The dissent notes Gregory v. Ashcroft, 501 U. S. 452 (1991), as an instance in which the Court did not tightly cabin an exemption contained in a statute proscribing discrimination. See post, at 743-744. Gregory involved an exemption in the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. §§ 621-634, covering state and local elective officials and “appointee[s] on the policymaking level.” § 630(f). The question there was whether state judges fit within the exemption. We held that they did. A state constitutional provision, not a local ordinance, was at stake in Gregory — a provision going “beyond an area traditionally regulated by the States” to implicate “a decision of the most fundamental sort for a sovereign entity.” 501 U. S., at 460. In that light, the Court refused to attribute to Congress, absent plain statement, any intent to govern the tenure of state judges. Nothing in today’s opinion casts a cloud on the soundness of that decision.

       Contrary to the dissent’s suggestion, see post, at 745, n. 5, terminology in the APHA-CDC Standards bears a marked resemblance to the formulation Congress used in § 3607(b)(1). See APHA-CDC Standards §2.51, p. 12 (defining “Permissible Occupancy” as “the maximum number of individuals permitted to reside in a dwelling unit, or rooming unit”).

       Other courts and commentators have similarly differentiated between land-use restrictions and maximum occupancy restrictions. See, e. g., State v. Baker, 81 N. J. 99, 110, 405 A. 2d 368, 373 (1979); 7A E. McQuillin, The Law of Municipal Corporations §24.504 (3d ed. 1989); Abbott, Housing Policy, Housing Codes and Tenant Remedies: An Integration, 56 B. U. L. Rev. 1, 41 (1976).

       The plain import of the statutory language is reinforced by the House Committee Report, which observes:
      “A number of jurisdictions limit the number of occupants per unit based on a minimum number of square feet in the unit or the sleeping areas of the unit. Reasonable limitations by governments would be allowed to continue, as long as they were applied to all occupants, and did not operate to discriminate on the basis of race, color, religion, sex, national origin, handicap or familial status.” H. R. Rep. No. 100-711, p. 31 (1988).

       Tellingly, Congress added the § 3607(b)(1) exemption for maximum occupancy restrictions at the same time it enlarged the FHA to include a ban on discrimination based on “familial status.” See supra, at 728, n. 1. The provision making it illegal to discriminate in housing against families with children under the age of 18 prompted fears that landlords would be forced to allow large families to crowd into small housing units. See, e. g., Fair Housing Amendments Act of 1987: Hearings on H. R. 1158 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 100th Cong., 1st Sess., 656 (1987) (remarks of Rep. Edwards) (questioning whether a landlord must allow a family with 10 children to live in a two-bedroom apartment). Section 3607(b)(1) makes it plain that, pursuant to local prescriptions on maximum occupancy, landlords legitimately may refuse to stuff large families into small quarters. Congress further assured in § 3607(b)(1) that retirement communities would be exempt from the proscription of discrimination against families with minor children. In the sentence immediately following the maximum occupancy provision, § 3607(b)(1) states: “Nor does any provision in this subchapter regarding familial status apply with respect to housing for older persons.”

       An exception to this provision sets out requirements for efficiency units in apartment buildings. See ECDC § 19.10.000 (1991) (adopting Uniform Housing Code § 503(b) (1988)).

       This curious reasoning drives the dissent. If Edmonds allowed only related persons (whatever their number) to dwell in a house in a single-family zone, then the dissent, it appears, would agree that the § 3607(b)(1) exemption is unavailable. But so long as the City introduces a specific number — any number (two will do) — the City can insulate its single-family zone entirely from FHA coverage. The exception-takes-the-rule reading the dissent advances is hardly the “generous construction” warranted for antidiscrimination prescriptions. See Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 212 (1972).

         A broad construction of the word “any” is hardly novel. See, e. g., John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U. S. 86, 96 (1993) (citing, as examples where “Congress spoke without qualification” in ERISA, an exemption for “ ‘any security’ issued to a plan by a registered investment company” and an exemption for “ ‘any assets of... an insurance company or any assets of a plan which are held by . . . an insurance company”’ (quoting 29 U. S. C. §§ 1101(b)(1), 1103(b)(2)) (emphasis in John Hancock))-, Citizens’ Bank v. Parker, 192 U. S. 73, 81 (1904) (“The word any excludes selection or distinction. It declares the exemption without limitation”).

       It is ironic that the majority cites Uniform Housing Code § 503(b) (1988), which has been incorporated into petitioner’s zoning code, see ECDC §19.10.000, App. 248, as a “prototypical maximum occupancy restriction” that would qualify for §3607(b)(l)’s exemption. Ante, at 736. Because § 503(b), as the majority describes it, “caps the number of occupants a dwelling may house, based on floor area,” ibid, (emphasis added), it actually caps the density of occupants, not their number. By itself, therefore, § 503(b) “surely does not answer the question: ‘What is the maximum number of occupants permitted to occupy a house?”’ Ibid. That is, even under § 503(b), there is no single absolute maximum number of occupants that applies to every house in Edmonds. Thus, the answer to the majority’s question is the same with respect to both § 503(b) and ECDC §21.30.010: “It depends.” With respect to the former, it depends on the size of the house’s bedrooms, see ante, at 736 (quoting § 503(b)); with respect to the latter, it depends on whether the house’s occupants are related.

       1 would also remand the case to the Court of Appeals to allow it to pass on respondents’ argument that petitioner’s zoning code does not satisfy § 3607(b)(l)’s requirement that qualifying restrictions be “reasonable.” The District Court rejected this argument, concluding that petitioner’s “five-unrelated-person limit is reasonable as a matter of law,” App. to Pet. for Cert. B-10, but the Court of Appeals did not address the issue.

       The majority notes “precedent recognizing the FHA’s ‘broad and inclusive’ compass, and therefore according a ‘generous construction’ to the Act’s complaint-filing provision.” Ante, at 731 (quoting Traficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 209, 212 (1972)). What we actually said in Traficante was that “[t]he language of the Act is broad and inclusive.” Id., at 209. This is true enough, but we did not “therefore” accord a generous construction either to the FHA’s “antidiscrimination prescriptions,” see ante, at 737, n. 11, or to its complaint-filing provision, § 810(a), 42 U. S. C. § 3610(a) (1970 ed.) (repealed 1988). Instead, without any reference to the language of the Act, we stated that we could “give vitality to § 810(a) only by a generous construction which gives standing to sue to all in the same housing unit who are injured by racial discrimination in the management of those facilities within the coverage of the statute.” 409 U. S., at 212. If we were to apply such logic to this case, we would presumably “give vitality” to § 3607(b)(1) by giving it a generous rather than a narrow construction.

       To my knowledge, no federal or state judicial opinion — other than three § 3607(b)(1) decisions dating from 1992 and 1993 — employs the term “maximum occupancy restrictions.” Likewise, not one of the model codes from which the majority constructs its category of zoning rules uses that term either. See ante, at 733 (citing authorities). Accordingly, it is difficult to conceive how Congress, in 1988, could have “enacted § 3607(b)(1) against the backdrop of an evident distinction between municipal land-use restrictions and maximum occupancy restrictions.” Ante, at 732.
      In this context, the majority seizes on a phrase that appears in a booklet published jointly by the American Public Health Association and the Centers for Disease Control — “ ‘the maximum number of individuals permitted to reside in a dwelling unit, or rooming unit.’” Ante, at 733, n. 6 (quoting APHA-CDC Recommended Minimum Housing Standards § 2.51, p. 12 (1986)). Even if, as the majority boldly asserts, this phrase “bears a marked resemblance to the formulation Congress used in § 3607(b)(1),” ante, at 733, n. 6,1 fail to comprehend how that would add to our understanding of the statute. The majority surely cannot hope to invoke the rule that where “ ‘Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.’” Molzof v. United States, 502 U. S. 301, 307 (1992) (quoting Morissette v. United States, 342 U. S. 246, 263 (1952)). The quoted phrase from the APHACDC publication can hardly be called a “ter[m] of art” — let alone a term in which is “accumulated the legal tradition and meaning of centuries of practice.” See also NLRB v. Amax Coal Co., 453 U. S. 322, 329 (1981) (applying the rule to “terms that have accumulated settled meaning under either equity or the common law”).

       According to the majority, its conclusion that § 3607(b)(1) encompasses all “maximum occupancy restrictions” is “reinforced by” H. R. Rep. No. 100-711, p. 31 (1988). See ante, at 734, n. 8. Since I agree with this narrow conclusion, I need not consider whether the cited Committee Report is either authoritative or persuasive.

       See ante, at 733 (“To limit land use to single-family residences, a municipality must define the term ‘family’; thus family composition rules are an essential component of single-family residential use restrictions”); ante, at 734 (“East Cleveland’s ordinance ‘select[ed] certain categories of relatives who may live together and declare[d] that others may not’; in particular, East Cleveland’s definition of ‘family’ made ‘a crime of a grandmother’s choice to live with her grandson’ ” (quoting Moore v. East Cleveland, 431 U. S. 494, 498-499 (1977) (plurality opinion))).

       All that remains of the majority’s case is the epithet that my reasoning is “curious” because it yields an “exception-takes-the-rule reading” of § 3607(b)(1). Ante, at 737, n. 11. It is not clear why the majority thinks my reading will eviscerate the FHA’s antidiscrimination prescriptions. The FHA protects handicapped persons from traditionally defined (intentional) discrimination, 42 U. S. C. §§ 3604(f)(1), (2), and three kinds of specially defined discrimination: “refusal to permit. . . reasonable modifications of existing premises”; “refusal to make reasonable accommodations in rules, policies, practices, or services”; and “failure to design and construct [multifamily] dwellings” such that they are accessible and usable, §§ 3604(f)(3)(A), (B), (C). Yet only one of these four kinds of discrimination — the “reasonable accommodations” prescription of § 3604(f)(3)(B) — is even arguably implicated by zoning rules like ECDC § 21.30.010. In addition, because the exemption refers to “local, State, or Federal restrictions,” even the broadest reading of § 3607(b)(1) could not possibly insulate private refusals to make reasonable accommodations for handicapped persons. Finally, as I have already noted, see supra, at 741, n. 3, restrictions must be “reasonable” in order to be exempted by § 3607(b)(1).


author: Justice Breyer Justice Scalia, Justice Kennedy,

text:
    REYNOLDSVILLE CASKET CO. et al. v. HYDE
    No. 94-3.
    Argued February 27, 1995
    Decided May 15, 1995

      Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 759. Kennedy, J., filed an opinion concurring in the judgment, in which O’Connor, J., joined, post, p. 761.

      William E. Riedel argued the cause and filed briefs for petitioners.

      Timothy B. Dyk argued the cause for respondent. With him on the brief was David J. Eardley

        Irene C. Keyse-Walker filed a brief for the Daikon Shield Claimants Trust as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of Ohio by Lee Fisher, Attorney General, Richard A Cordray, State Solicitor, and Simon B. Karas; and for Brown & Szaller Co., L. P. A., et al. by James F. Szaller, Robert A Marcis, Larry S. Stewart, and Jeffrey R. White.

   Justice Breyer

delivered the opinion of the Court.

In Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888 (1988), this Court held unconstitutional (as impermissibly burdening interstate commerce) an Ohio “tolling” provision that, in effect, gave Ohio tort plaintiffs unlimited time to sue out-of-state (but not in-state) defendants. Subsequently, in the case before us, the Supreme Court of Ohio held that, despite Bendix, Ohio’s tolling law continues to apply to tort claims that accrued before that decision. This holding, in our view, violates the Constitution’s Supremacy Clause. We therefore reverse the Ohio Supreme Court’s judgment.

The accident that led to this case, a collision between a car and a truck, occurred in Ashtabula County, Ohio, on March 5, 1984. More than three years later, on August 11, 1987, Carol Hyde (respondent here) sued the truck’s driver, John Blosh, and its owner, Reynoldsville Casket Company (petitioners). All parties concede that, had Blosh and Reynolds-ville made their home in Ohio, Ohio law would have given Hyde only two years to bring her lawsuit. See Ohio Rev. Code Ann. §2305.10 (1991). But, because petitioners were from Pennsylvania, a special provision of Ohio law tolled the running of the statute of limitations, making the lawsuit timely. See §2305.15(A) (tolling the statute of limitations while a person against whom “a cause of action accrues” is “out of” or “departs from” the State).

Ten months after Hyde brought her suit, this Court, in Bendix, supra, held that the tolling provision on which she relied, § 2305.15(A), places an unconstitutional burden upon interstate commerce. Soon thereafter, the Ashtabula County Court of Common Pleas, finding this case indistinguishable from Bendix, held that the tolling provision could not constitutionally be applied to the case, and dismissed the lawsuit as untimely. The intermediate appellate state court affirmed the dismissal. However, the Ohio Supreme Court reinstated the suit. Its syllabus, which under Ohio law sets forth the authoritative basis for its decision, see Ohio Supreme Court Rules for the Reporting of Opinions Rule 1(B) (1994-1995); Akers v. Serv-A-Portion, Inc., 31 Ohio St. 3d 78, 79, n. 1, 508 N. E. 2d 964, 965, n. 1 (1987), simply says, “Bendix Autolite Corp. v. Midwesco Enterprises, Inc. . . . may not be retroactively applied to bar claims in state courts which had accrued prior to the announcement of that decision. (Section 16, Article I, Ohio Constitution, applied.)” 68 Ohio St. 3d 240, 240-241, 626 N. E. 2d 75 (1994). We granted certiorari to decide whether the Federal Constitution permits Ohio to continue to apply its tolling statute to pre-Bendix torts. And, as we have said, we conclude that it does not.

Hyde acknowledges that this Court, in Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993), held that, when (1) the Court decides a case and applies the (new) legal rule of that case to the parties before it, then (2) it and other courts must treat that same (new) legal rule as “retroactive,” applying it, for example, to all pending cases, whether or not those cases involve predecision events. She thereby concedes that, the Ohio Supreme Court’s syllabus to the contrary notwithstanding, Bendix applies to her case. And, she says, as “a result of Harper, there is no question that Bendix retroactively invalidated” the tolling provision that makes her suit timely. Brief for Respondent 8.

Although one might think that is the end of the matter, Hyde ingeniously argues that it is not. She asks us to look at what the Ohio Supreme Court has done, not through the lens of “retroactivity,” but through that of “remedy.” States, she says, have a degree of legal leeway in fashioning remedies for constitutional ills. She points to Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), in which this Court applied prospectively only its ruling that a 1-year statute of limitations governed certain tort cases — primarily because that ruling had “effectively overruled a long line of decisions” applying a more generous limitations principle (that of laches), upon which plaintiffs had reasonably relied. Id., at 107. She concedes that Harper overruled Chevron Oil insofar as the case (selectively) permitted the prospective-only application of a new rule of law. But, she notes the possibility of recharacterizing Chevron Oil as a case in which the Court simply took reliance interests into account in tailoring an appropriate remedy for a violation of federal law. See Harper, supra, at 133-134 (O’Connor, J., dissenting); American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 218-225 (1990) (Stevens, J., dissenting). And she quotes Justice Harlan, who, before Chevron Oil, pointed out that “equitable considerations” such as “ ‘reliance’ ” might prove relevant to “relief.” United States v. Estate of Donnelly, 397 U. S. 286, 296-297 (1970) (concurring opinion).

Thus, Hyde asks, why not look at what the Ohio Supreme Court has done in this case as if it were simply an effort to fashion a remedy that takes into consideration her reliance on pr e-Bendix law? Here, the remedy would actually consist of providing no remedy for the constitutional violation or, to put the matter more precisely, of continuing to toll the 2-year statute of limitations in pr e-Bendix cases, such as hers, as a state law “equitable” device for reasons of reliance and fairness. She claims that use of this device violates no federal constitutional provision (such as the Due Process Clause) and is therefore permissible.

One serious problem with Hyde’s argument lies in the Ohio Supreme Court’s legal description of why, in fact, it refused to dismiss Hyde’s case. As we have pointed out, the Ohio Supreme Court’s syllabus (the legally authoritative statement of its holding) speaks, not about remedy, but about retroactivity. Regardless, we do not see how, in the circumstances before us, the Ohio Supreme Court could change a legal outcome that federal law, applicable under the Supremacy Clause, would otherwise dictate simply by calling its refusal to apply that federal law an effort to create a remedy. The Ohio Supreme Court’s justification for refusing to dismiss Hyde’s suit is that she, and others like her, may have reasonably relied upon pr e-Bendix law — a reliance of the same kind and degree as that involved in Chevron Oil. But, this type of justification — often present when prior law is overruled — is the very sort that this Court, in Harper, found insufficient to deny retroactive application of a new legal rule (that had been applied in the case that first announced it). If Harper has anything more than symbolic significance, how could virtually identical reliance, without more, prove sufficient to permit a virtually identical denial simply because it is characterized as a denial based on “remedy” rather than “nonretroactivity”?

Hyde tries to answer this question by pointing to other cases in which, she claims, this Court has allowed state courts effectively to avoid retroactive application of federal law by denying a particular remedy for violation of that law or by refusing to provide any remedy at all. She argues that these cases are similar enough to her own to permit a “remedial” exception to the retroactive application of Bendix. We have examined the cases to which Hyde looks for support, and conclude that they all involve very different circumstances.

First, Hyde points to a statement in the opinion announcing the Court’s judgment in James B. Beam Distilling Co. v. Georgia, 501 U. S. 529 (1991), that once “a rule is found to apply ‘backward,’ there may then be a further issue of remedies, i. e., whether the party prevailing under a new rule should obtain the same relief that would have been awarded if the rule had been an old one.” Id., at 535 (opinion of Souter, J.); ibid. (“Subject to possible constitutional thresholds, . . . the remedial inquiry is one governed by state law, at least where the case originates in state court”); American Trucking Assns., Inc. v. Smith, 496 U. S., at 178 (opinion of O’Connor, J.) (speaking of the need to “distinguish the question of retroactivity... from the distinct remedial question”); id., at 210 (Stevens, J., dissenting) (distinguishing “between retroactivity as a choice-of-law rule and retroactivity as a remedial principle”). This language, however, read both literally and in context, makes clear that the ordinary application of a new rule of law “backwards,” say, to pending cases, may or may not, involve a further matter of remedies. Whether it does so, and, if so, what kind of remedy the state court may fashion, depend — like almost all legal issues— upon the kind of case, matter, and circumstances involved. Not all cases concerning retroactivity and remedies are of the same sort.

Second, Hyde points to tax cases in which the Court applied retroactively new rules holding certain state tax laws unconstitutional, but nonetheless permitted the state courts a degree of leeway in designing a remedy, including a remedy that would deny state taxpayers, with pending refund cases, the refund that they sought. See Harper v. Virginia Dept. of Taxation, 509 U. S. 86 (1993); Beam, supra. If state courts may at the same time apply new law (invalidating tax statutes) and withhold relief (tax refunds) from tax plaintiffs, asks Hyde, why can they not at the same time apply new law (invalidating tolling statutes) and withhold relief (dismissal) from tort defendants?

The answer to this question lies in the special circumstances of the tax cases. The Court has suggested that some of them involve a particular kind of constitutional violation — a kind that the State could cure without repaying back taxes. See McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18,40-41 (1990). Where the violation depends, in critical part, upon differential treatment of two similar classes of individuals, then one might cure the problem either by similarly burdening, or by similarly unburdening, both groups. Where the violation stemmed from, say, taxing the retirement funds of one group (retired Federal Government employees) but not those of another (retired state government employees), see Davis v. Michigan Dept. of Treasury, 489 U. S. 803 (1989), then the State might cure the problem either (1) by taxing both (imposing, say, back taxes on the previously advantaged group, to the extent constitutionally permissible), or (2) by taxing neither (and refunding back taxes). Cf. McKesson Corp., supra, at 40-41, and n. 23. And, if the State chooses the first, then the taxpayers need receive no refund. But, that result flows not from some general “remedial” exception to “retroactivity” law, but simply from the fact that the state law that the taxpayer had attacked now satisfies the Constitution.

One can imagine a roughly comparable situation in the statute of limitations context. Suppose that Ohio violated the Constitution by treating two similar classes of tort defendants differently, say, by applying a 2-year statute of limitations to the first (in-state defendants) but a 4-year statute to the second (out-of-state defendants). Ohio might have cured this (imaginary) constitutional problem either (1) by applying a 4-year statute to both groups, or (2) by applying a 2-year statute to both groups. Had it chosen the first of these remedies, then Hyde’s case could continue because the 4-year statute would no longer violate the Federal Constitution. This imaginary case, however, is not the case at hand, for the Ohio Supreme Court’s “remedy” here (allowing Hyde to proceed) does not cure the tolling statute’s problem of unconstitutionality. And, her tort claim critically depends upon Ohio tolling law that continues to violate the Commerce Clause.

Other tax examples present different, remedial problems. Suppose a State collects taxes under a taxing statute that this Court later holds unconstitutional. Taxpayers then sue for a refund of the unconstitutionally collected taxes. Retroactive application of the Court’s holding would seem to entitle the taxpayers to a refund of taxes. But what if a preexisting, separate, independent rule of state law, having nothing to do with retroactivity — a rule containing certain procedural requirements for any refund suit — nonetheless barred the taxpayers’ refund suit? See McKesson Corp., supra, at 45; Reich v. Collins, 513 U. S. 106, 111 (1994). Depending upon whether or not this independent rule satisfied other provisions of the Constitution, it could independently bar the taxpayers’ refund claim. See McKesson Corp., supra, at 45.

This tax scenario simply reflects the legal commonplace that, when two different rules of law each independently bar recovery, then a decision, the retroactive application of which invalidates one rule, will make no difference to the result. The other, constitutionally adequate rule remains in place. Hyde cannot bring her case within the protection of this principle, for the Ohio Supreme Court did not rest its holding upon a pre-existing, separate rule of state law (having nothing to do with retroactivity) that independently permitted her to proceed. Rather, the maintenance of her action critically depends upon the continued application of the Ohio statute’s “tolling” principle — a principle that this Court has held unconstitutional.

Third, Hyde points to the law of qualified immunity, which, she says, imposes a “remedial” limitation upon the “retroactive” application of a new rule to pending cases. To understand her argument, consider the following scenario: (1) Smith sues a police officer claiming injury because of an unconstitutional arrest; (2) the police officer asserts that the arrest was constitutional; (3) this Court then holds, in a different case, that an identical arrest is not constitutional; (4) the holding of this different case applies retroactively to Smith’s case; but (5) the police officer still wins on grounds of qualified immunity because the new rule of law was not “clearly established” at the time of the arrest. See generally Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). In one sense, Smith lost for a reason similar to the tax plaintiffs mentioned above, namely, that a previously existing, separate, constitutional legal ground (that of the law not being “clearly established”) bars her claim. We acknowledge, however, that this separate legal ground does reflect certain remedial considerations. In particular, it permits government officials to rely upon old law. But, it does so lest threat of liability “ ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’” Id., at 814 (quoting Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949)). And, it reflects the concern that “society as a whole,” without that immunity, would have to bear “the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” 457 U. S., at 814. These very facts — that a set of special federal policy considerations have led to the creation of a well-established, independent rule of law — distinguish the qualified immunity cases from the case before us, where a concern about reliance alone has led the Ohio court to create what amounts to an ad hoc exemption from retroactivity.

Finally, Hyde points to the line of cases starting with Teague v. Lane, 489 U. S. 288 (1989), in which, she says, this Court has held that a habeas corpus petitioner cannot obtain a habeas corpus remedy where doing so would require the habeas court to apply retroactively a new rule of criminal law. The Teague doctrine, however, does not involve a special “remedial” limitation on the principle of “retroactivity” as much as it reflects a limitation inherent in the principle itself. New legal principles, even when applied retroactively, do not apply to cases already closed. Cf. United States v. Estate of Donnelly, 397 U. S., at 296 (Harlan, J., concurring) (at some point, “the rights of the parties should be considered frozen” and a “conviction . . . final”). And, much as the qualified immunity doctrine embodies special federal policy concerns related to the imposition of damages liability upon persons holding public office, the Teague doctrine embodies certain special concerns — related to collateral review of state criminal convictions — that affect which cases are closed, for which retroactivity-related purposes, and under what circumstances. No such special finality-related concerns are present here.

The upshot is that Hyde shows, through her examples, the unsurprising fact that, as courts apply “retroactively” a new rule of law to pending cases, they will find instances where that new rule, for well-established legal reasons, does not determine the outcome of the case. Thus, a court may find (1) an alternative way of curing the constitutional violation, or (2) a previously existing, independent legal basis (having nothing to do with retroactivity) for denying relief, or (3) as in the law of qualified immunity, a well-established general legal rule that trumps the new rule of law, which general rule reflects both reliance interests and other significant policy justifications, or (4) a principle of law, such as that of “finality” present in the Teague context, that limits the principle of retroactivity itself. But, this case involves no such mstance; nor does it involve any other special circumstance that might somehow justify the result Hyde seeks. Rather, Hyde offers no more than simple reliance (of the sort at issue in Chevron Oil) as a basis for creating an exception to Harper’s rule of retroactivity — in other words, she claims that, for no special reason, Harper does not apply. We are back where we started. Hyde’s necessary concession, that Harper governs this case, means that she cannot prevail.

The judgment of the Supreme Court of Ohio is

Reversed.

Justice Scalia,

with whom Justice Thomas joins,

concurring.

I join the opinion of the Court, which assumes that the Ohio Supreme Court denied petitioner a “remedy” for the unconstitutionality of the tolling statute, and refutes the notion that “remedial discretion” would allow that unconstitutionality to be given no effect. That was the theory on which this case was presented and argued, and it is properly decided on the same basis.

I write separately, however, to record my doubt that the case in fact presents any issue of remedies or of remedial discretion at all. A court does not — in the nature of things it can not — give a “remedy” for an unconstitutional statute, since an unconstitutional statute is not in itself a cognizable “wrong.” (If it were, every citizen would have standing to challenge every law.) In fact, what a court does with regard to an unconstitutional law is simply to ignore it. It decides the case “disregarding the [unconstitutional] law,” Mar-bury v. Madison, 1 Cranch 137, 178 (1803) (emphasis added), because a law repugnant to the Constitution “is void, and is as no law,” Ex parte Siebold, 100 U. S. 371, 376 (1880). Thus, if a plaintiff seeks the return of money taken by the government in reliance on an unconstitutional tax law, the court ignores the tax law, finds the taking of the property therefore wrongful, and provides a remedy. Or if a plaintiff seeks to enjoin acts, harmful to him, about to be taken by a government officer under an unconstitutional regulatory statute, “the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding.” Massachusetts v. Mellon, 262 U. S. 447, 488-489 (1923) (emphasis added). In such cases, it makes sense to speak of “remedial discretion.”

In the present case, however, ignoring the unconstitutional statute (which the Ohio courts were bound to do) did not result in the conclusion that some remedy must be provided (over which the courts might have some discretion). Rather, it resulted in the conclusion that the remedy which the plaintiff sought could not be provided. Respondent’s suit was concededly untimely under the applicable state statute of limitations, Ohio Rev. Code Ann. § 2305.10 (1991). See ante, at 751. When petitioners moved to dismiss the suit, respondent replied that the suit was timely by virtue of the tolling provision, § 2305.15(A). The tolling provision, however, was unconstitutional, see Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888 (1988), and since it was unconstitutional it “was ... as inoperative as if it had never been passed,” Chicago, I. & L. R. Co. v. Hackett, 228 U. S. 559, 566 (1913).

In contemplation of the law, then, all that the trial court had before it was a concededly untimely suit, and (absent some valid Ohio law other than the tolling statute) it had no alternative but to dismiss. The Court’s opinion gives reasons why the Ohio law applied by the Ohio Supreme Court in this case is in its substance invalid. I add that even the rubric under which that law was announced is invalid: It has nothing to do with remedial discretion.

Justice Kennedy,

with whom Justice O’Connor joins,

concurring in the judgment.

We do not read today’s opinion to surrender in advance our authority to decide that in some exceptional cases, courts may shape relief in light of disruption of important reliance interests or the unfairness caused by unexpected judicial decisions. We cannot foresee the myriad circumstances in which the question might arise. In two classes of cases, courts already take account of these considerations: cases involving qualified immunity, which protects public officials’ reliance on clearly established law, see Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982); and cases applying the Teague bar which, among other objectives, protects States that rely on the law existing at the time a conviction becomes final, see Teague v. Lane, 489 U. S. 288, 310 (1989). Cf. ante, at 758. As the Court seems to acknowledge, however, there may be other areas where the importance of the reliance interests that are disturbed precludes a remedy despite the retroactive application of the new rule. Ante, at 758-759. In my view, reliance on statutes of limitations falls into that category in certain circumstances, see Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 371-374 (1991) (O’Connor, J., dissenting); id., at 379 (Kennedy, J., dissenting); American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 221-222 (1990) (Stevens, J., dissenting); Saint Francis College v. Al-Khazraji, 481 U. S. 604 (1987); Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), consistent with a long tradition of judicial authority to formulate rules ensuring fair and predictable enforcement of statutes of limitations, for instance, through rules pertaining to tolling or waiver. See American Trucking Assns., Inc., supra, at 221 (Stevens, J., dissenting) (citing Braun v. Sauerwein, 10 Wall. 218, 223 (1870)). When a hard case presents the question of our authority to deny relief in a retroactivity case, that will be soon enough to resolve it; for the law in this area is, and ought to be, shaped by the urgent necessities we confront when there is a strong case to be made for limiting relief despite the retroactive application of the law.

This is not a case where we need to address the issue whether a party is entitled to a full remedy in a retroactivity case, because that question arises only when the right is predicated upon a new rule of law, see United States v. Johnson, 457 U. S. 537, 549 (1982), and Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888 (1988), did not announce a new rule. In the civil context, a case announces a new rule of law “either by overruling clear past precedent on which litigants may have relied, ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Chevron Oil, supra, at 106; cf. Teague v. Lane, supra, at 301 (new rule in criminal context is one not “dictated by precedent existing at the time the defendant’s conviction became final”). Respondent could not and does not attempt to argue that the Bendix decision overruled clear past precedent. Rather, she asserts its holding was not clearly foreshadowed. As the Court was explicit to acknowledge in Bendix, however, it was “[a]pplying well-settled constitutional principles,” Bendix, supra, at 889, not a new legal theory or one that had not been foreshadowed by other precedents.

In Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 578-579 (1986), the Court identified two modes of analysis to evaluate state statutes under the Commerce Clause. The Court will consider the statute invalid without further inquiry when it “directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests,” id., at 579; and it will balance the State’s interest against the burden on interstate commerce when the statute “has only indirect effects on interstate commerce and regulates evenhandedly,” ibid, (citing Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970)). Respondent concedes that the Pike balancing test is well established but claims its application to the Ohio tolling provision in Bendix was not predictable.

Her argument fails on two fronts. First, in Bendix the Court observed the Ohio tolling provision was so blatant an affront to interstate commerce that it might be considered invalid without engaging in the balancing test. See 486 U. S., at 891; see also id., at 898 (Scalia, J., concurring). Second, the balancing test provides a clear and certain standard in cases such as Bendix, see id., at 894-895; and even if it did not, the “application of precedent which directly controls is not the stuff of which new law is made,” Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 112 (1993) (Kennedy, J., concurring in part and concurring in judgment); see Wright v. West, 505 U. S. 277, 309 (1992) (Kennedy, J., concurring in judgment) (“Where the beginning point is a rule of . . . general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent”); see also Keene Corp. v. United States, 508 U. S. 200, 215 (1993) (case does not announce new rule where claims are resolved “under well-settled law”); Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 496 (1968) (case does not announce new rule unless it indicates “that the issue involved was novel, that innovative principles were necessary to resolve it, or that the issue had been settled in prior cases in a manner contrary to the view held by [the Court]”).

As “a mere application of... existing precedent,” Harper, supra, at 112 (Kennedy, J., concurring in part and concurring in judgment), Bendix did not “decide ... ‘an issue of first impression,' ” Ashland Oil, Inc. v. Caryl, 497 U. S. 916, 920 (1990) (per curiam) (quoting Chevron Oil, supra, at 106), come “out of the blue,” James B. Beam Distilling Co. v. Georgia, 501 U. S. 529, 556 (1991) (O’Connor, J., dissenting), or represent “an avulsive change which caused the current of the law thereafter to flow between new banks,” Hanover Shoe, supra, at 499.

Bendix did not announce a new rule of law, so I would reverse on this ground, postponing extended discussion of reliance interests as they bear upon remedies for a ease which requires us to address that issue.