source: Caselaw Access Project

author: Justice Scalia Justice Blackmun, Justice Powell,

license: Public Domain

text:
    LUKHARD, COMMISSIONER, VIRGINIA DEPARTMENT OF SOCIAL SERVICES v. REED et al.
    No. 85-1358.
    Argued January 14, 1987
    Decided April 22, 1987

      Scalia, J., announced the judgment of the Court and delivered an opinion in which Rehnquist, C. J., and White and Stevens, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 383. Powell, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and O’CONNOR, JJ., joined, post, p. 384.

      Thomas J. Czelusta, Assistant Attorney General of Virginia, argued the cause for petitioner. With him on the briefs were Mary Sue Terry, Attorney General, R. Claire Guthrie, Deputy Attorney General, and John A. Rupp, Senior Assistant Attorney General.

      Glen D. Nager argued the cause pro hac vice for the Secretary of Health and Human Services, as respondent under this Court’s Rule 19.6, in support of petitioner. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, and Marleigh D. Dover.

      Jill A. Hanken argued the cause for respondents. With her on the brief were Martin Wegbreit and Claire Curry

      A brief of amici curiae urging reversal was filed for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Roma Jones Stewart, Solicitor General, James C. O’Connell, Steven V. Hogroian, and Owen M. Field, Special Assistant Attorneys General, Linley E. Pearson, Attorney General of Indiana, Charles G. Brown, Attorney General of West Virginia, Silas B. Taylor, Deputy Attorney General, Mary Beth Kershner, Assistant Attorney General, Michael J. Bowers, Attorney General of Georgia, William C. Joy, Senior Assistant Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, Cathy J. Rosenthal, Assistant Attorney General, T. Travis Medlock, Attorney General of South Carolina, Brian McKay, Attorney General of Nevada, LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Allen C. Warshaw, Deputy Attorney General.
      Briefs of amici curiae urging affirmance were filed for Legal Services of North Carolina by David H. Harris, Jr., Susan M. Perry, and Richard M. Taylor, Jr.; and for Jeannette Rochford by Robert Mann.

   Justice Scalia

announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice Stevens join.

In this case, the United States Court of Appeals for the Fourth Circuit held that a state social-services agency could not lawfully treat personal injury awards as income when determining the eligibility of families seeking Aid to Families with Dependent Children (AFDC) benefits. Reed v. Health & Human Services, 774 F. 2d 1270 (1985). The United States Court of Appeals for the Seventh Circuit has reached the opposite conclusion. Watkins v. Blinzinger, 789 F. 2d 474 (1986). We granted certiorari to resolve the conflict. 477 U. S. 903 (1986).

I

Under the AFDC program, participating States that provide financial assistance to families with needy, dependent children are partially reimbursed by the Federal Government. 49 Stat. 627, as amended, 42 U. S. C. §§601-615 (1982 ed. and Supp. III). Although the States are largely free to determine the appropriate standard of need and the level of assistance, they must administer their assistance plans in conformity with applicable federal statutes and with regulations promulgated by the United States Department of Health and Human Services (HHS). Those statutes require States to consider a family’s “income and resources” when determining whether or not it is needy, 53 Stat. 1379, as amended, 42 U. S. C. §602(a)(7)(A) (1982 ed., Supp. Ill), and prohibit them from providing AFDC benefits for any month in which either income or resources exceed state-prescribed limits (subject to a federal ceiling), 95 Stat. 844, as amended, 42 U. S. C. §§ 602(a)(7)(B), 602(a)(17), 602(a)(18) (1982 ed., Supp. III).

Because income eligibility and resource eligibility are separately computed (and also because state limits for the two generally differ), whether and for how long a family that acquires a sum of money is rendered ineligible for AFDC benefits may depend on whether the sum is classified as income or as a resource. Prior to 1981, however, the importance of the classification was minimized by an HHS requirement that States treat any income received in a given month as a resource in following months. Thus, a family that received an amount of income that exceeded the State’s income limit would be automatically ineligible for one month; whether or not it remained ineligible in subsequent months would depend on whether the amount of that income that had not yet been spent, combined with the value of the family’s other resources, exceeded the State’s resource limit. The Secretary of HHS became concerned that AFDC recipients who acquired a large amount of income had an incentive to spend it as rapidly as possible, in order to regain eligibility by reducing their resources to a level beneath the State’s resource limit. To solve this problem, the Secretary proposed and Congress passed an amendment to the AFDC statute. Under that amendment, AFDC recipients who receive an amount of income that exceeds the State’s standard of need are rendered ineligible for as many months as that income would last if the recipients spent an amount equal to the State’s standard of need each month. Section 2304 of the Omnibus Budget Reconciliation Act of 1981 (OBRA), 95 Stat. 845, as amended, 42 U. S. C. §602(a)(17) (1982 ed., Supp. III).

Because the OBRA amendment applies by its terms only to income, the distinction between income and resources took on new importance. If a given sum of money were treated as a resource, the family that received the sum would be ineligible only until it spent enough of the sum to bring its resources down to the State’s resource limit; but if the sum were treated as income, no matter how much was spent, the family would remain ineligible for the statutory period. In response to the OBRA amendment, the Virginia Department of Social Services (the agency responsible for administering Virginia’s AFDC program) revised its regulations to treat various lump-sum payments, including personal injury awards, as income rather than as resources. Virginia Department of Social Services, ADC Manual (Va. ADC Manual) §305.4C (Jan. 1983), App. to Pet. for Cert. 71. It did not, however, alter its policy of treating the proceeds of the sale or conversion of real or personal property — including property damage awards — as resources. §303.3, App. 25.

Respondents, who had received personal injury awards and were disqualified from Virginia’s AFDC program for varying periods pursuant to Virginia’s revised regulations, filed a class action against the Secretary and petitioner Lukhard, the Commissioner of the Virginia Department of Social Services, in the United States District Court for the District of Western Virginia. They alleged that treating personal injury awards as income was inconsistent with the federal AFDC statute, and they sought monetary, injunc-tive, and declaratory relief under Rev. Stat. §1979, as amended, 42 U. S. C. §1983, 5 U. S. C. §§701-706, and 28 U. S. C. §§2201-2202. After certifying a class of those whose AFDC benefits had been or would be decreased as a result of Virginia’s revised regulations, the District Court granted summary judgment in the class’ favor. It held that the common meaning of the term “income” precluded application of that term to personal injury awards, and that it was irrational for Virginia to treat personal injury awards as income but at the same time treat awards for property loss as resources. The District Court therefore issued an injunction forbidding Lukhard to apply the revised regulations to recipients of personal injury awards, ordering him to begin paying AFDC benefits to the named plaintiffs and other class members who would presently have been receiving them but for application of the revised regulations, and requiring him to notify AFDC recipients who had been deprived of past AFDC benefits as a result of the revised regulations. The court declined, however, to order Lukhard to pay retroactive AFDC benefits, and stayed the injunction pending appeal except insofar as it required Lukhard to begin paying AFDC benefits to the named plaintiffs. Lukhard and the Secretary appealed and the respondents cross-appealed. After the Court of Appeals for the Fourth Circuit affirmed the judgment in all respects, Reed v. Health & Human Services, 774 F. 2d 1270 (1985), Lukhard filed this petition. The Secretary did not file a separate petition but supported Lukhard’s petition and supports Lukhard’s position on the merits.

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Respondents principal contention is that Virginia’s revised regulations are inconsistent with the meaning of “income” and “resources” as those terms are used in the AFDC statute. To support this argument they first advance the broader proposition that it does violence to common usage to interpret “income” to include personal injury awards. This argument begins from the premise that since personal injury awards are purely compensatory, they do not result in any gain to their recipients. And since both general and legal sources define “income” as involving gain, see, e. g., Webster’s Third New International Dictionary 1143 (1976) (“a gain or recurrent benefit that is usu. measured in money . . .”); 42 C. J. S., Income, p. 531 (1944) (“In common speech ‘income’ generally is understood as gain or profit. . .” (footnote omitted)); Eisner v. Macomber, 252 U. S. 189, 207 (1920) (“‘Income may be defined as the gain derived from capital, from labor, or from both combined/ provided it be understood to include profit gained through a sale or conversion of capital assets ...” (quoting Stratton’s Independence, Ltd. v. Howbert, 231 U. S. 399, 415 (1913); Doyle v. Mitchell Brothers Co., 247 U. S. 179, 185 (1918))), respondents conclude that personal injury awards cannot fairly be characterized as income. But the premise that personal injury awards cannot involve gain is obviously false, since they often are intended in significant part to compensate for the loss of gain, e. g., lost wages. See Watkins v. Blinzinger, 789 F. 2d, at 476. Since the gain would have been income, surely at least that part of a personal injury award that replaces it must also be income. More importantly, however, as Lukhard and the Secretary point out, general and legal sources also commonly define “income” to mean “any money that comes in,” without regard to any related expenses incurred and without any requirement that the transactions producing the money result in a net gain. See, e. g., 5 Oxford English Dictionary 162 (1933) (“That which comes in. . . (considered in reference to its amount, and commonly expressed in money); ... receipts . . .”); 42 C. J. S., Income, p. 529 (1944) (“Generally or ordinarily the term means all that comes in; . . . something which is paid over and delivered to the recipient;. . . without reference to the outgoing expenditures ...” (footnotes omitted)); Heckler v. Turner, 470 U. S. 184 (1985) (“income” under the AFDC statute means gross income, without reference to expenses reasonably attributable to its earning). Heckler is particularly significant, since there we indicated that the part of an employee’s salary that is allocated to work-related expenses — clearly not a gain in the sense that term is used by respondents —is properly treated as “income” under the AFDC statute. Id., at 202. Although that con-elusion was based in part on a provision not involved in this case, it demonstrates that the AFDC statute itself contradicts the theory that payments that do not constitute gain (as respondents use the term) to their recipients cannot reasonably be described as “income.” Thus, contrary to respondents’ assertion, Virginia’s revised regulations are consistent with a perfectly natural use of “income.”

Respondents also seek to derive support from the fact that personal injury awards are not treated as income under the Internal Revenue Code, the Food Stamp program, or the HHS poverty guidelines. See 26 U. S. C. § 104(a); 91 Stat. 962, 7 U. S. C. § 2014(d)(8); 48 Fed. Reg. 7010, 7011 (1983). But in each of these instances there is an express provision that personal injury awards are not to be treated as income— which causes them not only to fail to support the proposition that the term “income” automatically excludes personal injury awards, but to support the opposite proposition that absent express exclusion it embraces them. Moreover, the fact that Congress was silent in the AFDC statute but has elsewhere been explicit when it wished to exclude personal injury awards from income tends to refute rather than support a legislative intent to exclude them from AFDC computations. Cf. Russello v. United States, 464 U. S. 16, 23 (1983). Nor is there any merit to respondents’ slightly different argument that since the relevant provisions of the Food Stamp program, the HHS poverty guidelines, and the AFDC statute have the common goal of defining who is needy, they should be presumed to have a common definition of “income” — one that necessarily excludes personal injury awards. The explicit differences between the definition of “income” in the Food Stamp program and the HHS poverty guidelines on the one hand and the AFDC statute on the other are simply too great to permit any such presumption. Compare 91 Stat. 962, 7 U. S. C. § 2014(d)(8) (Food Stamp program excludes all nonrecurring lump-sum payments, including retroactive lump-sum Social Security benefits), and 48 Fed. Reg. 7010, 7011 (1983) (HHS poverty guidelines exclude capital gains, gifts, and lump-sum inheritances), with Brief for Respondents 47 (conceding that retroactive Social Security benefits and other lump-sum payments that represent a true gain are income under the AFDC statute).

Respondents’ next contention is that Virginia’s treatment of personal injury awards is inconsistent with the administrative and legislative history of the AFDC statute. They first argue that for many years, and at least until 1981, HHS in fact took the position that personal injury awards were not “income” under the AFDC statute. But the materials upon which respondents rely do not support this contention, and indicate at most that HHS took no position on the question. See HHS Handbook of Public Assistance Administration, Part IV, S-3120, Supplement for Administrative Use (Sept. 6, 1957), App. 58 (retroactive Social Security payments are income, but an award to compensate for the loss of a hand or foot might not be); HHS Memorandum of June 7, 1973, App. 55-56 (retroactive Social Security payments are income); Brief for United States as Amicus Curiae in Lockhart v. Harden, No. C74-390A (ND Ga.), App. 61 (HHS regulations require that retroactive Social Security payments be treated as income but do not require that awards for damages be so treated). In fact, as Lukhard and the Secretary point out, there is evidence that HHS has for many years interpreted the AFDC statute to at least 'permit States to treat personal injury awards as income. See, e. g., 51 Fed. Reg. 9191, 9196 (1986) (“[U]nder longstanding federal policy . . . , a State agency has had the option to treat [e. g., personal injury awards] as resources instead of as income”); HHS Letter of October 17, 1983, App. 66 (“Based on longstanding precedent, States have historically had the option to consider nonrecurring lump-sum payments as either unearned income or resources. With the implementation of [the OBRA amendment], States continued to exercise this latitude”); HHS Memorandum of July 6, 1983, App. 47 (under current HHS policy, States are free to treat insurance settlements either as income or as resources; California apparently treats them as income); HHS Letter of April 8, 1982, App. 62-63 (States are free to treat damage claim settlements as income or as resources). See also Brief for State of Illinois et al. as Amici Curiae 5 (HHS has permitted States to treat personal injury awards as income under the OBRA amendment). Thus, the Secretary’s interpretation of the AFDC statute— which is entitled to deference, see, e. g., Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 126 (1986) — actually undermines rather than supports respondents’ claim that Virginia cannot lawfully treat personal injury awards as income.

Respondents also make two arguments based upon the legislative history of the 1981 OBRA amendment. First, they argue that the Congress that passed the OBRA amendment must have been aware of HHS’ longstanding position that “income” excluded personal injury awards, and that its use of “income” in the OBRA amendment therefore necessarily indicated an intent that the term be interpreted in that manner. It is of course not true that whenever Congress enacts legislation using a word that has a given administrative interpretation it means to freeze that administrative interpretation in place. See Helvering v. Wilshire Oil Co., 308 U. S. 90, 100-101 (1939). But if that were the case here, it would damage rather than aid respondents’ cause, since, as we have seen, HHS’ position at the time of the OBRA amendment was that it was permissible for States to treat personal injury awards as income.

At oral argument, respondents sought to derive support from a legislative hearing conducted while the OBRA amendment was under consideration, in which the Secretary submitted to the House Ways and Means Committee a document estimating that the amendment would eliminate 5,000 families from the AFDC rolls each year. Hearings on Tax Aspects of the President’s Economic Program before the House Committee on Ways and Means, 97th Cong., 1st Sess., pt. 1, pp. 266-266 (1981), App. 75-76. The record suggests that Virginia has been terminating over 400 families each year under the revised regulations it promulgated to implement the OBRA amendment. Since Virginia has only 1.6% of the national AFDC caseload, respondents argue, it should only be terminating 80 families each year according to the Secretary’s estimate. But even granting the accuracy of respondents’ numerical analysis —which petitioner and the Secretary have had no opportunity to contest — and ignoring the dubious authority of an unexplained forecast made during a committee hearing, the disparity respondents note does not provide the faintest support for an inference that the Congress which passed the OBRA amendment understood the AFDC statute to exclude personal injury awards from income. The record indicates that only about one-third of the families removed from the rolls in Virginia were removed as a result of personal injury awards; since the number of remaining terminations still far exceeds the Secretary’s forecast (about 270 instead of 80), the disparity certainly is not explicable by Virginia’s decision to treat personal injury awards as income. One is left with the suspicion that the error was in the Secretary’s forecast. Nothing respondents have identified in the legislative history of the OBRA amendment supports the conclusion that Virginia’s revised regulations are unlawful.

Respondents’ penultimate argument is that logic requires personal injury awards to be treated as resources rather than income. The argument rests upon the following syllogism: (1) healthy bodies are resources; (2) personal injury awards merely compensate for damage to healthy bodies; and therefore (3) personal injury awards necessarily are resources too. We have already noted that the minor premise of this syllogism is false, see supra, at 375-376. More importantly, however, so is the major premise. Although there is a sense in which a healthy body can be said to be a resource, it certainly is not one within the meaning of the AFDC statute and regulations, which count only real and personal property (including liquid assets). See 95 Stat. 844, as amended, 42 U. S. C. § 602(a)(7)(B) (1982 ed., Supp. III); 45 CFR §§ 233.20(a)(3)(i)(B), (ii)(E) (1986). Since healthy bodies are worth far more than the statute’s $1,000 family resource limit, 42 U. S. C. § 602(a)(7)(B), acceptance of respondents’ major premise would render every family ineligible for AFDC benefits. The fact that the AFDC statute and its implementing regulations consider only real and personal property in determining families’ resources permits (if it does not indeed require) the conclusion that personal injury awards are compensation for diminution of well-being of a kind not covered by the AFDC statute, except to the extent they compensate for lost wages (to which extent they clearly are gain, see supra, at 375) or for economic expenses caused by the injury (to which extent Virginia permits them to be in large part offset, see n. 1, supra). Thus, personal injury awards are almost entirely a gain in well-being, as well-being is measured under the AFDC statute, and can reasonably be treated as income even on respondents’ definition of the term.

Once this is understood, it is clear that Virginia’s policy of treating personal injury awards as income but property damages awards as resources is also reasonable. The former can be viewed as increasing their recipients’ pecuniary well-being, and the latter as merely restoring resources to previous levels. The existence of this distinction, coupled with the substantial deference owed to the Secretary’s conclusion that Virginia’s revised regulations are consistent with HHS’ regulations, see, e. g., Lyng v. Payne, 476 U. S. 926, 939 (1986), leads us to reject respondents’ argument that the difference in treatment violates HHS’ regulation requiring that “eligibility conditions imposed must not exclude individuals or groups on an arbitrary or unreasonable basis, and must not result in inequitable treatment of individuals or groups_” 45 CFR § 233.10(a)(1) (1986).

It is of course true that, by considering only real and personal property as the measure of well-being, the AFDC program evaluates need in a way that does not reflect the fullness of life. That portion of a personal injury award which constitutes compensation for loss of earnings will not result in a loss of eligibility, since it merely replaces future income that would otherwise have been earned; but the portion attributable to pain and suffering replaces no other economic income, and will reduce AFDC payments. It can reasonably be urged that a family with monthly pain-and-suffering-award income but with a family member in physical and emotional pain is not better off than the family without that additional income but also without that suffering. Physical and emotional well-being, however, is not what the AFDC statute is designed to take into account — as is evident from the fact that there is no argument for increasing AFDC payments above the normal income limit where pain and suffering exists without a tortfeasor who is compensating it. Compensating for the noneconomic inequities of life is a task daunting in its complexity, and the AFDC statute is neither designed nor interpreted unreasonably if it leaves them untouched.

Finally, we do not agree with the dissent’s contention that our holding “‘override[s] the States’ traditional power to define the measure of damages applicable to state-created causes of action.’” Post, at 389 (quoting Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490, 500, n. 3 (1980) (Blackmun, J., dissenting)). That could not possibly be so, since in this case Virginia wants to treat the proceeds of personal injury awards as income. It is a peculiar solicitude for States’ prerogatives that would prevent Virginia from striking its own balance between directing limited AFDC funds to the least wealthy and compensating tort victims. It is true that the Secretary has now promulgated a regulation requiring States to treat personal injury awards as income under the AFDC statute. See n. 5, supra. But since this is not a case in which a State challenges that regulation, the dissent’s objection is simply irrelevant.

Ill

Respondents have not demonstrated that Virginia’s policy of treating personal injury awards as income is inconsistent with the AFDC statute or HHS’ regulations. The contrary judgment of the Court of Appeals is

Reversed.

Justice Blackmun,

concurring in the judgment.

I join the judgment of the Court but not the opinion of the plurality, for I would base my vote to reverse not on an endorsement of the original Virginia interpretation but, flatly, on the deference that is due the Secretary of Health and Human Services in his interpretation of the governing statutes. In a statutory area as complicated as this one, the administrative authorities are far more able than this Court to determine congressional intent in the light of experience in the field. If the result is unacceptable to Congress, it has only to clarify the situation with language that unambiguously specifies its intent.

Justice Powell,

with whom Justice Brennan, Justice Marshall, and Justice O’Connor join, dissenting.

Today the Court holds that personal injury awards may be treated as income for the purpose of determining whether a family is eligible for Aid to Families with Dependent Children (AFDC). Because such treatment is inconsistent with the compensatory nature of personal injury awards, and may work a substantial hardship on needy families that Congress intended to assist through the AFDC program, I dissent.

HH

Congress established the AFDC program, 42 U. S. C. §§601-615 (1982 ed. and Supp. Ill), to assist needy children and those who care for them. Shea v. Vialpando, 416 U. S. 251, 253 (1974). The AFDC statute provides that a family is eligible for AFDC benefits if its income and resources are not sufficient to maintain it at a subsistence level established by the State. The statute does not define either “income” or “resources.” Prior to 1981, excess income received in one month was counted as a resource in succeeding months. The Secretary of Health and Human Services (HHS) concluded that needy families receiving lump sums of nonrecurring income might spend the money as rapidly as possible to reduce their resources and regain eligibility for AFDC benefits. In 1981, Congress responded to the Secretary’s concern by amending the statute to provide that a family receiving excess income in one month is ineligible for AFDC benefits for the number of months that the excess income would support the family at a subsistence level. Omnibus Budget Reconciliation Act of 1981, 95 Stat. 845, 42 U. S. C. §602(a)(17) (1982 ed., Supp. III). Although the 1981 amendments changed the treatment of excess income, “neither the language of [the amendment] nor its legislative history indicates that Congress intended to change the meaning of ‘income’ in 1981.” Brief for Secretary of HHS 15. Accordingly, the Secretary advised the States to adhere to their existing definitions of income. 47 Fed. Reg. 5648, 5656 (1982).

Virginia responded to the 1981 amendments by promulgating a rule that payments for personal injuries must be counted as income in determining eligibility for AFDC benefits. Virginia Department of Social Services, ADC Manual (Va. ADC Manual) §305.4C (Jan. 1983), App. to Pet. for Cert. 71. Under the Virginia regulation at issue in this case, medical and legal expenses incurred prior to or within 30 days after the receipt of the award were not counted in income. The remainder of the personal injury award, “representing pain and suffering, loss of earning capacity, future medical expenses, and punitive damages,” was included in income. Brief for Petitioner 5, n. 5. The named respondents, who had been entitled to AFDC benefits ranging from $181 to $255 per month, received personal injury or worker’s compensation awards of between $700 and about $10,250. App. 13-19; Brief for Respondents 3-5. As a result, the Virginia Department of Social Services ruled them ineligible for AFDC benefits for periods of from 2 months to 27 months. The respondents spent the awards primarily on basic living expenses, repayment of debts, and items such as used automobiles and appliances. App. 13-19. In each case, the families exhausted the modest awards long before they regained eligibility for AFDC benefits.

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The AFDC statute, as noted above, does not define “income.” “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979). The plurality recognizes that income commonly is defined as “ ‘ “the gain derived from capital, from labor, or from both combined,” provided it be understood to include profit gained through a sale or conversion of capital assets Ante, at 375 (quoting Eisner v. Macomber, 252 U. S. 189, 207 (1920) (quoting Stratton’s Independence, Ltd. v. Howbert, 231 U. S. 399, 415 (1913); Doyle v. Mitchell Brothers Co., 247 U. S. 179, 185 (1918))). In light of Macomber, which held that stock dividends are not taxable income, the Solicitor of Internal Revenue concluded:

“If an individual is possessed of a personal right that is not assignable and not susceptible of any appraisal in relation to market values, and thereafter receives either damages or payment in compromise for an invasion of that right, it can not be held that he thereby derives any gain or profit. It is clear, therefore, that the Government can not tax him on any portion of the sum received.” 1-1 Cum. Bull. 93 (1922).

In a later tax case, the Court defined income as “accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 431 (1955). In Glenshaw Glass, the Court observed that “[d]amages for personal injury are by definition compensatory only,” id., at 432, n. 8, and cited “[t]he long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital. . . ,” ibid, (citing 2 Cum. Bull. 71 (1920); 1-1 Cum. Bull. 92, 93 (1922); VII-2 Cum. Bull. 123 (1928); 1954-1 Cum. Bull. 179, 180).

Congress continues to exclude personal injury awards from income under the Internal Revenue Code. 26 U. S. C. § 104(a). Congress also excludes personal injury awards from income for the purpose of determining eligibility for food stamps, 7 U. S. C. § 2014(d)(8), and under the HHS poverty guidelines, 48 Fed. Reg. 7010, 7010-7011 (1983). Indeed, the plurality does not cite a single statute in which Congress has defined income to include personal injury awards, and I am aware of none.

The plurality nevertheless concludes that Virginia reasonably interpreted the AFDC statute to include personal injury awards in income, even if such awards do not result in any gain to the recipient. Ante, at 375-376. The plurality observes that the Internal Revenue Code, the Food Stamp statute, and the HHS poverty guidelines expressly exclude personal injury awards from income. In the plurality’s view, “the fact that Congress was silent in the AFDC statute but has elsewhere been explicit when it wished to exclude personal injury awards from income tends to refute rather than support a legislative intent to exclude them from AFDC computations.” Ante, at 376 (citation omitted; footnote omitted). This inference from congressional silence is unwarranted. Congress made a considered decision to exclude personal injury awards from income for purposes of the Internal Revenue Code and the Food Stamp statute. In contrast, as the Court of Appeals for the Seventh Circuit observed, “The inescapable fact is that Congress wanted to compel recipients of AFDC to budget lump-sum receipts of ‘income’ but did not consider what ‘income’ might be.” Watkins v. Blinzinger, 789 F. 2d 474, 480 (1986).

The fact that Congress did not define income for purposes of the AFDC statute hardly justifies an assumption that it considered the narrower question whether personal injury awards should be included in income. On the contrary, if Congress had considered the question, it is reasonable to believe that it would have treated personal injury awards as it has in a variety of other circumstances and excluded them from income. Finally, as discussed below, the effect of including personal injury awards in income is to deprive AFDC families of the benefits of tort and worker’s compensation remedies, most of which are provided by state law. I would not infer from the silence of Congress a “purpose to override the States’ traditional power to define the measure of damages applicable to state-created causes of action.” Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490, 500, n. 3 (1980) (Blackmun, J., dissenting).

The plurality also concludes that personal injury awards “can reasonably be treated as gain.” Ante, at 374-375, and n. 2. To be sure, some components of personal injury awards do result in gain to the plaintiff. Punitive damages, in the exceptional case in which they are awarded, are a windfall to the plaintiff rather than compensation. See Commissioner v. Glenshaw Glass Co., supra (punitive damages are taxable income). As a practical matter, an impoverished family is unlikely to receive a large award for lost income. If it does, however, it is reasonable to treat such an award as income. See ante, at 375. I cannot agree, however, that it is reasonable to treat the entire personal injury award as income. Damages for pain and suffering, physical injury, disfigurement, loss of consortium, and the like are intended to compensate the recipient for nonpeeuniary losses. In other contexts, Congress excludes the full amount of personal injury awards from income, to avoid the necessity for “a complex and administratively burdensome system” or to “confer a humanitarian benefit on the victim or victims of the tort.” Norfolk & Western R. Co. v. Liepelt, supra, at 501 (Blackmun, J., dissenting).

The plurality recognizes the elementary fact that “a family with monthly pain-and-suffering-award income but with a family member in physical and emotional pain is not better off than the family without that additional income but also without that suffering.” Ante, at 382 (emphasis in original). The plurality nevertheless concludes that the AFDC program is not designed to take into account physical and emotional well-being. But tort law and workers’ compensation statutes are designed to take these into account. The AFDC statute surely is not designed to deprive impoverished families of remedies for personal injury, most of which are provided by state law. To be sure, “there is no argument for increasing AFDC payments above the normal limit where pain and suffering exists without a tortfeasor who is compensating it.” Ibid, (emphasis in original). By the same token, there is no argument for decreasing AFDC payments for families who are free of pain and suffering.

During the period at issue in this case, the Virginia Department of Social Services also included in income moneys intended for continuing medical and rehabilitative expenses. See Brief for Petitioner 5, n. 5. Thus, the Virginia regulation put impoverished families to a hard choice between obtaining medical care and providing for the basic needs of their children. One of the named respondents, Ona Mae Reed, actually faced this choice: She could not afford to see a physician while her family was ineligible for AFDC benefits. App. 15. I cannot accept the Court’s conclusion that Congress intended to permit such a harsh result.

Ill

It is beyond dispute that “[Compensating for the noneco-nomic inequities of life is a task daunting in its complexity . . . .” Ante, at 382-383. As I view this case, however, the issue presented is relatively straightforward. Our legal system compensates individuals for personal injuries by awarding damages in tort actions and workers’ compensation proceedings. In a variety of circumstances, Congress has recognized that injured persons and their families should be permitted to retain the full amount of these awards, awards that for the most part are compensatory in nature. It is unjust, and inconsistent with the basic purposes of the AFDC statute, to deny needy families the compensation our legal system affords to the rest of society. Accordingly, I dissent.

       The revised regulations also permitted recipients to deduct from such a payment any directly related expenses that were incurred prior to or within 30 days after receipt of the payment. Va. ADC Manual § 305.4C (Jan. 1983), App. to Pet. for Cert. 72. During the pendency of this law1 suit, Congress amended the OBRA amendment to give States the option of reducing the period of ineligibility otherwise mandated so as to take into account various expenditures related to the lump-sum payment. Section 2632(a) of the Deficit Reduction Act of 1984, 98 Stat. 1141, 42 U. S. C. § 602(a)(17) (1982 ed., Supp. III). Virginia has since availed itself of this option. Va. ADC Manual § 305.4C (Oct. 1984), App. to Pet. for Cert. 83-86.

       Moreover, as we discuss below, see infra, at 380-383, other typical components of personal injury awards, including compensation for pain and suffering, can reasonably be treated as gain under the AFDC statute.

       The dissent apparently thinks it appropriate to speculate upon what Congress would have said if it had spoken. Post, at 389 (“[I]f Congress had considered the question, it is reasonable to believe that it would have . . . excluded [personal injury awards] from income”). As we demonstrate below, it also is reasonable to believe that Congress would have included personal injury awards in income. More importantly, however, the legality of Virginia’s policy must be measured against the AFDC statute Congress passed, not against the hypothetical statute it is most “reasonable to believe” Congress would have passed had it considered the question of personal injury awards. For the purpose of determining the application of an existing agency-interpreted statute to a point on which “Congress did not actually have an intent,” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 845 (1984), we have held that “a court may not substitute its own construction... for a reasonable interpretation made by the administrator of an agency.” Id., at 844. As we note below, see infra this page and 378-379, Virginia’s policy is consistent with the Secretary’s interpretation.

       Respondents observe that none of the evidence relied upon by Luk-hard and the Secretary antedates the passage of the OBRA amendment. Although true, the observation is of dubious significance. Older documents demonstrating the existence of a longstanding interpretation would of course be better evidence than are recent documents asserting its existence. But in the absence of any contrary evidence, the latter form of evidence is certainly sufficient to support a conclusion that the interpretation existed. Similarly, although respondents observe that the record does not reveal whether any States actually availed themselves of the option allegedly given them prior to passage of the OBRA amendment, we see no reason to draw any inference at all from that lacuna.

       After this suit was filed, the Secretary proposed a rule requiring States to treat all lump-sum payments as income. 49 Fed. Reg. 46558, 45568 (1984). Such a rule has since been promulgated. 45 CFR § 233.20(a)(3)(ii)(F) (1986). Lukhard and the Secretary argue that the Secretary’s determination that this rule is consistent with the AFDC statute and the OBRA amendment is entitled to deference, while respondents argue that the rule was invalidly promulgated and is in any event due no deference. Since we uphold Virginia’s practice without reference to the new HHS regulation, we need not reach these questions.

       As has already been noted, since this suit was filed Virginia has altered its treatment of personal injury awards by adopting a regulation reducing the ineligibility period established by the OBRA amendment to take into account various expenditures related to the award and other equitable considerations. Va. ADC Manual §305.4C (Oct. 1984), App. to Pet. for Cert. 83-86. Moreover, the Secretary contends that a new regulation he has promulgated, 45 CFR § 233.20(a)(3)(ii)(F1) (1986), requires Virginia to treat property damages awards as income, thus rendering prospectively moot respondents’ claim that Virginia’s disparate treatment violates the HHS regulation. Respondents claim, however, that the new regulation is invalid because improperly promulgated, that it does not require Virginia to alter its treatment of property damages awards, and that even if it did it would not result in equal treatment of personal injury awards and property damages awards. We need not consider the consequences of these subsequent developments. The legality of the original disparity in treatment is still a live issue, since its resolution will determine whether respondents were entitled to the AFDC benefits they have received under the injunction issued by the District Court. And our conclusion that the original disparity was not unreasonable necessarily implies that the diminished disparity created by Virginia’s subsequently more lenient treatment of personal injury awards is not unreasonable.

       The AFDC statute provides that the States must exclude from resources the family home and one automobile worth up to $1,600. 42 U. S. C. § 602(a)(7)(B); 45 CFR § 233.20(a)(3)(i) (1986). The States also are required to disregard certain earnings of family members and relatives in determining income. 42 U. S. C. §§ 602(a)(8)(A), 602(a)(31). Congress provided no further guidance to the Secretary and the States in defining “income” and “resources.”

       Virginia subsequently modified its rule in response to a congressional amendment giving States the option of reducing the period of ineligibility to account for expenditures related to a lump-sum payment. Section 2632 of the Deficit Reduction Act of 1984, 98 Stat. 1141, 42 U. S. C. § 602(a)(17) (1982 ed., Supp. III). The State now provides that the period of ineligibility must be reduced to reflect future medical expenses. Va. ADC Manual §305.4C (Oct. 1984), App. to Pet. for Cert. 84.
      In addition, the Secretary recently promulgated a rule requiring the States to treat personal injury awards as income. 45 CFR §233.20 (a)(3)(ii)(F) (1986). The plurality declines to consider the Secretary’s new rule. Ante, at 379, n. 5. It nevertheless concludes that Virginia’s decision to treat personal injury awards as income during the period at issue in this case was in accord with the Secretary’s prior interpretation of the AFDC statute, and so is entitled to deference. Ante, at 378-379. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Prior to the passage of the 1981 amendments, however, the Secretary’s only comment on this subject was that “a settlement of industrial compensation as the result of loss of hand or foot might represent a ‘lump sum’ payment.” HHS Handbook of Public Assistance Administration, Part IV, S-3120, Supplement for Administrative Use (Sept. 6,1957), App. 58 (emphasis added). Moreover, as the plurality concedes, there is no evidence in the record that any State included personal injury awards in income prior to the 1981 amendments. Ante, at 378, n. 4. Based on this record, I conclude that the Secretary took no position on the treatment of personal injury awards prior to 1981.
      Justice Blackmun would defer to the Secretary’s interpretation of the statute. Because I conclude that the Secretary’s interpretation is inconsistent with the statute, I do not think it is entitled to the customary deference.

       The plurality concludes that “[t]he explicit differences between the definition of ‘income’ in the Food Stamp program and the HHS poverty guidelines on the one hand and the AFDC statute on the other are simply too great” to allow a presumption that they share a common definition of income. Ante, at 377. It is true that “income” is defined to exclude all nonrecurring lump-sum payments for purposes of the Food Stamp program, 7 U. S. C. § 2014(d)(8), and that the HHS poverty guidelines exclude capital gains, gifts, and lump-sum inheritances, 48 Fed. Reg. 7010, 7011 (1983). It also is undisputed that lump-sum payments representing a gain to the family, such as retroactive Social Security payments, must be included in income under the AFDC program. But the decision to include some lump-sum gains under the AFDC program that are excluded under other poverty programs does not indicate that Congress also intended to include payments that do not represent a gain, and that Congress has not included in income under any program.

       The plurality asserts that this objection is “simply irrelevant,” ante, at 383, because Virginia officials chose to treat personal injury awards as income. But Congress could not know in advance whether the treatment of personal injury awards would be left to the States. Indeed, as noted above, the Secretary now requires the States to include personal injury awards in income. See n. 2, supra. In my view, the possibility that AFDC families would be deprived of state tort remedies is sufficient to preclude inclusion of personal injury awards in income.

       In my view, Virginia’s treatment of personal injury awards was inconsistent with the Secretary’s “equitable treatment regulation,” which states that “the eligibility conditions imposed must not exclude individuals or groups on an arbitrary or unreasonable basis, and must not result in inequitable treatment.” 45 CFR § 233.10(a)(1) (1986). During the period at issue in this case, Virginia treated money received as a result of a property loss as a resource rather than income. Va. ADC Manual §303.3 (Jan. 1983), App. 25. Thus, if an AFDC family received compensation for a damaged automobile it could spend the money as it wished, but if it received compensation for an injury to a family member, it was obliged to use the money to meet basic needs. The plurality concludes that casualty awards do not increase their recipients’ well-being, since they “merely re-stor[e] resources to previous levels.” Ante, at 381. Because personal injury awards are designed to compensate individuals rather than to increase their level of well-being, I conclude that it is unreasonable to treat personal injuries less favorably than property losses. Virginia’s treatment of awards for property losses also demonstrates that it failed to adhere consistently to a definition of income as “any money that comes in.” See ante, at 375.

       During this period, Virginia excluded from income only those amounts of the award used for medical care, rehabilitation, and legal services incurred prior to or within 30 days after the receipt of the award. See supra, at 385; Va. ADC Manual § 305.4C (Jan. 1983), App. to Pet. for Cert. 72. Petitioner concedes that “the amount of a lump sum personal injury award subject to the rule is that portion representing pain and suffering, loss of earning capacity, future medical expenses, and punitive damages.” Brief for Petitioner 5, n. 5 (emphasis added). As noted above, n. 2, supra, Virginia has amended its rules to provide that the period of ineligibility must be reduced to reflect medical expenses incurred subsequent to receipt of the lump sum. Va. ADC Manual § 305.4C (Oct. 1984), App. to Pet. for Cert. 84.


author: Justice Scalia

text:
    HITCHCOCK v. DUGGER, FLORIDA DEPARTMENT OF CORRECTIONS
    No. 85-6756.
    Argued October 15, 1986
    Decided April 22, 1987
    Scalia, J., delivered the opinion for a unanimous Court.

      Craig S. Barnard argued the cause for petitioner. With him on the. briefs were Richard L. Jorandby and Richard H. Burr III.

      Sean Daly, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief were Jim Smith, Attorney General, and Richard Prospect, Assistant Attorney General.

        Ira Reiner, Harry B. Sondheim, John K. Van de Kamp, Attorney General of California, Michael C. Wellington, Supervising Deputy Attorney General, and Susan Lee Frierson, Deputy Attorney General, filed a brief for the State of California et al. as amici curiae urging affirmance.

   Justice Scalia

delivered the opinion of the Court.

We have held that in capital cases, “‘the sentenced” may not refuse to consider or “ ‘be precluded from considering’ ” any relevant mitigating evidence. Skipper v. South Carolina, 476 U. S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U. S. 104, 114 (1982)). See also Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion). Certiorari was granted in the present case to consider petitioner’s contention that he was sentenced to death under a Florida statute that operated in a manner inconsistent with this requirement. 476 U. S. 1168 (1986).

H

On July 31, 1976, 13-year-old Cynthia Driggers was strangled to death. At the time of the murder, both Cynthia and petitioner resided with Richard Hitchcock, who was Cynthia’s stepfather and petitioner’s brother. Petitioner initially confessed to the murder, stating that he had killed Cynthia after she threatened to tell her parents that she and petitioner had engaged in consensual sexual intercourse. At his trial for first-degree murder, however, petitioner recanted and testified that it was his brother Richard who murdered Cynthia, after finding out about the intercourse. The State contended that petitioner had sexually assaulted Cynthia and then murdered her to avoid discovery.

Petitioner was convicted of first-degree murder and sentenced to death. After unsuccessful appeals and state and federal collateral proceedings, he filed an application for a writ of habeas corpus in the United States District Court for the Middle District of Florida. He argued, among other things, that the advisory jury and sentencing judge had been precluded by law from considering certain evidence of mitigating circumstances that had been introduced, and that additional evidence of mitigating circumstances had been withheld by his counsel in the reasonable belief that it could not be considered under the Florida death penalty statute. The District Court denied petitioner’s application, without granting an evidentiary hearing. A panel of the Eleventh Circuit affirmed, 745 F. 2d 1332 (1984), and the Eleventh Circuit affirmed en banc, 770 F. 2d 1514 (1985). This petition followed.

II

Petitioner claims that the advisory jury and the sentencing judge were precluded by law from considering some of the evidence of mitigating circumstances before them. The Florida death penalty statute in effect at the time (which has since been amended in various respects) provided for separate postconviction proceedings to determine whether those convicted of capital felonies should be sentenced to death or to life imprisonment. Those proceedings were typically held before the trial jury, which heard evidence “as to any matter that the court deem[ed] relevant to sentence.” Fla. Stat. §921.141(1) (1975). After hearing that evidence, the jury was to render an advisory verdict by determining “(a) [wjhether sufficient aggravating circumstances exist as enumerated in [§921.141(5)]; (b) [w]hether sufficient mitigating circumstances exist as enumerated in [§921.141(6)], which outweigh the aggravating circumstances found to exist; and (c) [biased on these considerations, whether the defendant should be sentenced to life [imprisonment] or death.” §921.141(2). The trial court then was to weigh the aggravating and mitigating circumstances itself and enter a sentence of life imprisonment or death. If it imposed a sentence of death, it was required to set forth in writing its findings “(a) [t]hat sufficient aggravating circumstances exist as enumerated in [§921.141(5)], and (b) [t]hat there are insufficient mitigating circumstances, as enumerated in [§921.141(6)], to outweigh the aggravating circumstances.” §921.141(3).

Petitioner argues that, at the time he was sentenced, these provisions had been authoritatively interpreted by the Florida Supreme Court to prohibit the sentencing jury and judge from considering mitigating circumstances not specifically enumerated in the statute. See, e. g., Cooper v. State, 336 So. 2d 1133, 1139 (1976) (“The sole issue in a sentencing hearing under Section 921.141, Florida Statutes (1975), is to examine in each case the itemized aggravating and mitigating circumstances. Evidence concerning other matters have [sic] no place in that proceeding . . .”), cert. denied, 431 U. S. 925 (1977). Respondent contends that petitioner has misconstrued Cooper, pointing to the Florida Supreme Court’s subsequent decision in Songer v. State, 365 So. 2d 696 (1978) (per curiam), which expressed the view that Cooper had not prohibited sentencers from considering mitigating circumstances not enumerated in the statute. Because our examination of the sentencing proceedings actually conducted in this case convinces us that the sentencing judge assumed such a prohibition and instructed the jury accordingly, we need not reach the question whether that was in fact the requirement of Florida law. We do note, however, that other Florida judges conducting sentencing proceedings during roughly the same period believed that Florida law precluded consideration of nonstatutory mitigating circumstances. At least three death sentences have been overturned for this reason. See Songer v. Wainwright, 769 F. 2d 1488 (CA11 1985) (en banc) (per curiam), cert. pending, No. 85-567; Lucas v. State, 490 So. 2d 943, 946 (Fla. 1986); Harvard v. State, 486 So. 2d 537 (Fla.) (per curiam), cert. denied, 479 U. S. 863 (1986). We also note that the Florida Legislature has since removed the phrase “as enumerated [in the statutory list]” from the provisions requiring the advisory jury and the sentencing judge to consider mitigating circumstances. See Fla. Stat. §§921.141(2)(b), (3)(b) (1985).

In the sentencing phase of this case, petitioner's counsel introduced before the advisory jury evidence that as a child petitioner had the habit of inhaling gasoline fumes from automobile gas tanks; that he had once passed out after doing so; that thereafter his mind tended to wander; that petitioner had been one of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle to the children of one of his brothers. Tr. of Advisory Sentence 7-10. In argument to the advisory jury, petitioner’s counsel referred to various considerations, some of which were the subject of factual dispute, making a sentence of death inappropriate: petitioner’s youth (he was 20 at the time of the murder), his innocence of significant prior criminal activity or violent behavior, the difficult circumstances of his upbringing, his potential for rehabilitation, and his voluntary surrender to authorities. Id., at 13-17, 21-26. Although petitioner’s counsel stressed the first two considerations, which related to mitigating circumstances specifically enumerated in the statute, he told the jury that in reaching its sentencing decision it was to “look at the overall picture . . . consider everything together . . . consider the whole picture, the whole ball of wax. ” Id., at 50-52. In contrast, the prosecutor told the jury that it was “to consider the mitigating circumstances and consider those by number,” id., at 28, and then went down the statutory list item by item, arguing that only one (petitioner’s youth) was applicable. Before proceeding to their deliberations, the members of the jury were told by the trial judge that he would instruct them “on the factors in aggravation and mitigation that you may consider under our law.” Id., at 5. He then instructed them that “[t]he mitigating circumstances which you may consider shall be the following ...” (listing the statutory mitigating circumstances). Id., at 56.

After receiving the advisory jury’s recommendation (by majority vote) of death, and despite the argument of petitioner’s counsel that the court should take into account the testimony concerning petitioner’s family background and his capacity for rehabilitation, the sentencing judge found that “there [were] insufficient mitigating circumstances as enumerated in Florida Statute 921.14-1(6) to outweigh the aggravating circumstances.” Tr. of Sentencing Proceedings 7 (emphasis added). He described the process by which he reached his sentencing judgment as follows: “In determining whether the defendant should be sentenced to death or life imprisonment, this Court is mandated to apply the facts to certain enumerated ‘aggravating’ and ‘mitigating’ circumstances.” 10 Record 195 (emphasis added). The only mitigating circumstance he found was petitioner’s youth. Id., at 197.

We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U. S. 1 (1986), Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). Respondent has made no attempt to argue that this error was harmless, or that it had no effect on the jury or the sentencing judge. In the absence of such a showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid. See Skipper, supra (evidence that defendant had adapted well to prison life); Eddings, supra (evidence of 16-year-old defendant’s troubled family history and emotional disturbance). As in those cases, however, the State is not precluded from seeking to impose a death sentence upon petitioner, “provided that it does so through a new sentencing hearing at which petitioner is permitted to present any and all relevant mitigating evidence that is available.” Skipper, supra, at 8.

We reverse the judgment and remand the case to the Court of Appeals. That court is instructed to remand to the District Court with instructions to enter an order granting the application for a writ of habeas corpus, unless the State within a reasonable period of time either resentences petitioner in a proceeding that comports with the requirements of Lockett or vacates the death sentence and imposes a lesser sentence consistent with law.

It is so ordered.

       Certiorari was also granted on petitioner’s claim that the Florida death penalty statute discriminates against capital defendants who murder whites and against black capital defendants, in violation of the Eighth and Fourteenth Amendments. Because we hold petitioner’s death sentence invalid on other grounds, we decline to reach this claim. We today decide a similar challenge to the Georgia death penalty statute. See McCleskey v. Kemp, ante, p. 279.

       Section 921.141(5) provided that the aggravating circumstances “shall be limited to the following”: that the crime was committed while the defendant was under sentence of imprisonment; that the defendant had previously been convicted of a felony involving the use or threat of violence; that the defendant knowingly created a great risk of death to many persons; that the crime was committed while the defendant was involved in the commission of specified other felonies; that the crime was committed for the purpose of avoiding arrest or escaping from custody; that the crime was committed for pecuniary gain; that the crime was intended to disrupt the government or the enforcement of the laws; and that the crime was especially heinous, atrocious, or cruel.

       Section 921.141(6) provided that the mitigating circumstances “shall be the following”: that the defendant had no significant history of prior criminal activity; that the crime was committed while the defendant was under the influence of extreme mental or emotional disturbance; that the victim participated in or consented to the crime; that defendant was merely an accomplice whose participation in the crime was relatively minor; that the defendant acted under duress or domination; that the capacity of the defendant to appreciate the criminality of his conduct or to conform that conduct to the requirements of law was substantially impaired; and the age of the defendant at the time of the crime.


author: Per Curiam. Justice Marshall, Justice Stevens,

text:
    MONTANA v. HALL
    No. 86-1381.
    Decided April 27, 1987
   Per Curiam.

In 1984 the State of Montana filed an information in the Yellowstone County District Court charging respondent with felony sexual assault in violation of Mont. Code Ann. § 45-5-502 (1981). The affidavit in support of the information indicated that the assault took place during the summer of 1983, and that the victim was the daughter of respondent’s ex-wife. The victim was 12 years old at the time of the offense. Four days before trial, respondent filed a motion to dismiss the information, arguing that because the victim was his stepdaughter he could be prosecuted only for incest, under Mont. Code Ann. § 45-5-507 (1983), not sexual assault. Respondent argued that incest was merely a specific instance of sexual assault, and that the Montana Legislature had not intended incestuous acts to be subject to prosecution under the more general sexual assault statute. On the morning of the trial, the State District Court held a hearing and then granted the motion. The State promptly filed a new information charging respondent with incest, and proceeded to trial. A jury convicted respondent. The judge sentenced respondent to 10 years’ imprisonment, but suspended 5 years of the sentence.

Respondent appealed his conviction to the Montana Supreme Court, raising a number of claims not directly relevant to the issue before this Court. One of respondent’s claims was that he could not lawfully be convicted of incest because the victim was not his stepdaughter within the meaning of the Montana incest statute. In the course of considering this claim, the State discovered that at the time of the assault the incest statute had not applied to sexual assaults against stepchildren. The amended statute under which respondent was tried had not become effective until October 1, 1983, three months after the assault in question. On March 5, 1986, the State filed a motion bringing this matter to the attention of the Montana Supreme Court.

After briefing on the questions raised by the State’s motion, the Montana Supreme Court concluded that the conviction was void because retroactive application of the amended statute would violate the ex post facto law prohibition of the Montana Constitution, Art. II, §31. It also held that the Double Jeopardy Clause of the Fifth Amendment to the Federal Constitution prohibited retrial of respondent. It stated that “[i]f the offense charged in the second trial is the same in law and fact as the offense charged in the first trial, the double jeopardy clause prohibits successive trials.” 224 Mont. 187, 190, 728 P. 2d 1339, 1340 (1986) (citing Brown v. Ohio, 432 U. S. 161, 167, n. 6 (1977)). The court then analyzed the elements of sexual assault and incest and concluded that they were the same offense for double jeopardy purposes. Relying on this conclusion and Brown v. Ohio, it held that the Double Jeopardy Clause barred retrial. As an alternative ground of decision, it noted that respondent “was convicted of a crime which did not exist on the date of the charged offense.” 224 Mont., at 192, 728 P. 2d, at 1342. In the court’s view, a retrial after a conviction for committing a nonexistent crime also would subject respondent to double jeopardy.

It is a “venerable principle] of double jeopardy jurisprudence” that “[t]he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, Burks v. United States, [437 U. S. 1 (1978)], poses no bar to further prosecution on the same charge.” United States v. Scott, 437 U. S. 82, 90-91 (1978). See generally 3 W. LaFave & J. Israel, Criminal Procedure §24.4 (1984). Justice Harlan explained the basis for this rule:

“Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.” United States v. Toteo, 377 U. S. 463, 466 (1964).

See Burks v. United States, supra, at 15.

Although Montana’s ex post facto law clause prevents Montana from convicting respondent of incest, we see no reason why the State should not be allowed to put respondent to a trial on the related charge of sexual assault. There is no suggestion that the evidence introduced at trial was insufficient to convict respondent. See Burks v. United States, supra. Montana originally sought to try respondent for sexual assault. At respondent’s behest, Montana tried him instead for incest. In these circumstances, trial of respondent for sexual assault, after reversal of respondent’s incest conviction on grounds unrelated to guilt or innocence, does not offend the Double Jeopardy Clause.

The principal federal authority relied on by the Montana Supreme Court was our decision in Brown v. Ohio, supra. The petitioner in that case had been convicted of joyriding. After serving a term of imprisonment on that conviction, he was charged with auto theft. We concluded that the charges of joyriding and theft punished a single offense, and thus that retrial was impermissible. But the Brown analysis is not apposite in this case. In Brown, the defendant did not overturn the first conviction; indeed, he served the prison sentence assessed as punishment for that crime. Thus, when the State sought to try him for auto theft, it actually was seeking a second conviction for the same offense. By contrast, respondent in this case sought, and secured, invalidation of his first conviction. This case falls squarely within the rule that retrial is permissible after a conviction is reversed on appeal.

The Montana court also suggested that the Double Jeopardy Clause would forbid retrial because respondent was convicted of an offense that did not exist when respondent had committed the acts in question. But, under the Montana court’s reading of the Montana sexual assault statute, respondent’s conduct apparently was criminal at the time he engaged in it. If that is so, the State simply relied on the wrong statute in its second information. It is clear that the Constitution permits retrial after a conviction is reversed because of a defect in the charging instrument. E. g., United States v. Ball, 163 U. S. 662, 672 (1896).

We grant Montana’s petition for a writ of certiorari and reverse the judgment of the Montana Supreme Court. The case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Brennan would deny the petition for certiorari.

Justice Marshall,

dissenting.

For years, I have been troubled by our disposition of appeals and petitions for certiorari through summary per curiam opinions, without plenary briefing on the merits of the issues decided. Other Justices have registered similar objections, disputing the Court’s application of the criteria that supposedly determine when a summary disposition is clearly justified. Our persistent indulgence in this practice over the objections of our colleagues has tarnished what has long been considered one of this judicial institution’s greatest qualities, the fairness and integrity of its decisionmaking process.

Through summary dispositions, we deprive the litigants of a fair opportunity to be heard on the merits. Our Rules tell the petitioner and respondent that we will grant review on writ of certiorari “when there are special and important reasons therefor.” In listing the considerations that are important in deciding whether review should be granted, we mention such things as conflicting decisions from other courts and unsettled questions of federal law. We do not indicate that the parties should address the merits of the lower court’s decision beyond what is necessary to demonstrate whether the case is important enough to receive plenary review. Our 30-page limit for petitions and responses, and the command that they be “as short as possible,” unmistakably indicate that these papers should not contain detailed discussions of the merits. If we find the case sufficiently important, the Rules inform the parties that the petition will be granted and “[t]he case then will stand for briefing and oral argument.” Yet when we issue a summary disposition we ignore these instructions and proceed to decide the case as if it has been fully briefed on the merits. In my view, simply put, this is not fair.

Admittedly, the Rules indicate that summary dispositions on the merits are possible, but in light of our instructions regarding the preparation of petitions ■ and responses this places the litigants in a difficult dilemma. If they venture beyond arguments for granting or denying certiorari, they risk violating the Rules; but if they fail to cover the merits of the lower court’s decision in full, they risk summary disposition without having been heard. In response to these pressures, counsel may tend to extend their arguments in petitions and responses beyond the purposes defined in the Rules. Apart from increasing the litigants’ costs, this tendency can only increase our workload, thereby giving those who favor uncounseled summary dispositions additional justification for not allowing full briefing on the merits.

Not only do we reach these summary dispositions without the benefit of thorough briefing, but the Court often acts without obtaining the complete record of the proceedings below. Records are no longer automatically certified and delivered to us for every petition. In fact, we expressly discourage transmission of the record at this stage of the proceedings, which again indicates that the focus of certiorari is on whether a case is important erough to warrant plenary review and not whether, after abbreviated review, we are able to conclude that the case was rightly or wrongly decided below. Of course, we may call for the record where we think a summary disposition might be proper, and our Clerk notifies the parties of this development, but we do not provide for supplemental briefing on the merits. All too often, as in the case decided today, the Court does not even bother to call for the record. Again, counsel face a dilemma: they may routinely request that records be transmitted, thus protecting the interests of their clients at the risk of violating the •Rules, or they may fail to request transmission and risk summary disposition based on less than complete review.

I cannot accept the proposition that additional briefing and review of the full record will increase the workload of this Court unbearably. Our duty to litigants today is to consider carefully every petition and response filed in this Court. But our duty extends to future litigants as well, and it is heightened when we issue written opinions. To reduce the incidence of mistakes and to avoid delivering conflicting or confusing opinions, our decisions in these cases should be made only after we have had an opportunity to consider comprehensive briefs and review the records in their entirety. We are not infallible, as is evidenced, for example, by the number of cases each Term that are dismissed after plenary briefing and oral argument as having been improvidently granted. The time and effort required to read supplemental briefs in cases for which we are considering summary dispositions would be minimal, and the relative gains substantial.

More is at stake, however, than offsetting the litigants’ entitlement to be heard on the merits against our desires to avoid increasing the workload. Summary dispositions often do not accord proper respect for the judgments of the lower courts, particularly when these judgments are reversed. The judges below have had the benefit of full briefing on the merits and review of the entire record. They must perceive — correctly—that our cavalier reversals are inherently less well informed.

I believe, moreover, that summary dispositions in many instances display insufficient respect for the views of dissenting colleagues on this Court. The tendency is to forget that we are equally uninformed. What troubles a single Justice about a particular case may become, after full briefing, a decisive factor in the judgment of the Court. As it is, we forge ahead issuing per curiam opinions as if the issue were crystal clear, at times over objection from as many as four other Justices. It is not unreasonable to believe, as I do, that the integrity of a summary decision from a divided Court would benefit from additional briefing on the merits by those who have litigated the issues of the case from its inception.

“Per curiam” is a Latin phrase meaning “[b]y the court,” which should distinguish an opinion of the whole Court from an opinion written by any one Justice. Our use of a lengthy per curiam opinion, over the dissent of those who would set the case for briefing, to resolve the merits of a case without devoting the usual time or consideration to the issues presented, is wrong. Such an opinion does not speak for the entire Court on a matter so clear that the Court can and should speak with one voice. Instead, it speaks for a majority of Justices who take it upon themselves to resolve the merits of a dispute solely on the basis of preliminary petitions and responses.

I can think of no compelling reason, and to date none has been suggested, why we should nurture a practice that can only foster resentment, uncertainty, and error. Rather, I believe that when the Court contemplates a summary disposition it should, at the very least, invite the parties to file supplemental briefs on the merits, at their option. This simple accommodation to the reasonable expectations of the litigants, to the integrity of the lower courts, and to the desires of other Justices for a more studied decision would go a long way toward achieving the fairness and accuracy that the Nation rightfully expects from its Court of last resort. Until this, or some other, reasonable accommodation is implemented, I remain in dissent.

Justice Stevens,

dissenting.

“Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court’s refusal to decide cases where there is an adequate and independent state ground.” Michigan v. Long, 463 U. S. 1032, 1040 (1983).

Perhaps the Court is correct in assuming that the decision of the Supreme Court of Montana does not rest on an adequate and independent state ground. Nevertheless, it is worthy of note that the state court expressly relied on Article II, §25, of the Montana Constitution and cited four decisions of the Montana Supreme Court in support of its double jeopardy holding. Furthermore, after concluding that “the double jeopardy clause prohibits [respondent’s] retrial,” 224 Mont. 187, 192, 728 P. 2d 1339, 1342 (1986), the Montana court advanced an alternative ground for its decision that is supported only by the Montana case of State v. Hembd, 197 Mont. 438, 643 P. 2d 567 (1982), namely that retrial would be impermissible because respondent was convicted of an offense that did not exist when he committed the acts in question; this state-law doctrine has no federal counterpart of which I am aware.

My respect for the independence of state courts, as well as the desirability of not rendering opinions that may turn out to be wholly advisory, therefore persuades me that the Court’s summary disposition is unwise. See, e. g., People v. P. J. Video, Inc., 68 N. Y. 2d 296, 501 N. E. 2d 556 (1986) (declining to follow New York v. P. J. Video, Inc., 475 U. S. 868 (1986)), cert. denied, 479 U. S. 1091 (1987); Commonwealth v. Upton, 394 Mass. 363, 476 N. E. 2d 548 (1985) (declining to follow Massachusetts v. Upton, 466 U. S. 727 (1984)); Bellanca v. New York State Liquor Authority, 54 N. Y. 2d 228, 429 N. E. 2d 765 (1981) (declining to follow New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981)), cert. denied, 456 U. S. 1006 (1982); State v. Opperman, 247 N. W. 2d 673 (S. D. 1976) (declining to follow South Dakota v. Opperman, 428 U. S. 364 (1976)).

I would simply deny Montana’s petition for a writ of certiorari..

       Nor was the jury’s conviction of respondent on the charge of incest an implied acquittal of the offense of sexual assault; there would have been an implied acquittal only if the jury had been presented with charges of both sexual assault and incest and had chosen to convict respondent of incest. See Green v. United States, 355 U. S. 184 (1957).

       We explicitly noted in Brown that the case did not raise “the double jeopardy questions that may arise . . . after a conviction is reversed on appeal.” 432 U. S., at 165, n. 5.

       As Justice Stevens implicitly acknowledges, we have jurisdiction over this petition under 28 U. S. C. § 1257(3). The Montana court’s decision “fairly appears to rest primarily on federal law, or to be interwoven with the federal law,” and “the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983).

       We express no opinion on the correctness, as a matter of federal constitutional law, of the Montana Supreme Court’s conclusion that sexual assault and incest are the “same” offenses.

       See, e. g., Allen v. Hardy, 478 U. S. 255, 261 (1986) (Marshall, J., dissenting); Maggio v. Fulford, 462 U. S. 111, 120 (1983) (Marshall, J., dissenting); Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 62 (1982) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 50 (1982) (Marshall, J., dissenting); Harris v. Rivera, 454 U. S. 339, 349 (1981) (Marshall, J., dissenting); Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall, J., dissenting); Harris v. Rosario, 446 U. S. 651, 652 (1980) (Marshall, J., dissenting); Smith v. Arkansas State Highway Employees, 441 U. S. 463, 466 (1979) (Marshall, J., dissenting).

       See, e. g., Board of Education of Rogers, Ark. v. McCluskey, 458 U. S. 966, 971-972 (1982) (Stevens, J., dissenting); United States v. Hollywood Motor Car Co., 458 U. S. 263, 271 (1982) (Blackmun, J., dissenting); Hutto v. Davis, 454 U. S. 370, 387 (1982) (Brennan, J., dissenting); Stone v. Graham, 449 U. S. 39, 47 (1980) (Rehnquist, J., dissenting); Oregon State Penitentiary v. Hammer, 434 U. S. 945, 947 (1977) (Stevens, J., dissenting); Eaton v. Tulsa, 415 U. S. 697, 707 (1974) (Rehnquist, J., dissenting); cf. Shipley v. California, 395 U. S. 818, 821 (1969) (White, J., dissenting).

       This Court’s Rule 17.1.

       At our direction the respondent focuses instead on “disclosing any matter or ground why the cause should not be reviewed.” Rule 22.1.

       Rules 21.4 and 22.2. In this case, petitioner devoted 12 pages to the merits of the double jeopardy issue decided by the Court today, respondent only 7. Pet. for Cert. 10-21; Respondent’s Brief in Opposition 8-14. An amicus curiae brief submitted on behalf of 17 States devoted a total of five pages to the merits. Brief for the States and Commonwealths of Indiana et al. as Amici Curiae 2-6.

       Rule 23.2.

       This lack of fairness has not escaped the notice of commentators. See, e. g., E. Brown, The Supreme Court 1957 Term—Forward: Process of Law, 72 Harv. L. Rev. 77, 80, 82, (1958); R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 284-285 (6th ed. 1986).

       Rule 23.1. This Rule was not codified until 1980. Stern, Gressman, & Shapiro, Supreme Court Practice, supra, at 277.

       Cf. United States v. Hollywood Motor Car Co., supra, at 271 (Blackmun, J., dissenting).

       See Hutto v. Davis, supra, at 387, n. 6 (BRENNAN, J., dissenting); Stern, Gressman, & Shapiro, Supreme Court Practice, supra, at 286.

       See generally Stern, Gressman, & Shapiro, Supreme Court Practice, supra, at 329-333.

       Rule 19.1.

       A party may, at any time, file a supplemental brief not exceeding 10 pages, but these briefs can only address a “new matter” not available at the time of the party’s last filing. Rule 22.6. This Rule does not envision supplemental briefing when the Court calls for the record. See also Rule 21.3 (supplemental brief in support of petition will not be received).

       To put matters in perspective, were we to shorten the acceptable length of petitions and responses merely by one-fifth of a single page, it would free up at least 2,000 pages worth of our reading time to consider full briefs for the relatively few summary dispositions we issue each year. That comes to 40 briefs, at 50 pages each, or 20 cases decided in which the parties and the Court would have the benefit of full briefing. This assumes that 5,000 petitions are filed each year, and that on the average litigants use the complete 30 pages allowed. The former assumption is conservative and is a matter of record; based on my personal observation the latter assumption is more than fair.

       See, e. g., Stone v. Graham, 449 U. S., at 47 (Rehnquist, J., dissenting); Oregon State Penitentiary v. Hammer, 434 U. S., at 947 (Stevens, J., dissenting).

       See, e. g., Newport v. Iacobucci, 479 U. S. 92 (1986).

       Black’s Law Dictionary 1023 (5th ed. 1979) (emphasis added).

       Article II, §25, of the Montana Constitution provides: “No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.”

         State v. Lindseth, 203 Mont. 115, 659 P. 2d 844 (1983); State v. Wells, 202 Mont. 337, 658 P. 2d 381 (1983); State v. Hembd, 197 Mont. 438, 643 P. 2d 567 (1982); State v. Parmenter, 112 Mont. 312, 116 P. 2d 879 (1941).