source: Caselaw Access Project

author: Justice Souter Justice Thomas,

license: Public Domain

text:
    ROELL et al. v. WITHROW
    No. 02-69.
    Argued February 26, 2003
    Decided April 29, 2003

      Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Stevens, Scalia, and Kennedy, JJ., joined, post, p. 591.

      Lisa R, Eskow, Deputy Solicitor General of Texas, argued the cause for petitioners. With her on the briefs were Greg Abbott, Attorney General, Philip A. Lionberger, former Solicitor General, R. Ted Cruz, Solicitor General, Melanie P. Sarwal, Assistant Solicitor General, and Charles K. Eldred, Assistant Attorney General.

      Amanda Frost argued the cause for respondent. With her on the brief was Brian Wolfman.

   Justice Souter

delivered the opinion of the Court.

The Federal Magistrate Act of 1979 (Federal Magistrate Act or Act) expanded the power of magistrate judges by authorizing them to conduct “any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case,” as long as they are “specially designated ... by the district court” and are acting “[u]pon the consent of the parties.” 28 U. S. C. § 636(c)(1). The question is whether consent can be inferred from a party’s conduct during litigation, and we hold that it can be.

I

Respondent Jon Michael Withrow is a Texas state prisoner who brought an action under Rev. Stat. § 1979, 42 U. S. C. §1983, against members of the prison’s medical staff, petitioners Joseph Roell, Petra Garibay, and James Reagan, alleging that they had deliberately disregarded his medical needs in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U. S. 97 (1976). During a preliminary hearing before a Magistrate Judge to determine whether the suit could proceed in forma pauperis, see 28 U. S. C. § 1915, the Magistrate Judge told Withrow that he could choose to have her rather than the District Judge preside over the entire case. App. 10-11. Withrow agreed orally, id., at 11, and later in writing, App. to Pet. for Cert. 20a. A lawyer from the Texas attorney general’s office who attended the hearing, but was not permanently assigned to Withrow’s case, indicated that she would have to “talk to the attorneys who have been assigned the case to see if [the petitioners] will execute consent forms.” App. 11.

Without waiting for the petitioners’ decision, the District Judge referred the case to the Magistrate Judge for final disposition, but with the caveat that “all defendants [would] be given an opportunity to consent to the jurisdiction of the magistrate judge,” and that the referral order would be vacated if any of the defendants did not consent. App. to Pet. for Cert. 21a. The Clerk of Court sent the referral order to the petitioners along with a summons directing them to include “[i]n their answer or in a separate pleading... a statement that ‘All defendants consent to the jurisdiction of a United States Magistrate Judge’ or ‘All defendants do not consent to the jurisdiction of a United States Magistrate Judge.’ ” App. 13. The summons advised them that “[t]he court shall not be told which parties do not consent.” Ibid. Only Reagan, who was represented by private counsel, gave written consent to the referral; Roell and Garibay, who were represented by an assistant in the attorney general’s office, filed answers but said nothing about the referral. App. to Pet. for Cert. 17a.

The case nevertheless proceeded in front of the Magistrate Judge, all the way to a jury verdict and judgment for the petitioners. When Withrow appealed, the Court of Appeals sua sponte remanded the ease to the District Court to “determine whether the parties consented to proceed before the magistrate judge and, if so, whether the consents were oral or written.” Id., at 13a. It was only then that Roell and Garibay filed a formal letter of consent with the District Court, stating that “they consented to all proceedings before this date before the United States Magistrate Judge, including disposition of their motion for summary judgment and trial.” Id., at 22a.

The District Court nonetheless referred the Court of Appeals’s enquiry to the same Magistrate Judge who had conducted the trial, who reported that “by their actions [Roell and Garibay] clearly implied their consent to the jurisdiction of a magistrate.” Id., at 19a. She was surely correct, for the record shows that Roell and Garibay voluntarily participated in the entire course of proceedings before the Magistrate Judge, and voiced no objection when, at several points, the Magistrate Judge made it clear that she believed they had consented. The Magistrate Judge observed, however, that under the Circuit’s precedent “consent cannot be implied by the conduct of the parties,” id., at 18a, and she accordingly concluded that the failure of Roell and Garibay to give express consent before sending their postjudgment letter to the District Court meant that she had lacked jurisdiction to hear the case, ibid. The District Court adopted the report and recommendation over the petitioners’ objection. Id., at 14a-15a.

The Court of Appeals affirmed the District Court, agreeing that “[w]hen, pursuant to § 636(c)(1), the magistrate judge enters [a] final judgment, lack of consent and defects in the order of reference are jurisdictional errors” that cannot be waived. 288 F. 3d 199, 201 (CA5 2002). It also reaffirmed its prior holding that “§ 636(c) consent must be express; it cannot be implied by the parties’ conduct.” Ibid. Finally, the appellate court decided that petitioners’ postjudgment consent did not satisfy §636(c)(l)’s consent requirement. Id., at 203. We granted certiorari, 537 U. S. 999 (2002), and now reverse.

II

The Federal Magistrate Act provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court.” 28 U. S. C. § 636(c)(1). Unlike non-consensual referrals of pretrial but case-dispositive matters under § 636(b)(1), which leave the district court free to do as it sees fit with the magistrate judge’s recommendations, a § 636(c)(1) referral gives the magistrate judge full authority over dispositive motions, conduct of trial, and entry of final judgment, all without district court review. A judgment entered by “a magistrate judge designated to exercise civil jurisdiction under [§ 636(c)(1)]” is to be treated as a final judgment of the district court, appealable “in the same manner as an appeal from any other judgment of a district court.” § 636(c)(3).

Section 636(c)(2) establishes the procedures for a § 636(c)(1) referral. “If a magistrate judge is designated to exercise civil jurisdiction under [§ 636(c)(1)], the clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction.” § 636(c)(2). Within the time required by local rule, “[t]he decision of the parties shall be communicated to the clerk of court.” Ibid. Federal Rule of Civil Procedure 73(b) specifies that the parties’ election of a magistrate judge shall be memorialized in “a joint form of consent or separate forms of consent setting forth such election,” see Fed. Rules Civ. Proc. Form 34, and that neither the magistrate nor the district judge “shall ... be informed of a party’s response to the clerk’s notification, unless all parties have consented to the referral of the matter to a magistrate judge.” The procedure created by 28 U. S. C. § 636(c)(2) and Rule 73(b) thus envisions advance, written consent communicated to the clerk, the point being to preserve the confidentiality of a party’s choice, in the interest of protecting an objecting party against any possible prejudice at the magistrate judge’s hands later on. See also § 636(c)(2) (“Rules of court for the reference of civil matters to magistrate judges shall include procedures to protect the voluntariness of the parties’ consent”).

Here, of course, § 636(c)(2) was honored in the breach, by a referral before Roell and Garibay gave their express consent, without any statement from them, written or oral, until after judgment. App. to Pet. for Cert. 19a. Nonetheless, Roell and Garibay “clearly implied their consent” by their decision to appear before the Magistrate Judge, without expressing any reservation, after being notified of their right to refuse and after being told that she intended to exercise case-dispositive authority. Ibid. The only question is whether consent so shown can count as conferring “civil jurisdiction” under § 636(c)(1), or whether adherence to the letter of § 636(c)(2) is an absolute demand.

So far as it concerns full-time magistrate judges, the font of a magistrate judge’s authority, § 636(c)(1), speaks only of “the consent of the parties,” without qualification as to form, and § 636(c)(3) similarly provides that “[t]he consent of the parties allows” a full-time magistrate judge to enter a final, appealable judgment of the district court. These unadorned references to “consent of the parties” contrast with the language in § 636(c)(1) covering referral to certain part-time magistrate judges, which requires not only that the parties consent, but that they do so by “specific written request.” Cf. also 18 U. S. C. § 3401(b) (allowing magistrate judges to preside over misdemeanor trials only if the defendant “expressly consents ... in writing or orally on the record”). A distinction is thus being made between consent simple, and consent expressed in a “specific written request.” And although the specific referral procedures in 28 U. S. C. § 636(c)(2) and Federal Rule of Civil Procedure 73(b) are by no means just advisory, the text and structure of the section as a whole suggest that a defect in the referral to a full-time magistrate judge under § 636(c)(2) does not eliminate that magistrate judge’s “civil jurisdiction” under § 636(c)(1) so long as the parties have in fact voluntarily consented. See King v. Ionization Int’l, Inc., 825 F. 2d 1180, 1185 (CA7 1987) (noting that the Act “does not require a specific form . . . of consent”).

These textual clues are complemented by a good pragmatic reason to think that Congress intended to permit implied consent. In giving magistrate judges case-dispositive civil authority, Congress hoped to relieve the district courts’ “mounting queue of civil cases” and thereby “improve access to the courts for all groups.” S. Rep. No. 96-74, p. 4 (1979); see H. R. Rep. No. 96-287, p. 2 (1979) (The Act’s main object was to create “a supplementary judicial power designed to meet the ebb and flow of the demands made on the Federal judiciary”). At the same time, though, Congress meant to preserve a litigant’s right to insist on trial before an Article III district judge insulated from interference with his obligation to ignore everything but the merits of a case. See Commodity Futures Trading Common v. Schor, 478 U. S. 833, 848 (1986) (Article III protects litigants’ “ ‘right to have claims decided before judges who are free from potential domination by other branches of government’” (quoting United States v. Will, 449 U. S. 200, 218 (1980))). It was thus concern about the possibility of coercive referrals that prompted Congress to make it clear that “the voluntary consent of the parties is required before a civil action may be referred to a magistrate for a final decision.” S. Conf. Rep. No. 96-322, p. 7 (1979); see also S. Rep. No. 96-74, at 5 (“The bill clearly requires the voluntary consent of the parties as a prerequisite to a magistrate’s exercise of the new jurisdiction. The committee firmly believes that no pressure, tacit or expressed, should be applied to the litigants to induce them to consent to trial before the magistrates”); H. R. Rep. No. 96-287, at 2 (The Act “creates a vehicle by which litigants can consent, freely and voluntarily, to a less formal, more rapid, and less expensive means of resolving their civil controversies”).

When, as here, a party has signaled consent to the magistrate judge’s authority through actions rather than words, the question is what outcome does better by the mix of congressional objectives. On the one hand, the virtue of strict insistence on the express consent requirement embodied in § 636(c)(2) is simply the value of any bright line: here, absolutely minimal risk of compromising the right to an Article III judge. But there is another risk, and insisting on a bright line would raise it: the risk of a full and complicated trial wasted at the option of an undeserving and possibly opportunistic litigant. This risk is right in front of us in this case. Withrow consented orally and in writing to the Magistrate Judge’s authority following notice of his right to elect trial by an Article III district judge; he received the protection intended by the statute, and deserves no boon from the other side’s failure to cross the bright line. In fact, there is even more to Withrow’s unworthiness, since under the local rules of the District Court, it was Withrow’s unmet responsibility as plaintiff to get the consent of all parties and file the completed consent form with the clerk. See Gen. Order No. 80-5, Art. III(B)(2) (SD Tex., June 16, 1980), p. 5, App. to Brief in Opposition 7a. In another case, of course, the shoe might be on the other foot; insisting on the bright line would allow parties in Roell’s and Garibay’s position to sit back without a word about their failure to file the form, with a right to vacate any judgment that turned out not to their liking.

The bright line is not worth the downside. We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before denying the magistrate judge’s authority. Judicial efficiency is served; the Article III right is substantially honored. See Schor, supra, at 849-850 (finding that the litigant “effectively] waive[d]” his right to an Article III court by deciding “to seek relief before the [Commodity Futures Trading Commission] rather than in the federal courts”); United States v. Raddatz, 447 U. S. 667, 676, n. 3 (1980) (eschewing a construction of the Act that would tend to “frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts”).

HH HH h-H

Roell’s and Garibay’s general appearances before the Magistrate Judge, after they had been told of their right to be tried by a district judge, supply the consent necessary for the Magistrate Judge’s “civil jurisdiction” under § 636(c)(1). We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.

It is so ordered.

Justice Thomas,

with whom Justice Stevens, Justice Scalia, and Justice Kennedy join, dissenting.

The provision that this Court must interpret reads: “Upon the consent of the parties, a . . . magistrate judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment.” 28 U. S. C. § 686(c)(1). The majority holds that no express consent need be given prior to the commencement of proceedings before the magistrate judge. Rather, consent can be implied “where ... the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.” Ante, at 590. In my view, this interpretation of § 636(c)(1) is contrary to its text, fails to respect the statutory scheme, and raises serious constitutional concerns. Furthermore, I believe that a lack of proper consent is a jurisdictional defect and, therefore, a court of appeals reviewing a judgment entered by a magistrate judge pursuant to § 636(c) may inquire sua sponte into the consent’s validity.

I

A

There are two prongs to the majority’s holding: (1) parties can give their consent during the actual proceedings conducted by a magistrate judge, and (2) such consent need not be explicit, but rather may be inferred from the parties’ conduct. Neither of these conclusions is correct.

As already noted, a magistrate judge may carry out certain functions of a district court only “[u]pon the consent of the parties.” Congress’ use of the word “upon” suggests that the necessary consent must precede the magistrate judge’s exercise of his authority. “Upon” is defined as “immediately or very soon after.” The Random House Dictionary of the English Language 1570 (1966). Thus, under the plain language of the statute, consent is a precondition to the magistrate judge’s exercise of case-dispositive power; without it, a magistrate judge cannot preside over a trial or enter judgment. Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F. 2d 537, 540 (CA9 1984) (en banc) (Kennedy, J.).

The word “upon” is used to mean “thereafter” in other parts of the statute as well. For example, § 636(h) provides that a “magistrate judge who has retired may, upon the consent of the chief judge of the district involved, be recalled to serve as a magistrate judge . . . (Emphasis added.) Clearly, a retired magistrate judge cannot return to his former post before the chief judge consents. Similarly, § 636(e)(3) uses the word “upon” to mean “subsequent to.” That subsection grants magistrate judges the power to hold parties before them in contempt, but conditions the imposition of contempt sanctions “upon notice and hearing under the Federal Rules of Criminal Procedure.” (Emphasis added.) That is, a party cannot be held in contempt without first being given notice and a hearing. Because under the normal rules of statutory construction the Court “assumes that identical words used in different parts of the same act are intended to have the same meaning,” Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986) (citations and internal quotation marks omitted), the word “upon” in § 636(c)(1) must mean “thereafter,” just as it does in §§ 636(h) and (e)(3). By allowing consent to be “inferred from a party’s conduct during litigation,” ante, at 582 (emphasis added), the majority disregards the clear meaning of the word “upon.”

Similarly, the conclusion that implied, rather than express, consent suffices is not borne out by either § 636(c)(1) itself or the statutory scheme as a whole. The majority is, of course, correct that the relevant clause of § 636(c)(1) speaks only of “consent,” while the clause addressing part-time magistrate judges requires that consent be communicated by a “specific written request.” Ante, at 587 (internal quotation marks omitted). But this premise does not command the conclusion the majority draws. Both clauses require express consent, with the latter mandating a specific form of express consent — a written request.

This reading is most consistent with the statutory scheme. Despite the majority’s concession that § 636(c)(2) and Federal Rule of Civil Procedure 73 “are by no means just advisory,” ante, at 587, the majority fails to give them any weight. Section 636(c)(2) requires the clerk of the district court to notify the parties of the availability of a magistrate “at the time the action is filed,” after which the “decision of the parties [whether to consent] shall be communicated to the clerk of court.” The fact that the parties’ decision must be communicated to the clerk soon after the filing of the action indicates that the consent envisioned by the statute must be given affirmatively and expressly. Indeed, a party would find it quite difficult to “communicat[e]” the necessary consent to the clerk of the court through actions undertaken “during litigation,” ante, at 582 (emphasis added). The majority’s view suggests that the clerk of the court must monitor the parties’ behavior in the magistrate judge’s courtroom and determine, at some point not specified by the majority, that the parties’ actions have ripened into consent. That is not a reasonable interpretation. Accordingly, I would hold that appearance before a magistrate judge without objection cannot be deemed “consent” within the meaning of this statutory scheme.

Federal Rule of Civil Procedure 73 fortifies this reading. The Rule mirrors the provisions of § 636(c)(2) for informing parties of their option to proceed before a magistrate judge and of their obligation to file a consent form if they chose to do so. Fed. Rule Civ. Proc. 73(b) (“When a magistrate judge has been designated to exercise civil trial jurisdiction, the clerk shall give written notice to the parties of their opportunity to consent,” and if the parties agree, “they shall execute and file a joint form of consent or separate forms of consent ...” (emphasis added)).

Read together, the foregoing provisions indicate that parties must expressly communicate their consent to the magistrate judge’s exercise of jurisdiction over their case and must do so before litigation — or at the very least before a magistrate judge enters a binding judgment.

B

While I agree with the majority’s view that § 636(c)(1) was “meant to preserve a litigant’s right to insist on trial before an Article III district judge,” ante, at 588, and to prevent “coercive referrals,” ante, at 589, the majority’s construction of this provision does not follow the Court’s “settled policy to avoid an interpretation of a federal statute that engenders constitutional issues.” Gomez v. United States, 490 U. S. 858, 864 (1989).

“A critical limitation on [the] expanded jurisdiction [of magistrate judges] is consent.” Id., at 870. Reading § 636(c)(1) to require express consent not only is more consistent with the text of the statute, but also ensures that the parties knowingly and voluntarily waive their right to an Article III judge. A party’s express consent is a clear and unambiguous indication that the party had sufficient notice it was freely waiving its right. Accordingly, I would choose this interpretation over the majority’s view that implied consent suffices to give a magistrate judge dispositive authority over a case. Cf. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U. S. 389, 393 (1937) (holding that the parties, by their request for directed verdicts, did not waive their right to trial by jury, and observing that “courts indulge every reasonable presumption against waiver”); Ohio Bell Telephone Co. v. Public Util. Comm’n of Ohio, 301 U. S. 292, 307 (1937) (holding that a telephone company did not waive its right to have the value of its property determined upon evidence presented in open proceedings by not opposing consolidation of two proceedings, and noting that “[w]e do not presume acquiescence in the loss of fundamental rights”).

Moreover, the majority’s test for determining whether a party has given adequate implied consent — “where . . . the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge,” ante, at 590— is rife with ambiguities. How are the courts to determine whether the litigant or counsel “was made aware of the need to consent and the right to refuse it”? Are courts required to search beyond the record and inquire into whether a clerk of the court informed either a litigant or his counsel of the litigant’s rights and provided them with requisite forms to sign? Can courts rely, if applicable, on the parties’ participation in other unrelated proceedings before a magistrate judge? In addition, the majority’s view of what constitutes “voluntariness” in this context is not at all clear as it seems to depend, at least in part, on establishing a litigant’s or counsel’s awareness of the litigant’s rights.

Although the majority brushes aside the prudential implications of its reading, ante, at 591, n. 7 (“We doubt that this interpretation runs a serious risk of ‘spawning] a second litigation of significant dimension.’ Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 609 (2001)”), it is hardly a novel proposition that a bright-line rule would be easier to administer. And, it would certainly be so in adjudicating the validity of consent under this statute. If express consent is required, courts will not have to study the record of a proceeding on a case-by-case basis, searching for patterns in the parties’ behavior that would provide sufficient indicia of voluntariness to satisfy this newly minted, but vague, test for consent. A bright-line rule brings clarity and predictability, and, in light of the constitutional implications of this case, these values should not be discounted.

Given the uncertainties surrounding the determination of the validity of implied consent, it is not surprising that the majority does not even claim that the requirements of Article III have been satisfied in this case. Rather, all the majority can muster is that “the Article III right is substantially honored.” Ante, at 590 (emphasis added). However, litigants’ rights under Article III are either protected or they are not. As the majority suggests, its reading does not safeguard these rights. Indeed, the only protection offered by the majority is its hope that the “procedural requirements of § 636(c)(2) and Federal Rule of Civil Procedure 73(b)” will be complied with. Ante, at 591, n. 7. The majority offers no credible solution for circumstances, such as the ones here, where these rules were not followed.

Even apart from the plain text of the statute and the canon of constitutional avoidance, concerns about fairness — to which the majority alludes above, see ante, at 588-590— weigh in favor of express consent. According to the majority, the respondent is a “possibly opportunistic litigant,” who “deserves no boon from the other side’s failure to cross the bright line,” ante, at 590. The record, however, provides no evidence that respondent, proceeding pro se below, manipulated the system. Moreover, “the other side” is the State of Texas, a repeat player, represented by its own counsel, and no doubt familiar with the rules of the local federal courts. Finally, it was not respondent who raised the issue of consent, but the Court of Appeals, which considered the question sua sponte.

II

Because the parties here did not expressly consent to the proceeding before the Magistrate Judge, I next consider whether the lack of such consent destroys jurisdiction of a court of appeals reviewing a magistrate judge’s judgment. I believe it does, and thus, a court of appeals may — and indeed must — raise it sua sponte.

A court of appeals exercises jurisdiction over a magistrate judge’s final order pursuant to § 636(c)(3), which provides:

“Upon entry of judgment in any case referred under paragraph (I) of this subsection, an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court. The consent of the parties allows a magistrate judge designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure.” (Emphasis added.)

Under § 636(c)(3), appellate jurisdiction over final judgments entered by a magistrate judge depends on whether the requirements of § 636(c)(1), including consent, are satisfied. Absence of consent means absence of a “judgment,” which, in turn, means absence of appellate jurisdiction. Thus, under § 636, the necessary precondition for a court of appeals’ jurisdiction over a magistrate judge’s order is the parties’ consent to proceed before the magistrate judge. Because valid consent is a jurisdictional prerequisite for appellate jurisdiction, and, hence, an integral part of the inquiry into the existence of such jurisdiction, § 636(c)(3) permits a court of appeals to examine the validity of the consent to the magistrate judge’s authority sua sponte.

The de facto officer doctrine is not to the contrary. That doctrine “prevents] litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware.” Glidden Co. v. Zdanok, 370 U. S. 530, 535 (1962) (plurality opinion). Examples of such “technicalities” are defects in the judge’s appointment or designation. See, e. g., Ex parte Ward, 173 U. S. 452, 456 (1899) (judge improperly appointed during a Senate recess); Wright v. United States, 158 U. S. 232, 238 (1895) (deputy marshal whose oath of office had not been properly administered); McDowell v. United States, 159 U. S. 596, 601-602 (1895) (judge whose designation to sit in a different district may have been improper under the statute); Ball v. United States, 140 U. S. 118, 128-129 (1891) (judge sitting in place of a deceased judge where designation permitted only the substitution for a disabled judge). The doctrine is, however, inapplicable “when the alleged defect of authority operates also as a limitation on this Court’s appellate jurisdiction. Ayrshire Collieries Corp. v. United States, 331 U. S. 132 (three-judge court); United States v. Emholt, 105 U. S. 414 (certificate of divided opinion).” Glidden, 370 U. S., at 535 (plurality opinion). Additionally, “when the statute claimed to restrict authority is not merely technical but embodies a strong policy concerning the proper administration of judicial business, this Court has treated the alleged defect as ‘jurisdictional’ and agreed to consider it on direct review even though not raised at the earliest practicable opportunity.” Id., at 535-536. This is the case here — § 636(c) “embodies a strong policy” of ensuring that litigants waive their rights to an Article III judge knowingly and voluntarily. The requirement of consent is not a mere “technicality.” Sections 636(c)(1), 636(c)(2), and 636(c)(3) reference consent explicitly and require it as a precondition for the exercise of a magistrate judge’s authority and of a court of appeals’ review of the magistrate judge’s judgment. The foregoing indicates the importance of consent as a touchstone of this statutory scheme. Thus, absence of consent is a jurisdictional defect and a court of appeals must raise such defects sua sponte.

* * *

I would vacate the judgment below and remand the case with instructions to dismiss the appeal for lack of subject-matter jurisdiction. I respectfully dissent.

       On at least three different occasions, counsel for Roell and Garibay was present and stood silent when the Magistrate Judge stated that they had consented to her authority. First, in a status teleconference involving the addition of a new defendant, Danny Knutson, who later settled with Wi-throw and was dropped from the suit, the Magistrate Judge stated that “all of the other parties have consented to my jurisdiction.” App. 18. Petitioners later filed a motion for summary judgment, which the Magistrate Judge denied, noting in her order that “this case was referred to the undersigned to conduct all further proceedings, including entry of final judgment, in accordance with 28 U. S. C. § 636(c)(1).” App. to Pet. for Cert. 26a. And finally, during jury selection, the Magistrate Judge told the panel that both sides had consented to her jurisdiction to hear the case. Id., at 27a.

       Prior to the 1996 amendments to the Act, see Federal Courts Improvement Act of 1996, Pub. L. 104-317, §207(1)(B), 110 Stat. 3850, parties could also elect to appeal to “a judge of the district court in the same manner as on an appeal from a judgment of the district court to a court of appeals.” 28 U. S. C. § 636(c)(4) (1994 ed.) (repealed 1996). If the latter course was pursued, the court of appeals could grant leave to appeal the district court’s judgment. § 636(c)(5) (same). In all events, whether the initial appeal was to the court of appeals under § 636(e)(3) or to the district court under § 636(c)(4), the parties retained the right to seek ultimate review from this Court. § 636(c)(5) (same).

       See Black’s Law Dictionary 95 (7th ed. 1999) (“ ‘The term “appearance” . . . designate^] the overt act by which [a party] submits himself to the court’s jurisdiction.... An appearance may be expressly made by formal written or oral declaration, or record entry, or it may be implied from some act done with the intention of appearing and submitting to the court’s jurisdiction’ ” (quoting 4 Am. Jur. 2d, Appearance § 1, p. 620 (1995))).

         The parties do not dispute that the Magistrate Judge who presided over the trial was a full-time Magistrate Judge.

       The textual evidence cited by the dissent is far from conclusive. The dissent focuses on the fact that § 636(c)(1) allows a magistrate judge to exercise authority only “[u]pon” the parties’ consent, and it concludes that this temporal connotation forecloses accepting implied consent. But the timing of consent is a different matter from the manner of its expression, and it is perfectly in keeping with the sequence of events envisioned by § 686(c)(1) to infer consent from a litigant’s initial act of appearing before the magistrate judge and submitting to her jurisdiction, instead of insisting on trial before a district judge. An “appearance” being commonly understood as “[t]he first act of the defendant in court,” J. Ballen-tine, Law Dictionary with Pronunciations 91 (2d ed. 1948), any subsequent proceedings by the court will occur “[u]pon the consent of the parties,” § 636(c)(1).
      Furthermore, it is hardly true, contrary to the dissent’s claim, post, at 594 (opinion of Thomas, J.), that § 636(c)(2) and Rule 73(b) are pointless if implied consent is permitted under § 636(c)(1). Certainly, notification of the right to refuse the magistrate judge is a prerequisite to any inference of consent, so that aspect of §636(c)(2)’s protection is preserved. And litigants may undoubtedly insist that they be able to communicate their decision on the referral to the clerk, in order to guard against the risk of reprisals at the hands of either judge. The only question is whether a litigant who forgoes that procedural opportunity, but still voluntarily gives his consent through a general appearance before the magistrate judge, is still subject to the magistrate judge’s “civil jurisdiction,” and we think that the language of § 636(c)(1) indicates that he is.

       Originally, the third sentence of § 636(c)(2) provided that once the decision of the parties was communicated to the clerk, “neither the district judge nor the magistrate shall attempt to persuade or induce any party to •consent to reference of any civil matter to a magistrate.” 93 Stat. 643. In the 1990 amendments to the Act, Congress amended § 636(e)(2) to provide that even after the parties’ decision is made, “either the district court judge or the magistrate may again advise the parties of the availability of the magistrate, but in so doing, shall also advise the parties that they are free to withhold consent without adverse substantive consequences.” Judicial Improvements Act of 1990, Pub. L. 101-650, §308, 104 Stat. 5112. The change reflected Congress’s diminishing concern that communication between the judge and the parties would lead to coercive referrals. See H. R. Rep. No. 101-734, p. 27 (1990).

       We doubt that this interpretation runs a serious risk of “spawning] a second litigation of significant dimension.” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 609 (2001) (internal quotation marks omitted). In the first place, implied consent will be the exception, not the rule, since, as we discuss above, district courts remain bound by the procedural requirements of § 636(c)(2) and Federal Rule of Civil Procedure 73(b). See supra, at 586, 587-588, n. 5. The dissent surmises, post, at 596, that our position raises “ambiguities” as to whether an inference of consent will be supported in a particular case, but we think this concern is greatly exaggerated: as long as parties are notified of the availability of a district judge as required by § 636(c)(2) and Rule 73(b), a litigant’s general appearance before the magistrate judge will usually indicate the necessary consent. In all events, whatever risk of “secondfary] litigation” may exist under an implied consent rule pales in comparison to the inefficiency and unfairness of requiring relitigation of the entire case in circumstances like these.

       Because we conclude that Roell and Garibay impliedly consented to the Magistrate Judge’s authority, we need not address whether express postjudgment consent would be sufficient in a case where there was no prior consent, either express or implied. We also have no opportunity to decide Whether the Court of Appeals was correct that lack of consent is a “jurisdictional defect” that can be raised for the first time on appeal.


author: Justice Ginsburg Justice Scalia,

text:
    ILLINOIS ex rel. MADIGAN, ATTORNEY GENERAL OF ILLINOIS v. TELEMARKETING ASSOCIATES, INC., et al.
    No. 01-1806.
    Argued March 3, 2003
    Decided May 5, 2003

      Ginsburg, J., delivered the opinion for a unanimous Court. Scaxia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 624.

      Richard S. Huszagh, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the briefs were Lisa Madigan, Attorney General, James E. Ryan, former Attorney General, Joel D. Bertocchi, Solicitor General, Barry B. Gross, Chief Deputy Attorney General, and Jerald S. Post, Floyd D. Perkins, and Matthew D. Shapiro, Assistant Attorneys General.

      Deputy Solicitor General Clement argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Matthew D. Roberts, Jacob M. Lewis, and Catherine Hancock.

      Errol Copilevitz argued the cause for respondents. With him on the brief were William E. Raney, Mackenzie Canter III, and Mark Diskin.

      Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Richard E. Doran, Attorney General of Florida, Thomas E. Warner, Solicitor General, Louis F. Hubener and Matthew J. Conigliaro, Deputy Solicitors General, Jonathan A. Glogau, Arabella W. Teal, Corporation Counsel of the District of Columbia, Thomas R. Keller, Acting Attorney General of Hawaii, and Anabelle Rodriguez, Attorney General of Puerto Rico, and by the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Gregg D. Renkes of Alaska, Mark Lunsford Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blwmenthal of Connecticut, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Alan G. Lance of Idaho, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Phillip P. McLaughlin of New Hampshire, David Samson of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, Hardy Myers of Oregon, Mike Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Charles Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont,
        Jerry W. Kilgore of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and Hoke MacMillan of Wyoming; and for the Council of Better Business Bureaus, Inc., et al. by Steven J. Cole and Richard Woods.

      Briefs of amici curiae urging affirmance were filed for the American Teleservices Association by Robert Corn-Revere; for the Association of Fundraising Professionals et al. by Geoffrey W Peters and Walter J. Sczudlo; for Disabled American Veterans by Christopher J. Clay and John L. Moore, Jr.; for the Free Speech Defense and Education Fund, Inc., et al. by William J. Olson, John S. Miles, Herbert W. Titus, Mark Weinberg, and Mark Fitzgibbons; for Independent Sector et al. by Robert A. Bois-ture, Albert G. Lauber, and Lloyd H. Mayer; and for Public Citizen, Inc., et al. by Bonnie I. Robin-Vergeer and Alan B. Morrison.

      Briefs of amici curiae were filed for AARP by Deborah M. Zuckerman, Stacy J. Canan, and Michael R. Schuster; for Hudson Bay Co. of Illinois, Inc., by Thomas H. Goodman and Anthony J. Gleekel; and for Thirty-two Commercial Fundraisers et al. by Charles H. Nave.

   Justice Ginsburg

delivered the opinion of the Court.

This case concerns the amenability of for-profit fundraising corporations to suit by the Attorney General of Illinois for fraudulent charitable solicitations. The controversy arises from the fundraisers’ contracts with a charitable nonprofit corporation organized to advance the welfare of Vietnam veterans; under the contracts, the fundraisers were to retain 85 percent of the proceeds of their fundraising endeavors. The State Attorney General’s complaint alleges that the fundraisers defrauded members of the public by falsely representing that “a significant amount of each dollar donated would be paid over to [the veterans organization] for its [charitable] purposes while in fact the [fundraisers] knew that ... 15 cents or less of each dollar would be available” for those purposes. App. 9, ¶ 34. Complementing that allegation, the complaint states that the fundraisers falsely represented that “the funds donated would go to further . . . charitable purposes,” id., at 8, ¶ 29, when in fact “the amount . . . paid over to charity was merely incidental to the fund raising effort,” which was conducted primarily “for the private pecuniary benefit of” the fundraisers, id., at 9, ¶ 35.

The question presented is whether those allegations state a claim for relief that can survive a motion to dismiss. In accord with the Illinois trial and appellate courts, the Illinois Supreme Court held they did not. That court was “mindful of the opportunity for public misunderstanding and the potential for donor confusion which may be presented with fund-raising solicitations of the sort involved in th[is] case,” Ryan v. Telemarketing Associates, Inc., 198 Ill. 2d 345, 363, 763 N. E. 2d 289, 299 (2001); it nevertheless concluded that threshold dismissal of the complaint was compelled by this Court’s decisions in Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947 (1984), and Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988). Those decisions held that certain regulations of charitable subscriptions, barring fees in excess of a prescribed level, effectively imposed prior restraints on fund-raising, and were therefore incompatible with the First Amendment.

We reverse the judgment of the Illinois Supreme Court. Our prior decisions do not rule out, as supportive of a fraud claim against fundraisers, any and all reliance on the percentage of charitable donations fundraisers retain for themselves. While bare failure to disclose that information directly to potential donors does not suffice to establish fraud, when nondisclosure is accompanied by intentionally misleading statements designed to deceive the listener, the First Amendment leaves room for a fraud claim.

I

Defendants below, respondents here, Telemarketing Associates, Inc., and Armet, Inc., are Illinois for-profit fundraising corporations wholly owned and controlled by defendant-respondent Richard Troia. 198 Ill. 2d, at 847-348, 763 N. E. 2d, at 291. Telemarketing Associates and Armet were retained by VietNow National Headquarters, a charitable nonprofit corporation, to solicit donations to aid Vietnam veterans. Id., at 348, 763 N. E. 2d, at 291. In this opinion, we generally refer to respondents, collectively, as “Telemarketers.”

The contracts between the charity, VietNow, and the fundraisers, Telemarketers, provided that Telemarketers would retain 85 percent of the gross receipts from donors within Illinois, leaving 15 percent for VietNow. Ibid. Under the agreements, donor lists developed by Telemarketers would remain in their “sole and exclusive” control. App. 24,93-94, 102, ¶ 65. Telemarketers also brokered contracts on behalf of VietNow with out-of-state fundraisers; under those contracts, out-of-state fundraisers retained between 70 percent and 80 percent of donated funds, Telemarketers received between 10 percent and 20 percent as a finder’s fee, and Viet-Now received 10 percent. 198 Ill. 2d, at 348, 763 N. E. 2d, at 291. Between July 1987 and the end of 1995, Telemarketers collected approximately $7.1 million, keeping slightly more than $6 million for themselves, and leaving approximately $1.1 million for the charity. Ibid.

In 1991, the Illinois Attorney General filed a complaint against Telemarketers in state court. Id., at 348-350, 763 N. E. 2d, at 291-292. The complaint asserted common-law and statutory claims for fraud and breach of fiduciary duty. Ibid. It alleged, inter alia, that the 85 percent fee for which Telemarketers contracted was “excessive” and “not justified by expenses [they] paid.” App. 103, ¶72. Dominantly, however, the complaint concerned misrepresentation.

In the course of their telephone solicitations, the complaint states, Telemarketers misleadingly represented that “funds donated would go to further Viet[N]ow’s charitable purposes.” Id., at 8, ¶ 29. Affidavits attached to the complaint aver that Telemarketers told prospective donors their contributions would be used for specifically identified charitable endeavors; typical examples of those endeavors include “food baskets given to vets [and] their families for Thanksgiving,” id., at 124, paying “bills and rent to help physically and mentally disabled Vietnam vets and their families,” id., at 131, “jo[b] training,” id., at 145, and “rehabilitation [and] other services for Vietnam vets,” id., at 169 (some capitalization omitted in quotes). One affiant asked what percentage of her contribution would be used for fundraising expenses; she “was told 90% or more goes to the vets.” Ibid, (capitalization omitted). Another affiant stated she was told her donation would not be used for “labor expenses” because “all members are volunteers.” Id., at 111 (capitalization omitted). Written materials Telemarketers sent to each donor represented that contributions would “be used to help and assist Viet[N]ow’s charitable purposes.” Id., at 8, ¶ 30.

The 15 cents or less of each solicited dollar actually made available to VietNow, the Attorney General charged, “was merely incidental to the fund raising effort”; consequently, she asserted, “representations made to donors [that a significant amount of each dollar donated would be paid over to Viet[N]ow for its purposes] were knowingly deceptive and materially false, constituted a fraud[,] and were made for the private pecuniary benefit of [Telemarketers].” Id., at 9, ¶¶ 34, 35.

Telemarketers moved to dismiss the fraud claims, urging that they were barred by the First Amendment. The trial court granted the motion, and the dismissal order was affirmed, in turn, by the Illinois Appellate Court and the Illinois Supreme Court. The Illinois courts placed heavy weight on three decisions of this Court: Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947 (1984); and Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988). Each of the three decisions invalidated state or local laws that categorically restrained solicitation by charities or professional fundraisers if a high percentage of the funds raised would be used to cover administrative or fundraising costs. Schaumburg, 444 U. S., at 620; Munson, 467 U. S., at 947; and Riley, 487 U. S., at 781; see 198 Ill. 2d, at 359, 763 N. E. 2d, at 297.

The Illinois Supreme Court acknowledged that this case, unlike Schaumburg, Munson, and Riley, involves no prophylactic provision proscribing any charitable solicitation if fundraising costs exceeded a prescribed limit. Instead, the Attorney General sought to enforce the State’s generally applicable antifraud laws against Telemarketers for “specific instances of deliberate deception.” 198 Ill. 2d, at 358, 763 N. E. 2d, at 296 (quoting Riley, 487 U. S., at 803 (SCALIA, J., concurring)). “However,” the court said, “the statements made by [Telemarketers] during solicitation are alleged to be ‘false’ only because [Telemarketers] retained 85% of the gross receipts and failed to disclose this information to donors.” 198 Ill. 2d, at 359, 763 N. E. 2d, at 297. The Attorney General’s complaint, in the Illinois Supreme Court’s view, was “in essence, an attempt to regulate [Telemarketers’] ability to engage in a protected activity based upon a percentage-rate limitation” — “the same regulatory principle that was rejected in Schaumburg[,] Munson, and Riley.” Ibid.

“[H]igh solicitation costs,” the Illinois Supreme Court stressed, “can be attributable to a number of factors.” Ibid. In this case, the court noted, Telemarketers contracted to provide a “wide range” of services in addition to telephone solicitation. Ibid. For example, they agreed to publish a newsletter and to maintain a toll-free information hotline. Id., at 359-360, 763 N. E. 2d, at 297-298. Moreover, the court added, VietNow received “nonmonetary benefits by having [its] message disbursed by the solicitation process,” and Telemarketers were directed to solicit “in a manner that would 'promote goodwill’ on behalf of VietNow.” Id., at 361, 763 N. E. 2d, at 298. Taking these factors into account, the court concluded that it would be “incorrect to presume . . . [any] nexus between high solicitation costs and fraud.” Id., at 360, 763 N. E. 2d, at 298.

The Illinois Supreme Court further determined that, under Riley, “fraud cannot be defined in such a way that it places on solicitors the affirmative duty to disclose to potential donors, at the point of solicitation, the net proceeds to be returned to the charity.” Id., at 361, 763 N. E. 2d, at 298. Finally, the court expressed the fear that if the complaint were allowed to proceed, all fundraisers in Illinois would be saddled with “the burden of defending the reasonableness of their fees, on a ease-by-case basis, whenever in the Attorney General’s judgment the public was being deceived about the charitable nature of a fund-raising campaign because the fund-raiser’s fee was too high.” Id., at 362, 763 N. E. 2d, at 299. The threatened exposure to litigation costs and penalties, the court said, “could produce a substantial chilling effect on protected speech.” Ibid. We granted cer-tiorari. 537 U. S. 999 (2002).

II

The First Amendment protects the right to engage m charitable solicitation. See Schaumburg, 444 U. S., at 632 (“charitable appeals for funds ... involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes — that are within the protection of the First Amendment”); Riley, 487 U. S., at 788-789. But the First Amendment does not shield fraud. See, e. g., Donaldson v. Read Magazine, Inc., 333 U. S. 178, 190 (1948) (the government’s power “to protect people against fraud” has “always been recognized in this country and is firmly established”); Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974) (the “intentional lie” is “no essential part of any exposition of ideas” (internal quotation marks omitted)). Like other forms of public deception, fraudulent charitable solicitation is unprotected speech. See, e.g., Schneider v. State (Town of Irvington), 308 U. S. 147, 164 (1939) (“Frauds,” including “fraudulent appeals . . . made in the name of charity and religion,” may be “denounced as offenses and punished by law.”); Donaldson, 333 U. S., at 192 (“A contention cannot be seriously considered which assumes that freedom of the press includes a right to raise money to promote circulation by deception of the public.”).

The Court has not previously addressed the First Amendment’s application to individual fraud actions of the kind at issue here. It has, however, three times considered prophylactic statutes designed to combat fraud by imposing prior restraints on solicitation when fundraising fees exceeded a specified reasonable level. Each time, the Court held the prophylactic measures unconstitutional.

In Schaumburg, decided in 1980, the Court invalidated a village ordinance that prohibited charitable organizations from soliciting contributions unless they used at least 75 percent of their receipts “directly for the charitable purpose of the organization.” 444 U. S., at 624 (internal quotation marks omitted). The ordinance defined “charitable purposes” to exclude salaries and commissions paid to solicitors, and the administrative expenses of the charity, including salaries. Ibid. The village of Schaumburg’s “principal justification” for the ordinance was fraud prevention: “[A]ny organization using more than 25 percent of its receipts on fund-raising, salaries, and overhead,” Schaumburg submitted, “is not a charitable, but a commercial, for-profit enterprise”;, “to permit [such an organization] to represent itself as a charity,” the village urged, “is fraudulent.” Id., at 636.

The Court agreed with Schaumburg that fraud prevention ranks as “a substantial governmental interes[t],” ibid., but concluded that “the 75-percent requirement” promoted that interest “only peripherally.” Ibid. Spending “more than 25 percent of [an organization’s] receipts on fundraising, salaries, and overhead,” the Court explained, does not reliably indicate that the enterprise is “commercial” rather than “charitable.” Ibid. Such spending might be altogether appropriate, Schaumburg noted, for a charitable organization “primarily engaged in research, advocacy, or public education [that uses its] own paid staff to carry out these functions as well as to solicit financial support.” Id., at 636-637. “The Village’s legitimate interest in preventing fraud,” the Court stated, “can be better served by measures less intrusive than a direct prohibition on solicitation,” id., at 637: “Fraudulent misrepresentations can be prohibited and the penal laws used to punish such conduct directly,” ibid.

Four years later, in Munson, the Court invalidated a Maryland law that prohibited charitable organizations from soliciting if they paid or agreed to pay as expenses more than 25 percent of the amount raised. Unlike the inflexible ordinance in Schaumburg, the Maryland law authorized a waiver of the 25 percent limitation “where [it] would effectively prevent the charitable organization from raising contributions.” 467 U. S., at 950-951, n. 2. The Court held that the waiver provision did not save the statute. Id., at 962. “[No] reaso[n] other than financial necessity warranted] a waiver,” Munson observed. Id., at 963. The statute provided no shelter for a charity that incurred high solicitation costs because it chose to disseminate information as part of its fundraising. Ibid. Nor did it shield a charity whose high solicitation costs stemmed from the unpopularity of its cause. Id., at 967.

“[N]o doubt [there] are organizations that have high fund-raising costs not due to protected First Amendment activity,” the Court recognized; it concluded, however, that Maryland’s statute was incapable of “distinguishing] those organizations from charities that have high costs due to protected First Amendment activities.” Id., at 966. The statute’s fatal flaw, the Court said, was that it “operate[d] on [the] fundamentally mistaken premise that high solicitation costs are an accurate measure of fraud.” Ibid. As in Schaumburg, the Court noted, fraud could be checked by “measures less intrusive than a direct prohibition on solicitation”: Fraud could be punished directly and the State “could require disclosure of the finances of a charitable organization so that a member of the public could make an informed decision about whether to contribute.” 467 U. S., at 961, and n. 9.

Third in the trilogy of eases on which the Illinois Supreme Court relied was our 1988 decision in Riley. The village ordinance in Schaumburg and the Maryland law in Munson regulated charities; the North Carolina charitable solicitation controls at issue in Riley directly regulated professional fundraisers. North Carolina’s law prohibited professional fundraisers from retaining an “unreasonable” or “excessive” fee. 487 U. S., at 784 (internal quotation marks omitted). Fees up to 20 percent of the gross receipts collected were deemed reasonable; fees between 20 percent and 35 percent were deemed unreasonable if the State showed that the solicitation did not involve advocacy or dissemination of information. Id., at 784-785. Fees exceeding 35 percent were presumed unreasonable, but the fundraiser could rebut the presumption by showing either that the solicitation involved advocacy or information dissemination, or that, absent the higher fee, the charity’s “ability to raise money or communicate would be significantly diminished.” Id., at 785-786.

Relying on Schaumburg and Munson, the Court’s decision in Riley invalidated North Carolina’s endeavor to rein in charitable solicitors’ fees. The Court held, once again, that fraud may not be inferred simply from the percentage of charitable donations absorbed by fundraising costs. See 487 U. S., at 789 (“solicitation of charitable contributions is protected speech”; “using percentages to decide the legality of the fundraiser’s fee is not narrowly tailored to the State’s interest in preventing fraud”).

The opportunity to rebut the unreasonableness presumption attending a fee over 35 percent did not bring North Carolina’s scheme within the constitutional zone, the Court explained. Under the State’s law, “even where a prima facie showing of unreasonableness ha[d] been rebutted, the fact-finder [still had to] make an ultimate determination, on a case-by-case basis, as to whether the fee was reasonable — a showing that the solicitation involved . . . advocacy or [the] dissemination of information [did] not alone establish that the total fee was reasonable.” Id., at 786.

Training on that aspect of North Carolina’s regulation, the Court stated: “Even if we agreed that some form of a percentage-based measure could be used, in part, to test for fraud, we could not agree to a measure that requires the speaker to prove ‘reasonableness’ case by case based upon what is at best a loose inference that the fee might be too high.” Id., at 793. “[E]very campaign incurring fees in excess of 35% . . . [would] subject [fundraisers] to potential litigation over the ‘reasonableness’ of the fee,” the Court observed; that litigation risk, the Court concluded, would “chill speech in direct contravention of the First Amendment’s dictates.” Id., at 794. Especially likely to be burdened, the Riley opinion noted, were solicitations combined with advocacy or the communication of information, and fundraising by small or unpopular charities. Ibid. The Court cautioned, however, as it did in Schaumburg and Munson, that States need not “sit idly by and allow their citizens to be defrauded.” 487 U. S., at 795. We anticipated that North Carolina law enforcement officers would be “ready and able” to enforce the State’s antifraud law. Ibid.

Riley presented a further issue. North Carolina law required professional fundraisers to disclose to potential donors, before asking for money, the percentage of the prior year’s charitable contributions the fundraisers had actually turned over to charity. Ibid. The State defended this disclosure requirement as a proper means to dispel public mis-perception that the money donors gave to professional fundraisers went in greater-than-actual proportion to benefit charity. Id., at 798.

This Court condemned the measure as an “unduly burdensome” prophylactic rule, an exaction unnecessary to achieve the State’s goal of preventing donors from being misled. Id., at 800. The State’s rule, Riley emphasized, conclusively presumed that “the charity derive[d] no benefit from funds collected but not turned over to it.” Id., at 798. This was “not necessarily so,” the Court said, for charities might well benefit from the act of solicitation itself, when the request for funds conveyed information or involved cause-oriented advocacy. Ibid.

The Court noted in Riley that North Carolina (like Illinois here) required professional fundraisers to disclose their professional status. Id., at 799; see Ill. Comp. Stat., ch. 225, §460/17(a) (2001); supra, at 609, n. 4, 611, n. 6. That disclosure, the Court said, effectively notified contributors that a portion of the money they donated would underwrite solicitation costs. A concerned donor could ask how much of the contribution would be turned over to the charity, and under North Carolina law, fundraisers would be obliged to provide that information. Riley, 487 U. S., at 799 (citing N. C. Gen. Stat. § 131C-16 (1986)). But upfront telephone disclosure of the fundraiser’s fee, the Court believed, might end as well as begin the conversation: A potential contributor who thought the fee too high might simply hang up. 487 U. S., at 799-800. “[M]ore benign and narrowly tailored options” that would not chill solicitation altogether were available; for example, the Court suggested, “the State may itself publish the detailed financial disclosure forms it requires professional fundraisers to file,” and “[it] may vigorously enforce its antifraud laws to prohibit professional fundraisers from obtaining money on false pretenses or by making false statements.” Ibid.

Ill

A

The Court’s opinions in Schaumburg, Munson, and Riley took care to leave a corridor open for fraud actions to guard the public against false or misleading charitable solicitations. See Schaumburg, 444 U. S., at 637; Munson, 467 U. S., at 961, and n. 9; Riley, 487 U. S., at 795, 800. As those decisions recognized, and as we further explain below, there are differences critical to First Amendment concerns between fraud actions trained on representations made in individual cases and statutes that categorically ban solicitations when fund-raising costs rim high. See Part III-B, infra. Simply labeling an action one for “fraud,” of course, will not carry the day. For example, had the complaint against Telemarketers charged fraud based solely on the percentage of donations the fundraisers would retain, or their failure to alert potential donors to their fee arrangements at the start of each telephone call, Riley would support swift dismissal. A State’s Attorney General surely cannot gain case-by-case ground this Court has declared off limits to legislators.

Portions of the complaint in fact filed by the Attorney General are of this genre. See, e. g., App. 103, ¶ 72 (asserting that Telemarketers’ charge “is excessive” and “not justified by expenses [they] paid”); id., at 86, ¶¶ 67H-67I (alleging statutory violations based on failure to disclose to prospective donors Telemarketers’ percentage fee). As we earlier noted, however, see supra, at 608-609, the complaint and annexed affidavits, in large part, alleged not simply what Telemarketers failed to convey; they also described what Telemarketers misleadingly represented.

Under Illinois law, similar to the Federal Rules of Civil Procedure, “[w]hen the legal sufficiency of a complaint is challenged by a . . . motion to dismiss, all well-pleaded facts in the complaint are taken as true and [the court] must determine whether the allegations . . . , when interpreted in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted.” Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 490, 675 N. E. 2d 584, 588 (1997) (emphasis added). Dismissal is proper “only if it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover.” 198 Ill. 2d, at 351, 763 N. E. 2d, at 293.

Taking into account the affidavits, and reading the complaint in the light most favorable to the Attorney General, that pleading described misrepresentations our precedent does not place under the First Amendment’s cover. First, it asserted that Telemarketers affirmatively represented that “a significant amount of each dollar donated would be paid over to Viet[N]ow” to be used for specific charitable purposes — rehabilitation services, job training, food baskets, and assistance for rent and bills, App. 9, ¶ 34; id., at 124, 131, 145, 163, 169, 187, 189 — while in reality Telemarketers knew that “15 cents or less of each dollar” was “available to Viet-[N]ow for its purposes.” Id., at 9, ¶ 34. Second, the complaint alleged, essentially, that the charitable solicitation was a facade: Although Telemarketers represented that donated funds would go to VietNow’s specific “charitable purposes,” id., at 8, ¶ 29, the “amount of funds being paid over to charity was merely incidental to the fund raising effort,” which was made “for the private pecuniary benefit of [Telemarketers] and their agents,” id., at 9, ¶ 35. Cf., e. g., Voices for Freedom, CCH Trade Reg. ¶ 23,080 (1993) [1987-1993 Transfer Binder] (complaint against fundraisers who, inter alia, represented that “substantial portions of the funds from [the sale of commemorative bracelets] would be used to support a message center for the troops stationed in the Persian Gulf,” but “did not use substantial portions of the bracelet-sales proceeds to support the message center”).

Fraud actions so tailored, targeting misleading affirmative representations about how donations will be used, are plainly distinguishable, as we next discuss, from the measures invalidated in Schaumburg, Munson, and Riley: So long as the emphasis is on what the fundraisers misleadingly convey, and not on percentage limitations on solicitors’ fees per se, such actions need not impermissibly chill protected speech.

B

In Schaumburg, Munson, and Riley, the Court invalidated laws that prohibited charitable organizations or fundraisers from engaging in charitable solicitation if they spent high percentages of donated funds on fundraising — whether or not any fraudulent representations were made to potential donors. Truthfulness even of all representations was not a defense. See supra, at 612-616. In contrast to the prior restraints inspected in those cases, a properly tailored fraud action targeting fraudulent representations themselves employs no “[b]road prophylactic rul[e],” Schaumburg, 444 U. S., at 637 (internal quotation marks and citation omitted), lacking any “nexus ... [to] the likelihood that the solicitation is fraudulent,” Riley, 487 U. S., at 793. Such an action thus falls on the constitutional side of the line the Court’s cases draw “between regulation aimed at fraud and regulation aimed at something else in the hope that it would sweep fraud in during the process.” Munson, 467 U. S., at 969-970. The Illinois Attorney General’s complaint, in this light, has a solid core in allegations that home in on affirmative statements Telemarketers made intentionally misleading donors regarding the use of their contributions. See supra, at 608-609.

Of prime importance, and in contrast to a prior restraint on solicitation, or a regulation that imposes on fundraisers an uphill burden to prove their conduct lawful, in a properly tailored fraud action the State bears the full burden of proof. False statement alone does not subject a fundraiser to fraud liability. As restated in Illinois case law, to prove a defendant liable for fraud, the complainant must show that the defendant made a false representation of a material fact knowing that the representation was false; further, the complainant must demonstrate that the defendant made the representation with the intent to mislead the listener, and succeeded in doing so. See In re Witt, 145 Ill. 2d 380, 391, 583 N. E. 2d 526, 531 (1991). Heightening the complainant’s burden, these showings must be made by clear and convincing evidence. See Hofmann v. Hofmann, 94 Ill. 2d 205, 222, 446 N. E. 2d 499, 506 (1983).

Exacting proof requirements of this order, in other contexts, have been held to provide sufficient breathing room for protected speech. See New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964) (action for defamation of public official); Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 502, and n. 19 (1984) (noting “kinship” between New York Times standard and “motivation that must be proved to support a common-law action for deceit”). As an additional safeguard responsive to First Amendment concerns, an appellate court could independently review the trial court’s findings. Cf. Bose Corp., 466 U. S., at 498-511 (de novo appellate review of findings regarding actual malice). What the First Amendment and our case law emphatically do not require, however, is a blanket exemption from fraud liability for a fundraiser who intentionally misleads in calls for donations.

The Illinois Supreme Court in the instant case correctly observed that “the percentage of [fundraising] proceeds turned over to a charity is not an accurate measure of the amount of funds used ‘for’ a charitable purpose.” 198 Ill. 2d, at 360, 763 N. E. 2d, at 298 (citing Munson, 467 U. S., at 967, n. 16). But the gravamen of the fraud action in this case is not high costs or fees, it is particular representations made with intent to mislead. If, for example, a charity conducted an advertising or awareness campaign that advanced charitable purposes in conjunction with its fundraising activity, its representation that donated funds were going to “charitable purposes” would not be misleading, much less intentionally so. Similarly, charitable organizations that engage primarily in advocacy or information dissemination could get and spend money for their activities without risking a fraud charge. See Schaumburg, 444 U. S., at 636-637; Munson, 467 U. S., at 963; Riley, 487 U. S., at 798-799.

The Illinois Attorney General here has not suggested that a charity must desist from using donations for information dissemination, advocacy, the promotion of public awareness, the production of advertising material, the development or enlargement of the charity’s contributor base, and the like. Rather, she has alleged that Telemarketers attracted donations by misleading potential donors into believing that a substantial portion of their contributions would fund specific programs or services, knowing full well that was not the case. See supra, at 608-609, 618-619. Such representations remain false or misleading, however legitimate the other purposes for which the funds are in fact used.

We do not agree with Telemarketers that the Illinois Attorney General’s fraud action is simply an end run around Riley’s holding that fundraisers may not be required, in every telephone solicitation, to state the percentage of receipts the fundraiser would retain. See Brief for Respondents 14-19. It is one thing to compel every fundraiser to disclose its fee arrangements at the start of a telephone conversation, quite another to take fee arrangements into account in assessing whether particular affirmative representations designedly deceive the public.

C

Our decisions have repeatedly recognized the legitimacy of government efforts to enable donors to make informed choices about their charitable contributions. In Schaum-burg, the Court thought it proper to require “disclosure of the finances of charitable organizations,” thereby to prevent fraud “by informing the public of the ways in which their contributions will be employed.” 444 U. S., at 638. In Munson, the Court reiterated that “disclosure of the finances of a charitable organization” could be required “so that a member of the public could make an informed decision about whether to contribute.” 467 U. S., at 961-962, n. 9. And in Riley, the Court said the State may require professional fundraisers to file “detailed financial disclosure forms” and may communicate that information to the public. 487 U. S., at 800; see also id., at 799, n. 11 (State may require fundraisers “to disclose unambiguously [their] professional status”).

In accord with our precedent, as Telemarketers and their amici acknowledge, in “[a]lmost all of [the] states and many localities,” charities and professional fundraisers must “register and file regular reports on activities^] particularly fundraising costs.” Brief for Respondents 37; see Brief for Independent Sector et al. as Amici Curiae 6-8. These reports are generally available to the public; indeed, “[m]any states have placed the reports they receive from charities and professional fundraisers on the Internet.” Brief for Respondents 39; see Brief for Independent Sector et al. as Amici Curiae 9-10. Telemarketers do not object on First Amendment grounds to these disclosure requirements. Tr. of Oral Arg. 43.

Just as government may seek to inform the public and prevent fraud through such disclosure requirements, so it may “vigorously enforce . . . antifraud laws to prohibit professional fundraisers from obtaining money on false pretenses or by making false statements.” Riley, 487 U. S., at 800. High fundraising costs, without more, do not establish fraud. See id., at 793. And mere failure to volunteer the fundraiser’s fee when contacting a potential donee, without more, is insufficient to state a claim for fraud. Id., at 795-801. But these limitations do not disarm States from assuring that their residents are positioned to make informed choices about their charitable giving. Consistent with our precedent and the First Amendment, States may maintain fraud actions when fundraisers make false or misleading representations designed to deceive donors about how their donations will be used.

* * *

For the reasons stated, the judgment of the Illinois Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Scalia,

with whom Justice Thomas joins, concurring.

The question presented by the petition for certiorari in this case reads as follows: “Whether the First Amendment categorically prohibits a State from pursuing a fraud action against a professional fundraiser who represents that donations will be used for charitable purposes but in fact keeps the vast majority (in this case 85 percent) of all funds donated.” Pet. for Cert. i. I join the Court’s opinion because I think it clear from the opinion that if the only representation made by the fundraiser were the one set forth in the question presented (“that donations will be used for charitable purposes”), and if the only evidence of alleged failure to comply with that representation were the evidence set forth in the question presented (that the fundraiser “keeps the vast majority (in this case 85 percent) of all funds donated”), the answer to the question would be yes.

It is the teaching of Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 793 (1988), and Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 966 (1984), that since there is such wide disparity in the legitimate expenses borne by charities, it is not possible to establish a maximum percentage that is reasonable. It also follows from that premise that there can in general be no reasonable expectation on the part of donors as to what fraction of the gross proceeds goes to expenses. When that proposition is combined with the unquestionable fact that one who is promised, without further specification, that his charitable contribution will go to a particular cause must reasonably understand that it will go there after the deduction of legitimate expenses, the conclusion must be that the promise is not broken (and hence fraud is not committed) by the mere fact that expenses are very high. Today’s judgment, however, rests upon a “solid core” of misrepresentations, ante, at 620, that go well beyond mere commitment of the collected funds to the charitable purpose.

       The petition for certiorari further alleges that, of the money raised by Telemarketers, VietNow in the end spent only about 3 percent to provide charitable services to veterans. Pet. for Cert. 2, and n. 1; see IRS Form 990, filed by VietNow in 2000, available at http://167.10.5.131/Ct0601_0700/ 0652/1M11INDV.PDF (as visited Apr. 10, 2003) (available in Clerk of Court’s case file).

       References to the complaint in this opinion include all amendments to that pleading.

       Under Illinois law, exhibits attached to a complaint and referred to in a pleading become part of the pleading “for all purposes.” Ill. Comp. Stat., ch. 735, § 5/2-606 (1992); Pure Oil Co. v. Miller-McFarland Drilling Co., 376 Ill. 486, 497-498, 34 N. E. 2d 854, 859 (1941); 3 R. Michael, Illinois Practice §23.9, pp. 332-333, nn. 7-9 and accompanying text (1989) (collecting Illinois cases). Telemarketers’ counsel stated at oral argument that the Illinois Supreme Court had ‘found as a matter of law that [the] affidavits were not part of the complaint.” Tr. of Oral Arg. 40. We can locate no such finding in the court’s opinion. Asked to supply a citation after argument, see id., at 41, counsel directed us to the court’s statement that “there is no allegation that [Telemarketers] made affirmative misstatements to potential donors.” 198 Ill. 2d 345, 348, 763 N. E. 2d 289, 291 (2001)); see Letter from William E. Raney to William K. Suter, Clerk of the Court (Mar. 4, 2003). In so stating, the Illinois court overlooked, most obviously, the two affidavits attesting to Telemarketers’ representations that “90% or more goes to the vets,” and that there would be no “labor expenses.” See App. Ill, 169 (capitalization omitted). In any event, the sentence fragment counsel identified falls short of showing, in the face of established Illinois case law, that the court “found” the affidavits annexed by the Illinois Attorney General dehors the complaint. Counsel’s contention is further clouded by the Illinois Supreme Court’s explicit notation that “the Attorney General ha[d] attached to his complaint the affidavits of 44 VietNow donors.” 198 Ill. 2d, at 352, 763 N. E. 2d, at 293.

       Illinois law provides that “[i]n any solicitation to the public for a charitable organization by a professional fund raiser or professional solicitor!,] [t]he public member shall be promptly informed by statement in verbal communications and by clear and unambiguous disclosure in written materials that the solicitation is being made by a paid professional fund raiser. The fund raiser, solicitor, and materials used shall also provide the professional fund raiser’s name and a statement that contracts and reports regarding the charity are on file with the Illinois Attorney General and additionally, in verbal communications, the solicitor’s true name must be provided.” Ill. Comp. Stat., ch. 225, §460/17(a) (2001).

       The parties subsequently stipulated to the dismissal of all remaining claims. App. to Pet. for Cert. 30-31.

       Contracts for fundraising campaigns in Illinois must be filed with the State’s Attorney General, see Ill. Comp. Stat., ch. 225, §§460/2(a)(10) and 460/7 (2001), and those contracts must disclose all fundraiser fees, including any “stated percentage of the gross amount raised” to be retained by the fundraiser, §460/7(b); see §460/7(d). The filings are open for public inspection. §460/2(f). Illinois law also provides that fundraisers must disclose “the percentage to be received by the charitable organization from each contribution, if such disclosure is requested by the person solicited.” §460/17(b). Telemarketers did not challenge these requirements.

       We are therefore unpersuaded by Telemarketers’ plea that they lacked fair notice of their vulnerability to fraud actions. See Brief for Respondents 46, 49-50.

       Although fundraiser retention of 85 percent of donations is significantly higher than the 35 percent limit in Riley, this Court has not yet accepted any percentage-based measure as dispositive. See supra, at 615 (quoting Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 793 (1988)).

       In Riley, this Court expressed concern that case-by-case litigation over the reasonableness of fundraising fees would inhibit speech. 487 U. S., at 793-794. That concern arose in large measure because the North Carolina statute there at issue placed the burden of proof on the fundraiser. The Court has long cautioned that, to avoid chilling protected speech, the government must bear the burden of proving that the speech it seeks to prohibit is unprotected. See Freedman v. Maryland, 380 U. S. 51, 58 (1965); Speiser v. Randall, 357 U. S. 513, 525-526 (1958). The government shoulders that burden in a fraud action.

       Although this case does not present the issue, the Illinois Attorney General urges that a constitutional requirement resembling “actual malice” does not attend “every form of liability by charitable solicitors who misrepresent the use of donations.” Reply Brief 16-17, n. 11 (internal quotation marks omitted). We confine our consideration to the complaint in this case, which alleged that Telemarketers- “acted with knowledge of the falsity of their representations.” Ibid.

        Amicus Mothers Against Drunk Driving (MADD), for example, states that its mission is “to communicate the message ‘Don’t Drink and Drive.’ ” Brief for Public Citizen, Inc., et al. as Amici Curiae 13. Telephone solicitors retained by MADD “reach millions of people a year, and each call educates the public about the tragedy of drunk driving, provides statistics and asks the customer to always designate a sober driver.” Ibid, (internal quotation marks and citation omitted). Solicitations that described MADD’s charitable mission would not be fraudulent simply because MADD devotes a large proportion of its resources to fundraising calls, for those calls themselves ftilfill its advocacy/information dissemination mission.

       This Court has consistently recognized that small or unpopular charities would be hindered by limitations on the portion of receipts they could devote to subscription building. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 967 (1984); Riley, 487 U. S., at 794.


author: Per Curiam.

text:
    KAUPP v. TEXAS
    No. 02-5636.
    Decided May 5, 2003
   Per Curiam.

This case turns on the Fourth Amendment rule that a confession “obtained by exploitation of an illegal arrest” may not be used against a criminal defendant. Brown v. Illinois, 422 U. S. 590, 603 (1975). After a 14-year-old girl disappeared in January 1999, the Harris County Sheriff’s Department learned she had had a sexual relationship with her 19-year-old half brother, who had been in the company of petitioner Robert Kaupp, then 17 years old, on the day of the girl’s disappearance. On January 26th, deputy sheriffs questioned the brother and Kaupp at headquarters; Kaupp was cooperative and was permitted to leave, but the brother failed a polygraph examination (his third such failure). Eventually he confessed that he had fatally stabbed his half sister and placed her body in a drainage ditch. He implicated Kaupp in the crime.

Detectives immediately tried but failed to obtain a warrant to question Kaupp. Detective Gregory Pinkins nevertheless decided (in his words) to “get [Kaupp] in and confront him with what [the brother] had said.” App. A to Pet. for Cert. 2. In the company of two other plainclothes detectives and three uniformed officers, Pinkins went to Kaupp’s house at approximately 3 a.m. on January 27th. After Kaupp’s father let them in, Pinkins, with at least two other officers, went to Kaupp’s bedroom, awakened him with a flashlight, identified himself, and said, “‘we need to go and talk.’” Ibid. Kaupp said “‘Okay.’” Ibid. The two officers then handcuffed Kaupp and led him, shoeless and dressed only in boxer shorts and a T-shirt, out of his house and into a patrol car. The State points to nothing in the record indicating Kaupp was told that he was free to decline to go with the officers.

They stopped for 5 or 10 minutes where the victim’s body had just been found, in anticipation of confronting Kaupp with the brother’s confession, and then went on to the sheriff’s headquarters. There, they took Kaupp to an interview room, removed his handcuffs, and advised him of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). Kaupp first denied any involvement in the victim’s disappearance, but 10 or 15 minutes into the interrogation, told of the brother’s confession, he admitted having some part in the crime. He did not, however, acknowledge causing the fatal wound or confess to murder, for which he was later indicted.

After moving unsuccessfully to suppress his confession as the fruit of an illegal arrest, Kaupp was convicted and sentenced to 55 years’ imprisonment. The State Court of Appeals affirmed the conviction by unpublished opinion, concluding that no arrest had occurred until after the confession. The state court said that Kaupp consented to go with the officers when he answered “'Okay’” to Pinkins’s statement that “‘we need to go and talk.’” App. A to Pet. for Cert. 2, 6. The court saw no contrary significance in the subsequent handcuffing and removal to the patrol car, given the practice of the sheriff’s department in “routinely” using handcuffs for safety purposes when transporting individuals, as officers had done with Kaupp only the day before. Id., at 6. The court observed that “a reasonable person in [Kaupp’s] position would not believe that being put in handcuffs was a significant restriction on his freedom of movement.” Ibid. Finally, the state court noted that Kaupp “did not resist the use of handcuffs or act in a manner consistent with anything other than full cooperation.” Id., at 6-7. Kaupp appealed, but the Court of Criminal Appeals of Texas denied discretionary review. App. B to Pet. for Cert. We grant the motion for leave to proceed informa pauperis, grant the petition for certiorari, and vacate the judgment below.

A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, “taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” Florida v. Bostick, 501 U. S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U. S. 567, 569 (1988)). This test is derived from Justice Stewart’s opinion in United States v. Mendenhall, 446 U. S. 544 (1980), see California v. Hodari D., 499 U. S. 621, 627-628 (1991), which gave several “[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave,” including “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, supra, at 554.

Although certain seizures may be justified on something less than probable cause, see, e. g., Terry v. Ohio, 392 U. S. 1 (1968), we have never “sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes ... absent probable cause or judicial authorization.” Hayes v. Florida, 470 U. S. 811, 815 (1985); cf. Payton v. New York, 445 U. S. 573, 589-590 (1980); compare Florida v. Royer, 460 U. S. 491, 499 (1983) (plurality opinion) (“[The police] may [not] seek to verify [mere] suspicions by means that approach the conditions of arrest”), with United States v. Sokolow, 490 U. S. 1, 7 (1989) (“[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause” (quoting Terry, supra, at 30)). Such involuntary transport to a police station for questioning is “sufficiently like arres[t] to invoke the traditional rule that arrests may constitutionally be made only on probable cause.” Hayes, supra, at 816.

The State does not claim to have had probable cause here, and a straightforward application of the test just mentioned shows beyond cavil that Kaupp was arrested within the meaning of the Fourth Amendment, there being evidence of every one of the probative circumstances mentioned by Justice Stewart in Mendenhall. A 17-year-old boy was awakened in his bedroom at three in the morning by at least three police officers, one of whom stated “‘we need to go and talk.’” He was taken out in handcuffs, without shoes, dressed only in his underwear in January, placed in a patrol car, driven to the scene of a crime and then to the sheriff’s offices, where he was taken into an interrogation room and questioned. This evidence points to arrest even more starkly than the facts in Dunaway v. New York, 442 U. S. 200, 212 (1979), where the petitioner “was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room.” There we held it clear that the detention was “in important respects indistinguishable from a traditional arrest” and therefore required probable cause or judicial authorization to be legal. Ibid. The same is, if anything, even clearer here.

Contrary reasons mentioned by the state courts are no answer to the facts. Kaupp’s “ ‘Okay’ ” in response to Pin-kins’s statement is no showing of consent under the circumstances. Pinkins offered Kaupp no choice, and a group of police officers rousing an adolescent out of bed in the middle of the night with the words “ ‘we need to go and talk’ ” presents no option but “to go.” There is no reason to think Kaupp’s answer was anything more than “a mere submission to a claim of lawful authority.” Royer, supra, at 497 (plurality opinion); see also Schneckloth v. Bustamante, 412 U. S. 218, 226, 233-234 (1973). If reasonable doubt were possible on this point, the ensuing events would resolve it: removal from one’s house in handcuffs on a January night with nothing on but underwear for a trip to a crime scene on the way to an interview room at law enforcement headquarters. Even “an initially consensual encounter . . . can be transformed into a seizure or detention within the meaning of the Fourth Amendment.” INS v. Delgado, 466 U. S. 210, 215 (1984); see Hayes, supra, at 815-816 (“[A]t some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect’s freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments”). It cannot seriously be suggested that when the detectives began to question Kaupp, a reasonable person in his situation would have thought he was sitting in the interview room as a matter of choice, free to change his mind and go home to bed.

Nor is it significant, as the state court thought, that the sheriff’s department “routinely” transported individuals, including Kaupp on one prior occasion, while handcuffed for safety of the officers, or that Kaupp “did not resist the use of handcuffs or act in a manner consistent with anything other than full cooperation.” App. A to Pet. for Cert. 6. The test is an objective one, see, e. g., Chesternut, 486 U. S., at 574, and stressing the officers’ motivation of self-protection does not speak to how their actions would reasonably be understood. As for the lack of resistance, failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer.

Since Kaupp was arrested before he was questioned, and because the State does not even claim that the sheriff’s department had probable cause to detain him at that point, well-established precedent requires suppression of the confession unless that confession was “an act of free will [sufficient] to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 371 U. S. 471, 486 (1963). Demonstrating such purgation is, of course, a function of circumstantial evidence, with the burden of persuasion on the State. See Brown, 422 U. S., at 604. Relevant considerations include observance of Miranda, “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” 422 U. S., at 603-604 (footnotes and citation omitted).

The record before us shows that only one of these considerations, the giving of Miranda warnings, supports the State, and we held in Brown that “Miranda warnings, alone and -per se, cannot always ... break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.” 422 U. S., at 603 (emphasis in original); see also Taylor v. Alabama, 457 U. S. 687, 699 (1982) (O’Connor, J., dissenting) (noting that, although Miranda warnings are an important factor, “they are, standing alone, insufficient”). All other factors point the opposite way. There is no indication from the record that any substantial time passed between Kaupp’s removal from his home in handcuffs and his confession after only 10 or 15 minutes of interrogation. In the interim, he remained in his partially clothed state in the physical custody of a number of officers, some of whom, at least, were conscious that they lacked probable cause to arrest. See Brown, supra, at 604-605. In fact, the State has not even alleged “any meaningful intervening event” between the illegal arrest and Kaupp’s confession. Taylor, supra, at 691. Unless, on remand, the State can point to testimony undisclosed on the record before us, and weighty enough to carry the State’s burden despite the clear force of the evidence shown here, the confession must be suppressed.

The judgment of the State Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       The detectives applied to the district attorney’s office for a “pocket warrant,” which they described as authority to take Kaupp into custody for questioning. App. 3 to App. D to Pet. for Cert. 6 (trial transcript). The detectives did not seek a conventional arrest warrant, as they did not believe they had probable cause for Kaupp’s arrest. See ibid. As the trial court later explained, the detectives had no evidence or motive to corroborate the brother’s allegations of Kaupp’s involvement, see App. C to Pet. for Cert. 2; the brother had previously failed three polygraph examinations, while, only two days earlier, Kaupp had voluntarily taken and passed one, in which he denied his involvement, see id., at 1-2.

       We have, however, left open the possibility that, “under circumscribed procedures,” a court might validly authorize a seizure on less than probable cause when the object is fingerprinting. Hayes, 470 U. S., at 817.

       On the record before us, it is possible to debate whether the law enforcement officers were armed. The State Court of Appeals not only described them as armed but said specifically that PinWns’s weapon was visible, though not drawn, when he confronted Kaupp in the bedroom. See App. A to Pet. for Cert. 6. But at least one officer testified before the trial court that they went to Kaupp’s house unarmed. See App. 3 to App. D to Pet. for Cert. 8 (trial transcript).