South Bend’s Police Department records some of the desk phones supplied to officers. Bishop’s phone was added to those being recorded, at his request. In 2010, Richmond took Bishop’s former office. Richmond kept his phone number, so the Line was switched to a vacant office. Young then moved to that office, not knowing that the phone was recorded. In 2011 the recording system crashed. While listening to recordings to make sure that restoration had been done correctly, DaPaepe heard Young say things that she thought inappropriate. DaPaepe gave Chief Boykins tapes of calls. Boykins used the information to make threats. Federal and state investigations ended without charges. Boykins was demoted. The City’s Common Council demanded the tapes, issued a subpoena to the city’s executives, and sought state court enforcement. The city, believing that releasing the tapes would violate wiretap statutes, 18 U.S.C. 2510–22, sought a declaratory judgment. The district court ruled that it had subject-matter jurisdiction although the Declaratory Judgment Act, 28 U.S.C. 2201, normally cannot be used to present a federal defense to state litigation. Before the Common Council moved to dismiss, five individual defendants in the city’s suit had become plaintiffs, seeking damages based on federal statutes. The Seventh Circuit vacated the district court's holding without addressing the merits, noting that the suit began as a claim by the city's executive branch against the legislative branch, that the damages issues have settled, and that the issue of the Council’s access to the tapes is in state court.
In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 15-3315 & 15-3385 CITY OF SOUTH BEND, INDIANA, Plaintiff-Appellee, v. SOUTH BEND COMMON COUNCIL, Defendant-Appellee, Cross-Appellant, and TIM CORBETT, et al., Defendants-Appellants, Cross-Appellees. ____________________ Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:12-CV-475 JVB — Joseph S. Van Bokkelen, Judge. ____________________ ARGUED OCTOBER 26, 2016 — DECIDED AUGUST 1, 2017 ____________________ Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges. EASTERBROOK, Circuit Judge. The caption of this case says much of what is necessary to its resolution: the City of South Bend, Indiana, is suing one of its constituent parts. 2 Nos. 15-3315 & 15-3385 As a matter ordinary business, South Bend’s Police Department (part of the City rather than a distinct juridical entity) records some of the desk phones supplied to officers as official equipment at its headquarters. In 2005 Rick Bishop, then a Captain in the Risk Management Bureau, asked that his phone be added to those being recorded, and this was done. The line’s phone number does not matter; we call it the Line. In February 2010 Steve Richmond took Bishop’s former position and office. Richmond wanted to keep his old phone number, so the Line was switched to the office of the Captain of the Investigative Division, which was vacant at the time. In March 2010 Brian Young was promoted to that job. Young did not know that the phone in his new office was among those being recorded. It is unclear who did know in 2010; once recording began in 2005, no one appears to have given the subject further thought. In February 2011 the recording system crashed and had to be restored from a backup. While listening to some recordings to make sure that this had been done correctly, Karen DaPaepe, the Police Department’s Director of Communications, heard Young say things that she thought inappropriate. This was reported up the chain of command, and in December 2011 the Chief of Police (Darryl Boykins) asked DaPaepe to give him recordings of the most troubling calls. DaPaepe gave the Chief cassette tapes of calls Young had made on eight dates in 2011. Apparently knowledge of the recordings’ existence and contents went beyond Boykins; other persons whose voices had been recorded on the Line became concerned. Boykins used some of the information to threaten Richmond. Federal and state officials launched investigations, which ended without charges being filed. Boykins was demoted; DaPaepe was fired. And the Com- Nos. 15-3315 & 15-3385 3 mon Council (the City’s legislature) demanded access to the tapes. When the Police Department demurred, the legislators issued a subpoena to the City’s executive officials and applied to state court for its enforcement. The City believes that complying with the subpoena would violate federal wiretap statutes. See 18 U.S.C. §§ 2510–22. Not content with the prospect of interposing a federal defense to the subpoena, the City of South Bend filed this federal suit, seeking a declaratory judgment that disclosure of the recordings would violate §2511(1)(c). A federal defense to a claim arising under state law does not permit the suit’s removal. See, e.g., Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (discussing the rule and its exceptions, such as complete preemption). The City tried to sidestep this rule, and obtain a decision on an isolated federal issue, through the declaratory-judgment process. For good measure the City sued Young, Richmond, and three other persons, contending that it should be declared not liable to any of them. They filed their own suit seeking damages from the City. The district court consolidated the two suits. The district court ruled that it had subject-matter jurisdiction despite the fact that the suit had been filed to present a federal defense to a state suit rather than a stand-alone federal claim. Normally the Declaratory Judgment Act, 28 U.S.C. §2201, cannot be used to present a federal defense to state litigation. But before the Common Council moved to dismiss the action, the five individual defendants in the City’s suit had become plaintiffs in their own suit, seeking damages based directly on federal statutes. This supplied jurisdiction, the district court concluded, even though the City’s original complaint did not. 2013 U.S. Dist. LEXIS 5192 4 Nos. 15-3315 & 15-3385 (N.D. Ind. Jan. 14, 2013). In effect, the district court treated the second suit, consolidated with the City’s, as the jurisdictional footing for both suits, with the original dispute between the City’s legislative and executive branches along for the ride under the supplemental jurisdiction of 28 U.S.C. §1367. After a bench trial, the judge concluded that recordings through February 4, 2011, had been lawful because Captain Bishop had consented in 2005 and no one with authority over the recording system recognized that Captain Young had started using the Line in March 2010. Lawfully made recordings may be disclosed, the judge added. But once DaPaepe learned that Young was using the Line, recording became unlawful—and because the recordings were unlawful, their distribution, even in response to a state subpoena, would be unlawful. The district court rejected the Common Council’s reliance on 18 U.S.C. §2510(5)(a)(ii), which permits the recording of any line “being used by … an investigative or law enforcement officer in the ordinary course of his duties”. The judge based his finding of illegality principally on §2511(1)(a), which forbids the intentional interception of a call in the absence of a statutory justification. The district court treated the intent element as related to knowledge of whose voice would be heard rather than knowledge of which line would be recorded, but the judge did not explain why the statutory word “intentionally” refers to the identities of the parties to a call. We have cross-appeals. The Common Council asks us to hold that all of the recordings may be disclosed and the individual parties that none may be. The City did not appeal but also does not defend the judgment in full. It asks us to Nos. 15-3315 & 15-3385 5 hold, contrary to the district court, that the recordings on February 4, 2011, are unlawful. The City does not discuss the venerable rule that only a party that has filed a timely appeal may obtain a modification of the judgment. See Greenlaw v. United States, 554 U.S. 237 (2008). And none of the parties’ briefs discusses the significance of the pending state litigation, the fact that one branch of the City of South Bend is suing another, or the fact that before trial the individual parties’ suit had been settled and dismissed. After argument we directed the parties to file briefs on these issues. We now conclude that it is unnecessary to discuss the merits, for reasons that can be stated succinctly. The initial problem, as we observed at the outset, is that this suit began as a claim by the executive branch of a city’s government against the legislative branch. Asked for precedent deeming such a suit justiciable, the parties knew of none. We likewise could not find any. The suit is like one division of General Motors suing another. We held in Illinois v. Chicago, 137 F.3d 474 (7th Cir. 1998), that a state cannot sue one of its cities, because as far as the national government is concerned a state and all of its creatures is a unit. That goes for cities suing their states, too. See, e.g., Trenton v. New Jersey, 262 U.S. 182, 185–86 (1923); Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 (1933). Doubtless a state can divide powers into such rigidly separated compartments that it is possible for one to sue another. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015). But a city’s legislative and executive branches are not distinct juridical entities; they are part of a single government. Sometimes individual members of the legislature are permitted to sue par- 6 Nos. 15-3315 & 15-3385 ticular executive officers, but they face formidable problems of standing. See Raines v. Byrd, 521 U.S. 811 (1997). A suit by one whole branch of the federal government against another is not possible; a suit by the executive branch of a city versus the legislative branch is equally improper. State courts may have authority to resolve an intramural dispute, but otherwise it must be worked out the same way Congress and the President resolve their differences: by politics. But suppose this is wrong and that Arizona State Legislature becomes the norm rather than, as the Justices described it, a special situation based on a state constitution’s provision allocating powers among state entities in a way that was asserted to violate the federal Constitution. 135 S. Ct. at 2661–65. The fact remains that the City filed this suit in an effort to achieve, through the Declaratory Judgment Act, the removal of a single federal issue in a pending state case. Potential state-court defendants can use the declaratoryjudgment process to curtail legal risk. The paradigm is the person who contends that he fears being prosecuted under state law for speech that is protected by the First Amendment and to avoid the risk of punishment will keep silent unless a federal court declares the state law invalid. See, e.g., Steffel v. Thompson, 415 U.S. 452 (1974). But once a state prosecution begins, the state court is the right place for the federal defense. That’s the holding of Younger v. Harris, 401 U.S. 37 (1971), for criminal cases, and we know from Samuels v. Mackell, 401 U.S. 66, 69–73 (1971), that Younger applies to declaratory judgments as well as to injunctions. Trainor v. Hernandez, 431 U.S. 434 (1977), adds that the same principle applies to civil litigation brought by a state to implement state policy. See also Huffman v. Pursue, Ltd., 420 U.S. 592 (1975). Nos. 15-3315 & 15-3385 7 The Common Council sued in state court to vindicate what it depicts as a right to information needed for the exercise of its legislative powers. Whether or not that activates the Younger principle, it certainly makes the issuance of a declaratory judgment imprudent. Wilton v. Seven Falls Co., 515 U.S. 277, 289–90 (1995), and Brillhart v. Excess Insurance Co., 316 U.S. 491 (1942), conclude that a federal judge ordinarily should decline to issue a declaratory judgment when the same parties are litigating the same issues before a state court, even when the state plaintiff is a private entity. When the state plaintiff is a governmental body, putting Trainor and Huffman together with Wilton and Brillhart leads straight to the conclusion that it is an abuse of discretion to take a federal defense out of a state judge’s hands by issuing a declaratory judgment. If any court is to resolve a dispute between the legislative and executive branches of a unit of state or local government, a state court is the right forum. The district judge did not suggest disagreement with these principles and instead invoked Captain Young’s (and the other private litigants’) request for damages under 18 U.S.C. §2520 as the basis of its authority. There are two problems. First, what we have said already shows that the existence of subject-matter jurisdiction is a necessary, but not a sufficient, condition for issuing a declaratory judgment. Second, by the time of trial there was no dispute about damages requiring resolution. The request for damages had been settled and the private suit dismissed. The parties to that suit executed a release in November 2013. The settlement includes a provision that public release of the recordings will be governed by the outcome of the state litigation. That left nothing more for the federal judge to do. 8 Nos. 15-3315 & 15-3385 In papers filed after the oral argument, the parties stressed that only the request for damages has been settled and that the five individual litigants still want a declaratory judgment that the City must not make the recordings public or otherwise use them. But how does that justify a decision by a federal court? Equitable relief—injunctions and declaratory judgments alike—depends on a conclusion that legal relief such as damages is inadequate to protect injured parties. By settling their claims, the five individual litigants have shown that financial relief is adequate. To seek a declaratory judgment is to request an advisory opinion on top of the settlement. We could imagine an argument that a further release or use of the recordings, should the Common Council prevail in the state case, would cause further injury to the five individual litigants and justify additional compensation. But the settlement forecloses that possibility. It provides for payment of a flat sum, even as it contemplates the possibility that the state court will permit dissemination of the recordings. The parties could have structured their settlement so that additional disclosure leads to additional remuneration, but they did not. The five individual litigants have given up any entitlement to further compensation, perhaps receiving a larger lump sum as a result. What’s more, if the state court authorizes a further disclosure, this would reflect a decision that federal law permits disclosure. That conclusion would knock out any legal basis for additional compensation. In sum, the settlement removes the private interests from the case, leaving only the City’s effort to move a federal defense from state to federal court. Nos. 15-3315 & 15-3385 9 The judgment of the district court is vacated, and the case is remanded with instructions to dismiss the complaint. The state court now is free to resolve the underlying dispute on its own, without regard to the vacated federal judgment.
District court must dismiss declaratory judgment action, filed by city's executive branch against its legislative branch, and, essentially, asserting a federal defense to state litigation.


In California, a new ballot initiative to legalize marijuana is being planned for 2016. In response to legalization, California may follow in the footsteps of Washington and Colorado by enacting a “per se” law to combat the supposed dangers of driving under the influence of marijuana (DUIM). A per se law would create a presumption of DUIM if the driver tests positive for certain amount of THC, a psychoactive component found in marijuana. While similar laws exist nationwide for driving under the influence of alcohol (DUI), marijuana is not the same drug, and a DUIM law that doles out punishment based on a single biological measure may create unjust results.
What is a “per se” law? Essentially, a per se law makes a certain act illegal without needing proof of any surrounding circumstances. A well-known example is the .08 blood alcohol concentration (BAC) limit for enforcing DUIs. In every state, if you are caught driving with a BAC level over .08, you are presumed to be intoxicated, and that fact alone is enough to support a criminal charge. In response to marijuana legalization, a new per se law has been enacted in Colorado and Washington – if you have 5 nanograms of THC per millimeter of whole blood, you are presumed to be too high to drive.1 Given the widespread use of whole blood THC concentration as a metric for DUIM, this type of testing will be the focus of this article.
The current statute criminalizing DUIM in California requires proof that a driver was unable to operate a vehicle with the same caution and safety of a sober person.2 This is unlike a per se law because there is no single piece of data that will, by default, support a criminal charge. Instead, juries can consider all the evidence they are given and have it guide their judgment on whether a driver was or was not able to safely drive. In a post-legalization California, the goal of DUIM law should be to prohibit dangerous driving. To meet this goal, a per se law needs to be able to have an accurate way to test for intoxication, and the level of intoxication must correlate with an increased risk of crashing. Many proponents point to DUI per se laws as a model of success, but alcohol and marijuana differ both in the danger they present and the ability to accurately test for impairment.
DUI per se laws have been built on a foundation of scientifically proven crash risks. Since DUI law criminalizes a condition that may cause harm, the chance of causing harm was vital in the creation of DUI per se laws. In 1964, a study took place in Grand Rapids Michigan involving 9,353 drivers involved in car crashes and 8,008 drivers who had driven at the same times and locations without being involved in a crash.3 The Grand Rapids Study found that drivers with a BAC of .08% were twice as likely to crash, those with a .10% were six times as likely, and those with a .15% were ten times more likely.4 These results were confirmed in the many studies that followed after. (See pg. 45.) This correlation between BAC and crash risk gave lawmakers the ability to design per se laws that would criminalize a certain amount of risk. (See pg. 39.) In all states, double the crash risk, or .08% BAC, incurs a criminal penalty.
On the DUIM side of things, states like Washington and Colorado have used a 5 nanogram THC limit, and some states have used limits of 2 nanograms and lower.5 However, unlike the development of DUI per se law, a DUIM per se law cannot be designed around the risk of accidents. First, a significant crash risk for marijuana has not been definitely established. Second, THC’s presence in the body does not track impairment accurately.
As discussed in my previous article, the National Highway Traffic Safety Administration (NHTSA) recently released the results of a study that did not find an increased crash risk for drivers who tested positive for THC. The NHTSA study is the first large-scale study of its kind conducted in the United States and it would have been the best indicator of a crash risk, had there been one. This result is not through some trick of statistics or a poorly done study, but is likely owed to the fact that high drivers can compensate for the effects of marijuana by driving more conservatively. In contrast, drunk drivers are unable to compensate for their intoxication, and the NHTSA study confirmed that drivers with a .08% BAC had four times the chance of crashing.
If some crash risk is later shown, or the effect of marijuana on driving is enough to justify a per se law, its application would still run the risk of indicting drivers who aren’t intoxicated. THC testing presents numerous issues that remove it from the accuracy and fairness associated with BAC testing. Alcohol quickly equalizes between the brain, blood, and other tissue, so the level of alcohol in the blood (BAC) is similar to the level of alcohol intoxication in the brain. (See pg. 140.) THC does not reach a uniform concentration throughout the body, so the level of THC found in the blood will not consistently match the level of THC in the brain.
Furthermore, THC tends to remain in the body far longer than the duration of its effects. The impairing effects of marijuana will normally wear off in approximately three to five hours after smoking. However, THC can still be detected for as long as eight to twelve hours in infrequent users, and heavy users have shown to still have detectable levels of THC for several days. Since 50 or to 100 nanograms of THC is the typical peak, marijuana users may be unfairly targeted, especially in states with zero tolerance policies or THC limits as low as 2 nanograms. (Pennsylvania and Ohio, respectively).6 It is entirely possible that marijuana users who smoke on a Friday night could be arrested for DUIM just by driving the next morning.
These values reflect plasma or blood serum THC levels. Divide these values by about half for whole blood levels.
Since THC concentrations generally fall between .5 and 2 nanograms in three to four hours after smoking, (see pg. 176) using a higher nanogram limit will reduce the chance that drivers are punished based on a lingering amount of THC in their blood. While it is possible to set a THC limit just high enough to avoid charging those with a residual level of THC, there is still a risk of charging drivers who have used a negligible amount of marijuana but are tested around the peak of their blood THC concentration. While higher THC limits help focus on drivers who have smoked more recently, the true goal of testing should be to catch dangerously intoxicated drivers, regardless of when they smoked. Given that blood THC concentrations poorly reflect intoxication, testing fails to separate dangerously intoxicated drivers from those who simply use marijuana and drive.
Just because there isn’t a per se law doesn’t mean that DUIM is legal or that the current law isn’t working. DUIM is a crime in California and will continue to be after legalization. When investigating a possible instance of DUIM, police officers will take note of many different factors, like the subject’s driving, behavior, performance on field tests, blood tests, and possession of drugs and/or paraphernalia. This body of evidence would then be used by a prosecutor to substantiate the criminal charge.
Proponents of a per se law argue that a legal limit for THC would establish a clearer method of charging intoxicated drivers, as a test result is all it takes to prove that someone could not safely drive. While this will make it easier to charge marijuana users who drive, there would be no guarantee that officials are only charging those who were dangerously impaired. Ignoring this issue and relying on the courts to fix it would be to “let god sort them out.” Criminal indictments create significant hardship for defendants, regardless of whether they may be found not guilty later on. Furthermore, many defendants would be financially incapable of hiring an expert who could educate the jury on the inaccuracies of THC testing, leading to disparate outcomes in the judicial system based purely on wealth. A per se law runs the risk of arbitrarily causing hardship for marijuana users, acting more as a blanket prohibition than targeted deterrence.
While the current law may not be perfect, it still takes into account many different facts to establish whether a driver is dangerously impaired, cutting straight to the goal of DUIM enforcement. On the other hand, a per se law and the resulting tests would not accurately differentiate between those who pose a danger the public and those who merely use marijuana and drive. DUI per se laws were developed around a consensus of evidence that showed an increase in crash risk for BAC levels as little as .05%. (See pg. 45.) Because there is not a similar level of evidence tying blood THC concentration to accidents, lawmakers cannot criminalize THC levels based on validated safety risks. With no evidence of harm and no accurate way to test intoxication, enacting a DUIM per se limit would not be a shield against hazard, but more like a shot in the dark.
3. Robert F. Borkenstein et al., The Role of the Drinking Driver in Traffic Accidents (1964).
5. Colo. Rev. Stat. Ann. § 42-4-1301(6)(a)(IV); Wash. Rev. Code Ann. § 46.61.502(1)(b); Ohio Rev. Code Ann. § 4511.19(A)(1)(j)(vii); 75 Pa. Cons. Stat. Ann. § 3802.
6. 75 Pa. Cons. Stat. Ann. § 3802; Ohio Rev. Code Ann. § 4511.19(A)(1)(j)(vii).


825 F. 3d 311, reversed and remanded.
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321.
466 U. S. 668, the Sixth Circuit concluded that, while the Government conceded that Lee’s counsel had performed deficiently, Lee could not show that he was prejudiced by his attorney’s erroneous advice.
Held: Lee has demonstrated that he was prejudiced by his counsel’s erroneous advice. Pp. 5–13.
Lee contends that he can make this showing because he never would have accepted a guilty plea had he known the result would be deportation. The Government contends that Lee cannot show prejudice from accepting a plea where his only hope at trial was that something unexpected and unpredictable might occur that would lead to acquittal. Pp. 5–8.
529 U. S. 362 (internal quotation marks omitted); Strickland, 466 U. S., at 695. More fundamentally, it overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.
533 U. S. 289–323. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Lee, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial. Pointing to Strickland, the Government urges that “[a] defendant has no entitlement to the luck of a lawless decisionmaker.” 466 U. S., at 695. That statement, however, was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it would have affected the defendant’s decisionmaking. Pp. 8–10.
(c) Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. In the unusual circumstances of this case, Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation: Both Lee and his attorney testified that “deportation was the determinative issue” to Lee; his responses during his plea colloquy confirmed the importance he placed on deportation; and he had strong connections to the United States, while he had no ties to South Korea.
559 U. S. 356, since deportation would almost certainly result from a trial. Unlike the Government, this Court cannot say that it would be irrational for someone in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation. Pp. 10–13.
Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined except as to Part I. Gorsuch, J., took no part in the consideration or decision of the case.
Petitioner Jae Lee was indicted on one count of possessing ecstasy with intent to distribute. Although he has lived in this country for most of his life, Lee is not a United States citizen, and he feared that a criminal conviction might affect his status as a lawful permanent resident. His attorney assured him there was nothing to worry about—the Government would not deport him if he pleaded guilty. So Lee, who had no real defense to the charge, opted to accept a plea that carried a lesser prison sentence than he would have faced at trial.
Lee’s attorney was wrong: The conviction meant that Lee was subject to mandatory deportation from this country. Lee seeks to vacate his conviction on the ground that, in accepting the plea, he received ineffective assistance of counsel in violation of the Sixth Amendment. Everyone agrees that Lee received objectively unreasonable representation. The question presented is whether he can show he was prejudiced as a result.
Jae Lee moved to the United States from South Korea in 1982. He was 13 at the time. His parents settled the family in New York City, where they opened a small coffee shop. After graduating from a business high school in Manhattan, Lee set out on his own to Memphis, Tennessee, where he started working at a restaurant. After three years, Lee decided to try his hand at running a business. With some assistance from his family, Lee opened the Mandarin Palace Chinese Restaurant in a Memphis suburb. The Mandarin was a success, and Lee eventually opened a second restaurant nearby. In the 35 years he has spent in the country, Lee has never returned to South Korea. He did not become a United States citizen, living instead as a lawful permanent resident.
At the same time he was running his lawful businesses, Lee also engaged in some illegitimate activity. In 2008, a confidential informant told federal officials that Lee had sold the informant approximately 200 ecstasy pills and two ounces of hydroponic marijuana over the course of eight years. The officials obtained a search warrant for Lee’s house, where they found 88 ecstasy pills, three Valium tablets, $32,432 in cash, and a loaded rifle. Lee admitted that the drugs were his and that he had given ecstasy to his friends.
21 U. S. C. §841(a)(1). Lee retained an attorney and entered into plea discussions with the Government. The attorney advised Lee that going to trial was “very risky” and that, if he pleaded guilty, he would receive a lighter sentence than he would if convicted at trial. App. 167. Lee informed his attorney of his noncitizen status and repeatedly asked him whether he would face deportation as a result of the criminal proceedings. The attorney told Lee that he would not be deported as a result of pleading guilty. Lee v. United States, 825 F. 3d 311, 313 (CA6 2016). Based on that assurance, Lee accepted the plea and the District Court sentenced him to a year and a day in prison, though it deferred commencement of Lee’s sentence for two months so that Lee could manage his restaurants over the holiday season.
28 U. S. C. §2255 to vacate his conviction and sentence, arguing that his attorney had provided constitutionally ineffective assistance.
At an evidentiary hearing on Lee’s motion, both Lee and his plea-stage counsel testified that “deportation was the determinative issue in Lee’s decision whether to accept the plea.” Report and Recommendation in No. 2:10–cv–02698 (WD Tenn.), pp. 6–7 (Report and Recommendation). In fact, Lee explained, his attorney became “pretty upset because every time something comes up I always ask about immigration status,” and the lawyer “always said why [are you] worrying about something that you don’t need to worry about.” App. 170. According to Lee, the lawyer assured him that if deportation was not in the plea agreement, “the government cannot deport you.” Ibid. Lee’s attorney testified that he thought Lee’s case was a “bad case to try” because Lee’s defense to the charge was weak. Id., at 218–219. The attorney nonetheless acknowledged that if he had known Lee would be deported upon pleading guilty, he would have advised him to go to trial. Id., at 236, 244. Based on the hearing testimony, a Magistrate Judge recommended that Lee’s plea be set aside and his conviction vacated because he had received ineffective assistance of counsel.
, the District Court concluded that Lee’s counsel had performed deficiently by giving improper advice about the deportation consequences of the plea. But, “[i]n light of the overwhelming evidence of Lee’s guilt,” Lee “would have almost certainly” been found guilty and received “a significantly longer prison sentence, and subsequent deportation,” had he gone to trial. Order in No. 2:10–cv–02698 (WD Tenn.), p. 24 (Order). Lee therefore could not show he was prejudiced by his attorney’s erroneous advice. Viewing its resolution of the issue as debatable among jurists of reason, the District Court granted a certificate of appealability.
; internal quotation marks omitted). Lee had “no bona fide defense, not even a weak one,” so he “stood to gain nothing from going to trial but more prison time.” 825 F. 3d, at 313, 316. Relying on Circuit precedent holding that “no rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence,” the Court of Appeals concluded that Lee could not show prejudice. Id., at 314 (internal quotation marks omitted). We granted certiorari. 580 U. S. ___ (2016).
; Hill, 474 U. S., at 58. To demonstrate that counsel was constitutionally ineffective, a defendant must show that counsel’s representation “fell below an objective standard of reasonableness” and that he was prejudiced as a result. Strickland, 466 U. S., at 688, 692. The first requirement is not at issue in today’s case: The Government concedes that Lee’s plea-stage counsel provided inadequate representation when he assured Lee that he would not be deported if he pleaded guilty. Brief for United States 15. The question is whether Lee can show he was prejudiced by that erroneous advice.
. A defendant raising such a claim can demonstrate prejudice by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 482 (quoting Strickland, 466 U. S., at 694; internal quotation marks omitted).
But in this case counsel’s “deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” Flores-Ortega, 528 U. S., at 483. When a defendant alleges his counsel’s deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial “would have been different” than the result of the plea bargain. That is because, while we ordinarily “apply a strong presumption of reliability to judicial proceedings,” “we cannot accord” any such presumption “to judicial proceedings that never took place.” Id., at 482–483 (internal quotation marks omitted).
We instead consider whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.” Id., at 483. As we held in Hill v. Lockhart, when a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U. S., at 59.
; cf., e.g., Hill, 474 U. S., at 59 (discussing failure to investigate potentially exculpatory evidence).
Lee, on the other hand, argues he can establish prejudice under Hill because he never would have accepted a guilty plea had he known that he would be deported as a result. Lee insists he would have gambled on trial, risking more jail time for whatever small chance there might be of an acquittal that would let him remain in the United States. 2 The Government responds that, since Lee had no viable defense at trial, he would almost certainly have lost and found himself still subject to deportation, with a lengthier prison sentence to boot. Lee, the Government contends, cannot show prejudice from accepting a plea where his only hope at trial was that something unexpected and unpredictable might occur that would lead to an acquittal.
529 U. S. 362, 391 (2000) (internal quotation marks omitted); Strickland, 466 U. S., at 695. And, more fundamentally, the Government overlooks that the inquiry we prescribed in Hill v. Lockhart focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.
A defendant without any viable defense will be highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial. But that is not because the prejudice inquiry in this context looks to the probability of a conviction for its own sake. It is instead because defendants obviously weigh their prospects at trial in deciding whether to accept a plea. See Hill, 474 U. S., at 59. Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if the Government offers one.
533 U. S. 289–323 (2001). When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For example, a defendant with no realistic defense to a charge carrying a 20-year sentence may nevertheless choose trial, if the prosecution’s plea offer is 18 years. Here Lee alleges that avoiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time. He says he accordingly would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at trial.
. Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.
In the unusual circumstances of this case, we conclude that Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation. There is no question that “deportation was the determinative issue in Lee’s decision whether to accept the plea deal.” Report and Recommendation, at 6–7; see also Order, at 14 (noting Government did not dispute testimony to this effect). Lee asked his attorney repeatedly whether there was any risk of deportation from the proceedings, and both Lee and his attorney testified at the evidentiary hearing below that Lee would have gone to trial if he had known about the deportation consequences. See Report and Recommendation, at 12 (noting “the undisputed fact that had Lee at all been aware that deportation was possible as a result of his guilty plea, he would . . . not have pled guilty”), adopted in relevant part in Order, at 15.
There is no reason to doubt the paramount importance Lee placed on avoiding deportation. Deportation is always “a particularly severe penalty,” Padilla, 559 U. S., at 365 (internal quotation marks omitted), and we have “recognized that ‘preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence,’ ” id., at 368 (quoting St. Cyr, 533 U. S., at 322; alteration and some internal quotation marks omitted); see also Padilla, 559 U. S., at 364 (“[D]eportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (footnote omitted)). At the time of his plea, Lee had lived in the United States for nearly three decades, had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents—both naturalized American citizens. In contrast to these strong connections to the United States, there is no indication that he had any ties to South Korea; he had never returned there since leaving as a child.
The Government argues, however, that under Padilla v. Kentucky, a defendant “must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Id., at 372. The Government contends that Lee cannot make that showing because he was going to be deported either way; going to trial would only result in a longer sentence before that inevitable consequence. See Brief for United States 13, 21–23.
We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time. See id., at 6. Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.
Lee’s claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence. Accordingly we conclude Lee has demonstrated a “reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U. S., at 59.
The judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
Justice Gorsuch took no part in the consideration or decision of this case.
Justice Thomas, with whom Justice Alito joins except for Part I, dissenting.
The Court today holds that a defendant can undo a guilty plea, well after sentencing and in the face of overwhelming evidence of guilt, because he would have chosen to pursue a defense at trial with no reasonable chance of success if his attorney had properly advised him of the immigration consequences of his plea. Neither the Sixth Amendment nor this Court’s precedents support that conclusion. I respectfully dissent.
559 U. S. 356, 388 (2010) (Scalia, J., joined by Thomas, J., dissenting). I would therefore affirm the Court of Appeals on the ground that the Sixth Amendment does not apply to the allegedly ineffective assistance in this case.
Because the Court today announces a novel standard for prejudice at the plea stage, I further dissent on the separate ground that its standard does not follow from our precedents.
. See ante, at 5; Brief for Petitioner 16; Brief for United States 15. The Court in Strickland held that a defendant may establish a claim of ineffective assistance of counsel by showing that his “counsel’s representation fell below an objective standard of reasonableness” and, as relevant here, that the representation prejudiced the defendant by “actually ha[ving] an adverse effect on the defense.” 466 U. S., at 688, 693.
To establish prejudice under Strickland, a defendant must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. Strickland made clear that the “result of the proceeding” refers to the outcome of the defendant’s criminal prosecution as a whole. It defined “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Ibid. (emphasis added). And it explained that “[a]n error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id., at 691 (emphasis added).
The parties agree that this inquiry assumes an “objective” decisionmaker. Brief for Petitioner 17; Brief for United States 17. That conclusion also follows directly from Strickland. According to Strickland, the “assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.” 466 U. S., at 695. It does not depend on subjective factors such as “the idiosyncrasies of the particular decisionmaker,” including the decisionmaker’s “unusual propensities toward harshness or leniency.” Ibid. These factors are flatly “irrelevant to the prejudice inquiry.” Ibid. In other words, “[a] defendant has no entitlement to the luck of a lawless decisionmaker.” Ibid. Instead, “[t]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” Ibid.
, it held that “the same two-part standard” from Strickland applies. 474 U. S., at 57 (repeating Strickland’s teaching that even an unreasonable error by counsel “ ‘does not warrant setting aside the judgment’ ” so long as the error “ ‘had no effect on the judgment’ ” (quoting 466 U. S., at 691)). To be sure, the Court said—and the majority today emphasizes—that a defendant asserting an ineffectiveness claim at the plea stage “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U. S., at 59. But that requirement merely reflects the reality that a defendant cannot show that the outcome of his case would have been different if he would have accepted his current plea anyway. 1 * In other words, the defendant’s ability to show that he would have gone to trial is necessary, but not sufficient, to establish prejudice.
The Hill Court went on to explain that Strickland’s two-part test applies the same way in the plea context as in other contexts. In particular, the “assessment” will primarily turn on “a prediction whether,” in the absence of counsel’s error, “the evidence” of the defendant’s innocence or guilt “likely would have changed the outcome” of the proceeding. 474 U. S., at 59. Thus, a defendant cannot show prejudice where it is “ ‘inconceivable’ ” not only that he would have gone to trial, but also “ ‘that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received.’ ” Ibid. (quoting Evans v. Meyer, 742 F. 2d 371, 375 (CA7 1984) (emphasis added)). In sum, the proper inquiry requires a defendant to show both that he would have rejected his plea and gone to trial and that he would likely have obtained a more favorable result in the end.
, the Court emphasized that “strict adherence to the Strickland standard” is “essential” when reviewing claims about attorney error “at the plea bargain stage.” Id., at 125. In that case, the defendant argued that his counsel was constitutionally ineffective because he had failed to seek suppression of his confession before he pleaded no contest. In analyzing the prejudice issue, the Court did not focus solely on whether the suppression hearing would have turned out differ-ently, or whether the defendant would have chosen to go to trial. It focused as well on the weight of the evidence against the defendant and the fact that he likely would not have obtained a more favorable result at trial, regardless of whether he succeeded at the suppression hearing. See id., at 129 (describing the State’s case as “formidable” and observing that “[t]he bargain counsel struck” in the plea agreement was “a favorable one” to the defendant compared to what might have happened at trial).
, took a similar approach. In that case, the Court extended Hill to hold that counsel could be constitutionally ineffective for failing to communicate a plea deal to a defendant. 566 U. S., at 145. The Court emphasized that, in addition to showing a reasonable probability that the defendant “would have accepted the earlier plea offer,” it is also “necessary” to show a “reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id., at 147; see also id., at 150 (the defendant “must show not only a reasonable probability that he would have accepted the lapsed plea but also a reasonable probability that the prosecution would have adhered to the agreement and that it would have been accepted by the trial court” (emphasis added)). In short, the Court did not focus solely on whether the defendant would have accepted the plea. It instead required the defendant to show that the ultimate outcome would have been different.
, is to the same effect. In that case, the Court concluded that counsel may be constitutionally ineffective by causing a defendant to reject a plea deal he should have accepted. Id., at 164. The Court again emphasized that the prejudice inquiry requires a showing that the criminal prosecution would ultimately have ended differently for the defendant—not merely that the defendant would have accepted the deal. The Court stated that the defendant in those circumstances “must show” a reasonable probability that “the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Ibid.
556 U. S. 778, 786 (2009) (internal quotation marks omitted). Those stages include not only “the entry of a guilty plea,” but also “arraignments, postindictment interrogation, [and] postindictment lineups.” Frye, supra, at 140 (citing cases). In those circumstances, the Court has not held that the prejudice inquiry focuses on whether that stage of the proceeding would have ended differently. It instead has made clear that the prejudice inquiry is the same as in Strickland, which requires a defendant to establish that he would have been better off in the end had his counsel not erred. See 466 U. S., at 694.
The majority misapplies this Court’s precedents when it concludes that a defendant may establish prejudice by showing only that “he would not have pleaded guilty and would have insisted on going to trial,” without showing that “the result of that trial would have been different than the result of the plea bargain.” Ante, at 5, 6 (internal quotation marks omitted). In reaching this conclusion, the Court relies almost exclusively on the single line from Hill that “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U. S., at 59. For the reasons explained above, that sentence prescribes the threshold showing a defendant must make to establish Strickland prejudice where a defendant has accepted a guilty plea. In Hill, the Court concluded that the defendant had not made that showing, so it rejected his claim. The Court did not, however, further hold that a defendant can establish prejudice by making that showing alone.
. There, the Court considered a defendant’s claim that his attorney failed to file a notice of appeal. See id., at 474. The Court observed that the lawyer’s failure to file the notice of appeal “arguably led not to a judicial proceeding of disputed reliability,” but instead to “the forfeiture of a proceeding itself.” Id., at 483. The Court today observes that petitioner’s guilty plea meant that he did not go to trial. Ante, at 5. Because that trial “ ‘never took place,’ ” the Court reasons, we cannot “ ‘apply a strong presumption of reliability’ ” to it. Ante, at 5–6 (quoting Flores-Ortega, supra, at 482–483). And because the presumption of reliability does not apply, we may not depend on Strickland’s statement “that ‘[a] defendant has no entitlement to the luck of a lawless decisionmaker.’ ” Ante, at 8 (quoting 466 U. S., at 695). This point is key to the majority’s conclusion that petitioner would have chosen to gamble on a trial even though he had no viable defense.
The majority’s analysis, however, is directly contrary to Hill, which instructed a court undertaking a prejudice analysis to apply a presumption of reliability to the hypothetical trial that would have occurred had the defendant not pleaded guilty. After explaining that a court should engage in a predictive inquiry about the likelihood of a defendant securing a better result at trial, the Court said: “As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the ‘idiosyncrasies of the particular decisionmaker.’ ” 474 U. S., at 59–60 (quoting 466 U. S., at 695). That quote comes from the same paragraph in Strickland as the discussion about the presumption of reliability that attaches to the trial. In other words, Hill instructs that the prejudice inquiry must presume that the foregone trial would have been reliable.
The majority responds that Hill made statements about presuming a reliable trial only in “discussing how courts should analyze ‘predictions of the outcome at a possible trial,’ ” which “will not always be ‘necessary.’ ” Ante, at 10, n. 3 (quoting Hill, 474 U. S., at 59–60). I agree that such an inquiry is not always necessary—it is not necessary where, as in Hill, the defendant cannot show at the threshold that he would have rejected his plea and chosen to go to trial. But that caveat says nothing about the application of the presumption of reliability when a defendant can make that threshold showing.
423 U. S. 61, n. 2 (1975) (per curiam) (emphasis deleted). Guilty pleas, like completed trials, are therefore entitled to the protections against collateral attack that the Strickland prejudice standard affords.
Finally, the majority does not dispute that the prejudice inquiry in Frye and Lafler focused on whether the defendant established a reasonable probability of a different outcome. The majority instead distinguishes those cases on the ground that they involved a defendant who did not accept a guilty plea. See ante, at 7, n. 1. According to the majority, those cases “articulated a different way to show prejudice, suited to the context of pleas not accepted.” Ibid. But the Court in Frye and Lafler (and Hill, for that matter) did not purport to establish a “different” test for prejudice. To the contrary, the Court repeatedly stated that it was applying the “same two-part standard” from Strickland. Hill, supra, at 57 (emphasis added); accord, Frye, 566, U. S., at 140 (“Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland”); Lafler, 566 U. S., at 162–163 (applying Strickland).
The majority today abandons any pretense of applying Strickland to claims of ineffective assistance of counsel that arise at the plea stage. It instead concludes that one standard applies when a defendant goes to trial (Strickland); another standard applies when a defendant accepts a plea (Hill); and yet another standard applies when counsel does not apprise the defendant of an available plea or when the defendant rejects a plea (Frye and Lafler). That approach leaves little doubt that the Court has “open[ed] a whole new field of constitutionalized criminal procedure”—“plea-bargaining law”—despite its repeated assurances that it has been applying the same Strickland standard all along. Lafler, supra, at 175 (Scalia, J., dissenting). In my view, we should take the Court’s precedents at their word and conclude that “[a]n error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466, U. S., at 691.
Applying the ordinary Strickland standard in this case, I do not think a defendant in petitioner’s circumstances could show a reasonable probability that the result of his criminal proceeding would have been different had he not pleaded guilty. Petitioner does not dispute that he possessed large quantities of illegal drugs or that the Government had secured a witness who had purchased the drugs directly from him. In light of this “overwhelming evidence of . . . guilt,” 2014 WL 1260388, *15 (WD Tenn., Mar. 20, 2014), the Court of Appeals concluded that petitioner had “no bona fide defense, not even a weak one,” 825 F. 3d 311, 316 (CA6 2016). His only chance of succeeding would have been to “thro[w] a ‘Hail Mary’ at trial.” Ante, at 8. As I have explained, however, the Court in Strickland expressly foreclosed relying on the possibility of a “Hail Mary” to establish prejudice. See supra, at 3. Strickland made clear that the prejudice assessment should “proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” 466 U. S., at 695.
In the face of overwhelming evidence of guilt and in the absence of a bona fide defense, a reasonable court or jury applying the law to the facts of this case would find the defendant guilty. There is no reasonable probability of any other verdict. A defendant in petitioner’s shoes, therefore, would have suffered the same deportation consequences regardless of whether he accepted a plea or went to trial. He is thus plainly better off for having accepted his plea: had he gone to trial, he not only would have faced the same deportation consequences, he also likely would have received a higher prison sentence. Finding that petitioner has established prejudice in these circumstances turns Strickland on its head.
The Court’s decision today will have pernicious consequences for the criminal justice system. This Court has shown special solicitude for the plea process, which brings “stability” and “certainty” to “the criminal justice system.” Premo, 562 U. S., at 132. The Court has warned that “the prospect of collateral challenges” threatens to undermine these important values. Ibid. And we have explained that “[p]rosecutors must have assurance that a plea will not be undone years later,” lest they “forgo plea bargains that would benefit defendants,” which would be “a result favorable to no one.” Id., at 125.
The Court today provides no assurance that plea deals negotiated in good faith with guilty defendants will remain final. For one thing, the Court’s artificially cabined standard for prejudice in the plea context is likely to generate a high volume of challenges to existing and future plea agreements. Under the majority’s standard, defendants bringing these challenges will bear a relatively low burden to show prejudice. Whereas a defendant asserting an ordinary claim of ineffective assistance of counsel must prove that the ultimate outcome of his case would have been different, the Court today holds that a defendant who pleaded guilty need show only that he would have rejected his plea and gone to trial. This standard does not appear to be particularly demanding, as even a defendant who has only the “smallest chance of success at trial”—relying on nothing more than a “ ‘Hail Mary’ ”—may be able to satisfy it. Ante, at 7, 8. For another, the Court does not limit its holding to immigration consequences. Under its rule, so long as a defendant alleges that his counsel omitted or misadvised him on a piece of information during the plea process that he considered of “paramount importance,” ante, at 10, he could allege a plausible claim of ineffective assistance of counsel.
In addition to undermining finality, the Court’s rule will impose significant costs on courts and prosecutors. Under the Court’s standard, a challenge to a guilty plea will be a highly fact-intensive, defendant-specific undertaking. Petitioner suggests that each claim will “at least” require a “hearing to get th[e] facts on the table.” Tr. of Oral Arg. 7. Given that more than 90 percent of criminal convictions are the result of guilty pleas, Frye, 566 U. S., at 143, the burden of holding evidentiary hearings on these claims could be significant. In circumstances where a defendant has admitted his guilt, the evidence against him is overwhelming, and he has no bona fide defense strategy, I see no justification for imposing these costs.
For these reasons, I would affirm the judgment of the Court of Appeals. I respectfully dissent.


Justia › US Law › Case Law › Massachusetts Case Law › Massachusetts Supreme Judicial Court Decisions › 2017 › Anderson v. National Union Fire Insurance Co. of Pittsburgh Pa.
Odin Anderson, his wife, and his daughter (collectively, Plaintiffs) filed personal injury action for injuries Odin suffered after being struck by a bus owned by Partners Healthcare Systems that was being driven by one of its employees. Plaintiffs then filed a separate action against Partner’s insurers and claims representatives. A jury awarded Odin $2,961,000 in damages in the personal injury action and awarded Odin’s wife and daughter $110,000 each. At a subsequent jury-waived trial, a judge found that the insurers and claims representatives violated Mass. Gen. Laws ch. 93A and Mass. Gen. Laws ch. 176D by their misconduct. The judge awarded Plaintiffs treble damages using as the “amount of the judgment” to be multiplied the combined amount of the underlying tort judgment and the accrued postjudgment interest on that judgment. The appeals court affirmed. The Supreme Judicial Court vacated the judgment, holding that, in a case where the amount of actual damages to be multiplied due to a wilful or knowing violation of Mass. Gen. Laws ch. 93A or Mass. Gen. Laws ch. 176D are based on the amount of an underlying judgment, that amount does not include postjudgment interest.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 5571030; SJCReporter@sjc.state.ma.us SJC-12108 ODIN ANDERSON & others1 vs. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA & others.2 Middlesex. Present: October 6, 2016. - February 2, 2017. Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Lowy, Budd, JJ. Consumer Protection Act, Insurance, Unfair or deceptive act, Offer of settlement, Damages. Insurance, Settlement of claim. Damages, Consumer protection case, Interest, Punitive. Interest. Judgment, Interest. Practice, Civil, Judgment, Damages, Interest. Civil action commenced in the Superior Court Department on March 13, 2003. The case was heard by Brian A. Davis, J., and motions to alter or amend the judgment were also heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. 1 Kerstin Anderson and Katarina Anderson, by her father and next friend, Odin Anderson. 2 American International Group Technical Services, Inc., & AIG Claims Services, Inc. 2 Kathleen M. Sullivan for National Union Fire Insurance Company of Pittsburgh PA. Leonard H. Kesten (Richard E. Brody also present) for the plaintiffs. GAZIANO, J. In this appeal, we consider the proper measure of punitive damages to be assessed against defendants who engage in unfair or deceptive insurance settlement practices in violation of G. L. c. 176D, § 3, and G. L. c. 93A, § 9 (3). The plaintiffs -- Odin Anderson, his wife, and his daughter -- filed a personal injury action in the Superior Court for serious injuries Odin3 suffered after being struck by a bus owned by Partners Healthcare Systems, Inc. (Partners), that was being driven by one of its employees. The plaintiffs filed a separate action, under G. L. c. 176D, and G. L. c. 93A, against Partner's insurers and claims representatives; proceedings in that action were stayed pending resolution of the underlying tort claims. After a trial, a Superior Court jury awarded Anderson $2,961,0004 in damages in the personal injury action, and awarded his wife and daughter $110,000 each. At a subsequent, jury-waived trial, a different Superior Court judge found that the insurers and claims representatives violated G. L. c. 93A and G. L. c. 176D by their "egregious," "deliberate or callously indifferent" 3 Because the plaintiffs share a last name, we refer to them by their first names. 4 This amount was later reduced by forty-seven per cent based on the jury's finding of comparative negligence. 3 actions, "designed to conceal the truth, improperly skew the legal system and deprive the Andersons of fair compensation for their injuries for almost a decade." Based on these findings, the judge concluded that the insurers' and claims representatives' "misconduct warrants the maximum available sanction . . . , both as punishment for what transpired and as a deterrent to similar conduct in the future." He awarded the plaintiffs treble damages, using as the "amount of the judgment" to be multiplied the combined amount of the underlying tort judgment and the accrued postjudgment interest on that judgment. See G. L. c. 93A, § 9 (3); G. L. c. 176D, § 3 (9) (f) (where violation of G. L. c. 176D is wilful, damages are to be multiplied pursuant to G. L. c. 93A, § 9 ). The Appeals Court affirmed the judgment of liability and the amount of the award of damages, in an unpublished memorandum and order issued pursuant to its rule 1:28. See Anderson v. National Fire Ins. Co. of Pittsburgh PA, 88 Mass. App. Ct. 1117 (2015). We granted the defendants' application for further appellate review, limited to the issue whether postjudgment interest was included properly in the "amount of the judgment" to be multiplied under G. L. c. 93A, § 9 (3). We conclude that in a case where the amount of actual damages to be multiplied due to a wilful or knowing violation of G. L. c. 93A or G L. 4 c. 176D are based on the amount of an underlying judgment, that amount does not include postjudgment interest. 1. Background. On September 2, 1998, while crossing Staniford Street in Boston, Odin was struck and injured by a bus owned by Partners and operated by Partners' employee Norman Rice. As a result of the collision, he sustained serious injuries, including a fractured skull and intracerebral hemorrhage, that ultimately required more than one year of medical treatment. At the time of the accident, Partners and Rice were insured under primary and excess policies issued by National Union Fire Insurance Company of Pittsburgh PA. American International Group Claims Services, Inc., the primary insurer, and American International Group Technical Services, Inc., the excess insurer, were responsible for adjusting claims on these policies. The plaintiffs, through counsel, sought to reach a settlement agreement with the defendants. The defendants rejected the plaintiffs' demand for settlement and declined to enter into settlement negotiations. As a result, in May, 2001, the plaintiffs filed a personal injury action against Partners and Rice, claiming negligent operation of a motor vehicle, negligent infliction of emotional distress, and loss of consortium. In March, 2003, the plaintiffs filed a separate 5 action against all of the defendants under G. L. c. 176D, § 3, and G. L. c. 93A, § 9 (3), alleging wilful and egregious failure to conduct a reasonable investigation of the plaintiffs' claims, and failure to effectuate a prompt, fair, and equitable settlement, notwithstanding that liability had become "reasonably clear" by the time the plaintiffs filed their initial complaint. Proceedings in the second action were stayed, on the parties' joint motion, pending resolution of the underlying tort action. Trial in the tort case took place in June and July of 2003. The jury found that Odin had suffered $2,961,000 in damages but that he was comparatively negligent for forty-seven per cent of his injuries, thereby reducing the award of damages to $1,569,330.5 Judgment entered for Odin on July 10, 2003, in the amount of $2,244,588.93; the total amount included costs and mandatary prejudgment interest, as required under G. L. c. 231, § 6B, of approximately $450,000. The defendants appealed to the Appeals Court from certain evidentiary rulings and from the judge's instructions on comparative negligence. In August, 2008, the Appeals Court affirmed the judgment, Anderson v. Rice, 72 Mass. App. Ct. 1114 5 The jury also awarded $110,000 each to Kerstin and Katarina, Odin's wife and daughter. In April, 2007, the parties reached an agreement to settle the loss of consortium claims, and Kerstin and Katarina each received $204,569.13. 6 (2008), and we thereafter denied the defendants' application for further appellate review, see 452 Mass. 1107 (2008). In December, 2008, the defendants paid the amount of the damages due to Odin on the underlying tort judgment, as well as the five years of statutorily-mandated postjudgment interest accrued on that judgment between its date of entry in the Superior Court and the issuance of the Appeals Court's opinion. The amount ultimately paid to Odin totaled $3,252,857.80, which included $1,284,243.17 in postjudgment interest. In September, 2013, a second Superior Court judge conducted a ten-day jury-waived trial on the G. L. c. 176D and G. L. c. 93A action. His decision containing findings of fact, rulings of law, and an order for judgment issued in April, 2014. The judge found that the defendants violated G. L. c. 176D, § 3 (9) (d), by failing to "conduct a reasonable investigation . . . based on all available evidence," including by suppressing unfavorable evidence and offering fictitious evidence; failing to "effectuate prompt, fair and equitable settlement of claims in which liability . . . ha[d] become reasonably clear"; and pursuing an unreasonable appeal of the underlying personal injury judgment. The judge also concluded that the defendants' violations of G. L. c. 176D had been wilful and egregious, warranting an award of punitive damages under G. L. c. 93A, § 9 (3). The judge determined that the amount to be multiplied 7 under G. L. c. 93A, § 9 (3), was double the amount of the underlying personal injury judgment that had entered in 2003, combined with the postjudgment interest that had accrued between the date of entry and the date of the defendants' payment in 2008. The parties filed motions to modify the judgment, pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974). The plaintiffs asserted that the judge's doubling of the amount of the underlying 2003 judgment was inconsistent with his stated purpose to impose "maximum available sanctions." They argued that the maximum award of punitive damages available under G. L. c. 93A, § 9 (3), is three times the amount of the judgment rendered in the underlying tort action. The defendants argued, by contrast, that the judge improperly included postjudgment interest in the amount to be multiplied. In June, 2014, the judge issued an amended judgment that increased the amount of the punitive damages to three times the amount of the underlying judgment. He also rejected the defendants' "unduly restrictive view" of punitive damages under G. L. c. 93A, § 9 (3), and retained the postjudgment interest in the amount to be multiplied.6 6 The judge awarded the plaintiffs punitive damages in the amounts of $9,758,573.40 to Odin and $613,707.39 each to Kerstin and Katarina. Of that amount, approximately $4.2 million was 8 2. Discussion. The statutory framework governing the plaintiffs' claims is well established. See Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 494-495 (2012) (describing interplay between related G. L. c. 176D, § 3  [f], and G. L. c. 93A, § 9 , claims). An insurance company commits an unfair claim settlement practice if it "[f]ail[s] to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear." § 3 (9) (f). G. L. c. 176D, "[A]ny person whose rights are affected by another person violating the provisions of [G. L. c. 176D, § 3 (9) (f),] is entitled to bring an action to recover for the violation under G. L. c. 93A, § 9" (quotations omitted). supra at 494. See Rhodes, If the fact finder concludes that an insurer has failed to effectuate a prompt, fair, and equitable settlement, causing injury, the plaintiff is entitled to the greater of actual damages or statutory damages of twenty-five dollars. G. L. c. 93A, § 9 (3). Where an insurer's action was "willful or knowing" (or, as here, both), the judge must award multiple damages. Id. General Laws c. 93A, § 9 (3), requires that the judge "shall" award punitive damages of "up to three but not less than two times" the actual damages in the underlying action. The statute further provides that "[f]or the purposes attributable to the trebling of approximately $1.4 million in postjudgment interest. 9 of this chapter, the amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence." (emphasis supplied). Id. The question before us is whether "the amount of the judgment" that serves as the measure of "actual damages" to be doubled or trebled under G. L. c. 93A, § 9 (3), includes the amount of any postjudgment interest that accrued on that judgment before it was paid. In examining this issue we consider (a) the plain language of G. L. c. 93A, § 9 (3); (b) the nature of pre- and postjudgment interest; and (c) the purpose of the punitive damages available under the statute. a. Statutory language. As with every statutory analysis, our interpretation of G. L. c. 93A, § 9 (3), begins with the plain language of the statute. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). "All the words of a statute are to be given their ordinary and usual meaning, and each clause or phrase is to be construed with reference to every other clause or phrase without giving undue emphasis to any one group of words, so that, if reasonably possible, all parts shall be construed as consistent with each other so as to form a harmonious enactment effectual to accomplish its manifest purpose." Worcester v. College Hill Props., LLC, 465 Mass. 134, 139 (2013), quoting Selectmen of Topsfield v. State Racing 10 Comm'n, 324 Mass. 309, 312–313 (1949). Although the "[w]ords and phrases" of the statutory text "shall be construed according to the common and approved usage of the language," "technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning." G. L. c. 4, § 6, Third. Where "the language is clear and unambiguous, it is conclusive as to the intent of the Legislature." Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 253 (2015). In common understanding, a "judgment" is "a legal decision; an order or sentence given by a judge or law court"; or "a debt, resulting from a court order." Webster's New Universal Unabridged Dictionary 990 (2d ed. 1983). This is consistent with the more technical, legal definition of a "judgment" as a "court's final determination of the rights and obligations of the parties in a case." 2014). Black's Law Dictionary 970 (10th ed. See Shawmut Community Bank, N.A. v. Zagami, 419 Mass. 220, 225 (1994), quoting Gibbs Ford, Inc. v. United Truck Leasing Co., 399 Mass. 8, 11 (1987) ("the term 'judgment' refers to the final adjudicating act of the judge 'disposing of all claims against all the parties to the action'"). The statutory language in question here, "the amount of the judgment," does not provide any express guidance as to whether the "judgment" to be multiplied for wilful or knowing misconduct 11 encompasses postjudgment interest. clarified elsewhere in the statute. Nor is this question Where, as here, the meaning of the statutory language is "sufficiently ambiguous to support multiple, rational interpretations, . . . we look to the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated" (citations and quotations omitted). Kain v. Department of Envtl. Protection, 474 Mass. 278, 286 (2016). b. Nature of pre- and postjudgment interest. As the Legislature has enacted two statutes mandating the payment of interest on judgments, see G. L. c. 231, § 6B (prejudgment interest); G. L. c. 235, § 8 (postjudgment interest), we turn to them for guidance.7 See Connors v. Annino, 460 Mass. 790, 796 (2011), quoting Canton v. Commissioner of the Mass. Highway Dep't, 455 Mass. 783, 791–792 (2010) (we attempt to "construe statutes that relate to the same subject matter as a harmonious whole and avoid absurd results"). See, e.g., Canton, supra (construing differing provisions of Massachusetts Environmental 7 In common usage, "interest" is defined as "money paid for the use of money." Webster's New Universal Unabridged Dictionary 956 (2d ed. 1983). In legal understanding, "interest" is "compensation . . . allowed by law for the use or detention of money, or for the loss of money by one who is entitled to its use." Black's Law Dictionary 935 (l0th ed. 2014). Interest is thus, by its nature, an amount charged and owed that is distinct from the amount of the principal. 12 Protection Act). "If the language of the statute is 'fairly susceptible [of] a construction that would lead to a logical and sensible result' . . . we will construe [it] so 'as to make [it an] . . . effectual piece of legislation in harmony with common sense and sound reason.'" Commonwealth v. Williams, 427 Mass. 59, 62, (1998), quoting Commonwealth v. A Juvenile, 16 Mass. App. Ct. 251, 254 (1983). With respect to prejudgment interest, G. L. c. 231, § 6B, provides that, in a tort case involving personal injury or damage to property, "there shall be added by the clerk of court to the amount of damages interest thereon . . . from the date of commencement of the action." (emphasis supplied). Because prejudgment interest is "added . . . to the amount of damages," it becomes an integral part of the amount of the judgment itself. See, e.g., R.W. Granger & Sons v. J & S Insulation, Inc., 435 Mass. 66, 84 (2001) (prejudgment interest forms part of underlying judgment and therefore is multiplied in computing award under G. L. c. 93A); City Coal Co. of Springfield, Inc. v. Noonan, 424 Mass. 693, 695 (1997), S.C., 434 Mass. 709 (2001) (prejudgment interest forms part of judgment for purpose of calculating postjudgment interest). Prejudgment interest is included in the judgment because it compensates the prevailing party for the time value of money accrued before resolution of the legal dispute, and thus represents an "integral component of 13 compensatory damages." Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370, 376 (2012). By contrast, postjudgment interest "is not an element of compensatory damages." Id. Postjudgment interest serves to provide compensation to the prevailing party for delay in payment after a nonprevailing party's underlying obligation has been established. See Chapman v. University of Mass. Med. Ctr., 423 Mass. 584, 587 (1996) (postjudgment interest is not part of underlying claim). Thus, the postjudgment interest statute, G. L. c. 235, § 8, provides that "[e]very judgment for the payment of money shall bear interest from the day of its entry . . ." (emphasis supplied). See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835-836 (1990) ("purpose of postjudgment interest is to compensate the successful plaintiff for being deprived of compensation for the loss from the time between the ascertainment of the damage and the payment by the defendant" [citation omitted]). Put another way, in every context other than G. L. c. 93A, while prejudgment interest is added to a judgment and therefore forms an integral part of it, postjudgment interest is borne by the judgment and is separate and distinct from it. The plaintiffs urge that we read the requirement of G. L. c. 235, § 8, as indicating that, in the context of G. L. c. 93A, postjudgment interest is part of the judgment itself, subject to 14 doubling or trebling for wilful or knowing misconduct. In our view, however, the language of the statute implies the opposite conclusion. That a judgment "bears" interest suggests that interest is not an inherent part of the judgment itself but, rather, something accrued in addition. See Black's Law Dictionary 183 (10th ed. 2014) (defining to "bear" as to "support or carry" or to "produce as yield"). That a judgment supports, carries, or produces interest indicates that the interest is separate and distinct from the judgment. The statutory language is consistent with this common understanding of its words: the Legislature chose not to include in the statute mandating postjudgment interest that such interest is to be "added . . . to the amount of damages," in direct contrast to the language it chose with respect to prejudgment interest.8 See G. L. c. 231, § 6B. The view that postjudgment interest is separate and distinct from the underlying amount of the damages is supported by statutory provisions and rules of civil procedure in other contexts, such as those governing the form of executions. 8 Although the issues confronting us were different, and the question of postjudgment interest was not the focus of the decisions, on two prior occasions we have treated postjudgment interest as properly excluded from the "amount of the judgment" for purposes of a multiplied damage calculation under G. L. c. 93A, § 9 (3). See Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 498-500 (2012); R.W. Granger & Sons v. J & S Insulation, Inc., 435 Mass. 66, 84 (2001). 15 General Laws c. 235, § 8, provides that an execution of a money judgment shall "specify the day upon which judgment is entered, and shall require the collection or satisfaction thereof with interest from the date of its entry." Likewise, Mass. R. Civ. P. 54 (f), 382 Mass. 822 (1980), provides that "[e]very judgment for the payment of money shall bear interest up to the date of payment of said judgment" (emphasis supplied).9 If postjudgment interest were, like prejudgment interest, a part of the underlying amount of damages, there would be no need separately to specify both sums in an execution. c. Purpose of punitive damages under G. L. c. 93A § 9 (3). We recognize, as we have previously, that multiple damages awarded under G. L. c. 93A, § 9 (3), are punitive in nature. See Rhodes, 461 Mass. at 498 ("There is general consensus among courts and commentators that the 1989 amendment [establishing the award of multiple damages] was intended to increase the potential penalties for insurers who engaged in unfair claim settlement practices"); id. at 503. The statute is thus a "penal statute" akin to other statutes "designed to enforce the law by punishing offenders, rather than simply by enforcing 9 Rule 54 (f) of the Massachusetts Rules of Civil Procedure, 382 Mass. 822 (1980), provides that where an "execution or order directing the payment of [a] judgment" is issued, the amount of "interest from the date of entry of . . . judgment to the date of [the] execution or order shall . . . be computed by the clerk, and the amount of such interest shall be stated on the execution or order." 16 restitution to those damaged." See Collatos v. Boston Retirement Bd., 396 Mass. 684, 686 (1986) (construing pension forfeiture statute). The trial judge included postjudgment interest in the amount to be trebled based on his determination that the "maximum available sanction" was warranted. Thus, we consider the plaintiffs' contention that the "amount of the judgment" to be multiplied properly should include postjudgment interest, in order to discourage defendants from "holding the verdict money 'hostage' during the appellate process" and to effectuate the legislative purpose of providing an additional, substantial sanction to discourage others from similar misconduct. For several reasons, we conclude that the plaintiffs' contention that the Legislature must have intended to include postjudgment interest in "the amount of the judgment to be multiplied" in order to protect injured parties against bad faith appeals by insurance companies is unwarranted.10 10 The Relying on Boyer v. Bowles, 316 Mass. 90, 95 (1944), as did the Appeals Court, the plaintiffs argue that postjudgment interest, while not computed when a judgment is entered, is part of the judgment because it is definitively derived from a known mathematical calculation based on the amount of the initial award. In 1944, this court observed that "the meaning of the final decree is plain. Though not computed, the amount of interest to be paid was certain, on the principle that whatever can be made certain by mere arithmetic is already certain. Substantially the decree is as though the interest had been computed and stated, and added to the principal." Id. That case, however, predated the provision for multiple damages in 17 Legislature established the statutory twelve per cent postjudgment interest rate specifically to protect prevailing parties during the appellate process. In addition, several other statutory and procedural means exist to discourage frivolous or bad-faith appeals. See, e.g., G. L. c. 211A, § 15 (costs and interest for delay caused by frivolous appeal); G. L. c. 231, § 6F (awards of costs, expenses, and attorney's fees as sanction for advancing claim or defense found to be "insubstantial, frivolous and not advanced in good faith"); Mass. R. A. P. 25, as appearing in 376 Mass. 949 (1979) (damages and interest where delay result of frivolous appeal). These also include G. L. c. 93A, § 9 (3), itself, claims under which may be triggered by postjudgment conduct. See Rhodes, 461 Mass. at 495 (considering postjudgment violations of c. 93A). Ultimately, we find it persuasive that the Legislature did not specify explicitly in the postjudgment interest statute that such interest is to be "added . . . to the amount of damages," as it did with regard to prejudgment interest in G. L. c. 231, § 6B. Moreover, under the rule of lenity, given the absence of an express textual provision or an indication of legislative G. L. c. 93A § 9 (3), by more than forty years, and discussed both pre- and postjudgment interest. The statement that the plaintiffs reference was made with regard to prejudgment interest. See Boyer, supra. 18 intent, G. L. c. 93A, § 9 (3), cannot be read implicitly to allow (or to require, as the multiplication of an award of damages for wilful misconduct is mandatory) doubling or trebling an award of postjudgment interest. See Libby v. New York, N.H. & H.R.R., 273 Mass. 522, 525–526 (1930). In sum, the plaintiffs have advanced no reason other than further punishing a defendant whose violation was wilful or knowing to suggest that, in enacting G. L. c. 93A, the Legislature intended a departure from the treatment of postjudgment interest in other contexts. We therefore decline to read into the statute an additional measure of punishment that the Legislature did not set forth explicitly. Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126 (2006) ("We do not read into the statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had an option to, but chose not to include"). 3. Conclusion. The judgment is vacated, and the matter is remanded to the Superior Court for entry of a revised judgment, consistent with this opinion. So ordered.


text:
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This Court has jurisdiction of this case, for, even if the requisite amount is not involved, the meaning and effect of a provision of the Philippine Organic Act of July 1, 1902, c. 1369, 32 Stats. 691, is involved.
The provision of § 45 of the Organic Act of the Philippine Islands relating to title to mines by prescription refers to conditions as they were before the United States came into power and had in view the natives of the islands and intention to do them liberal justice.
Courts are justified in dealing liberally with natives of the Philippines in dealing with evidence of possession. Carino v. Insular Government, 212 U. S. 449.
The limitation of size of mining claims in § 22 of the Philippine Organic Act applies only to claims located after the passage of that act.
Under § 28 of the Philippine Organic Act, a valid location could not be made if the land was occupied by one who was already in possession before the United States came into power, and the claim of one locating under those conditions does not constitute an adverse claim under § 45 of that act.
A right to an instrument that will confer a title in a thing is a right to the thing itself, and a statutory right to apply for a patent to mining lands is a right that equity will specifically enforce.
Although, if seasonably taken, an objection to the form of remedy might be sustained, after trial on the merits, it comes too late.
This is a bill in equity, brought by the appellees to restrain the appellant from setting up title to certain gold mines in the Province of Benguet, or interfering with the same, and to obtain an account of the gold heretofore taken from the mines. The trial court rendered a judgment or decree granting an injunction as prayed. Exceptions were taken on the grounds that the findings of fact were against the weight of evidence, and that the judgment was against the law. The Supreme Court reexamined the evidence, and affirmed the decree below. Then the case was brought here by appeal.
namely, a section of the organic act (§ 45, concerning mining titles in the Philippines), is "involved," within the meaning of § 10 of the same act, which determines the jurisdiction of this Court. Act of July 1, 1902, c. 1369. 32 Stat. 691, 695. The meaning and effect of that section are in question, and our construction even has some bearing upon our opinion that the findings of the two courts below should not be reopened. For, apart from the general rule prevailing in such cases, De la Rama v. De la Rama, 201 U. S. 303, 201 U. S. 309, we shall refer to the law for special reasons why those findings should not be disturbed in a case like this.
"That where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations of the Philippine Islands, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this act, in the absence of any adverse claim; but nothing in this act shall be deemed to impair any lien which may have attached in any way whatever prior to the issuance of a patent."
the islands, and to have intended to do liberal justice to them. By § 16, their occupancy of public lands is respected and made to confer rights. In dealing with an Igorrot of the Province of Benguet, it would be absurd to expect technical niceties, and the courts below were quite justified in their liberal mode of dealing with the evidence of possession and the possibly rather gradual settling of the precise boundaries of the appellees' claim. See Carino v. Insular Government, 212 U. S. 449. At all events, they found that the appellees and their ancestors had held the claim and worked it to the exclusion of all others down to the bringing of this suit, and that the boundaries were as shown in a plan that was filed and seems to have been put in evidence before the trial came to an end.
It cannot be said that there was no evidence of the facts found, for the plaintiff Fianza testified in terms that his grandfather and father had owned the mines in question, and that he and the other appellees owned them in their turn; that they had all worked the mines, that no one else had claimed them, and that the appellant had interfered with his possession, and, when he put up a sign, had torn it down. No doubt his working of the mines was slight and superficial according to our notions, and the possession may not have been sharply asserted as it would have been with us, whether from Igorrot habits or from the absence of legal title under Spanish law. But it sufficiently appears that the appellee's family had held the place in Igorrot fashion, and to deny them possession in favor of Western intruders probably would be to say that the natives had no rights under the section that an American was bound to respect. Whatever vagueness there may have been in the boundaries, it is plain that the appellant attempted to locate a claim within them, and Fianza testified that the plan to which we have referred followed the boundaries that his father showed to him. It is said that the claim is larger than is allowed by § 22. But the limitation of that section applies only to claims "located after the passage of this act."
had held possession and had worked their claims for much more than the period required by § 45 before the moment when the statute went into effect. It is to be assumed that the possession and working continued down to within two months of that moment. But the appellant says that he entered and staked his claims before that time, and then was in possession of them. On this ground, as well as others that are disposed of by the findings below, he contends that there was an adverse claim within the meaning of the act. But the ground in question was not unoccupied, and therefore he could not make a valid claim under § 28. See also Act of March 2, 1901, c. 803, 31 Stat. 895, 910. He refiled a location in October, 1902, but he did not and could not make the required affidavit because of the prior occupation, and at that date, Fianza was within the act unless he already had been deprived of its benefits. Moreover, it is found that Fianza's possession continued down to the bringing of this suit. This is justified by the evidence, and is not contradicted by the bill. The bill, to be sure, alleges that Reavis, in 1900, illegally entered and deprived the appellees of their mines, and that he still continues to maintain his unjust claim. But further on it alleges that, in the spring of 1902, Reavis was directed by the Governor of Benguet not to molest the appellees; that he then waited in Manila, and, after the promulgation of the law, "again entered," set stakes, and filed a notice of location. So that the bill does not mean that he was continuously in possession, or that he was in possession when the law took effect. We are of opinion that there was no adverse claim that would have prevented the appellees from getting a patent under § 45. See Belk v. Meagher, 104 U. S. 279, 104 U. S. 284; Altoona Quicksilver Mining Co. v. Integral Quicksilver Mining Co., 114 Cal. 100, 105. See also McCowan v. Maclay, 16 Mont. 234, 239-240.
to adopt from the local law any other requirement as to the possession than the length of time for which it must be maintained. Otherwise, in view of the Spanish and American law before July 1, 1902, no rights could be acquired, and the section would be empty words, whereas, as we have said before, another section of the act, § 16, still further shows the intention of Congress to respect native occupation of public lands.
Again, it is urged that the section, of itself, confers no right other than to apply for a patent. But a right to an instrument that will confer a title in a thing is a right to have the thing. That is to say, it is a right of the kind that equity specifically enforces. It may or may not be true that, if the objection had been taken at the outset, the plaintiffs would have been turned over to another remedy, and left to apply for a patent; but, after a trial on the merits, the objection comes too late. See Perego v. Dodge, 163 U. S. 160, 163 U. S. 164; Reynes v. Dumont, 130 U. S. 354, 130 U. S. 395.
Some objections were taken to the exclusion of evidence. But, apart from the fact that they do not appear to have been saved in the exceptions taken to the supreme court and irrespective of its admissibility, the evidence offered could not have affected the result. An inquiry of Fianza whether he claimed the mines mentioned in the suit or those measured by the surveyor who made the plan to which we have referred was met by the allowance of an amendment, claiming according to the plan. A question to another of the plaintiffs whether she saw any Igorrots working for Reavis would have brought out nothing not admitted by the bill, that Reavis did, for a time, intrude upon the mines in suit. Upon the whole case, we are of opinion that no sufficient ground is shown for reversing the decree, and it is affirmed.