G ONLINE COMPANION TO ACCOMPANY ELDER LAW Rosenberg, Bickes & Johnson, Chartered, Decatur (Wayne L. Bickes, Decatur, of counsel), for appellees. KLUCZYNSKI, Justice: Plaintiff, Gertrude

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Chapter 2

Peter K. Dementas v. Estate of Jack Tallas, 764 P.2d 628; 95 Utah Adv. Rep. 28 (1988).

Williams v. Crickman, 405 N.E.2d 799 (1980)

Burch v. George, 27 Cal. Rptr. 2d 165 (1994).

In the Matter of the Estate of Julius Weinstock, et al. v. Usdan, 386 N.Y.S.2d 1 (1976).

81 Ill.2d 105, 405 N.E.2d 799, 39 Ill.Dec. 820

Supreme Court of Illinois.Gertrude R. WILLIAMS, Appellant,

v.Jerald A. CRICKMAN, Ex’r, et al., Appellees.

No. 52591.May 30, 1980.

Residuary legatee of a will filed will contest seeking to invalidate one paragraph of the will, allegedly executedas result of undue influence. The Circuit Court of Piatt County, John P. Shonkwiler, J., dismissed the action withprejudice. The Appellate Court for the Fourth District, 75 Ill.App.3d 1105, 35 Ill.Dec. 863, 399 N.E.2d 1391,affirmed, and leave to appeal was granted. The Supreme Court, Kluczynski, J., held that: (1) those portions ofthe will alleged to be the product of undue influence could be stricken and the remainder of the will allowedto stand if those portions of the will could be separated without defeating testator’s intent or destroying thetestamentary scheme, and (2) legatee was an “interested person” under the Probate Act and was therefore eligible tocontest the validity of the will in that she would benefit from partial invalidation of the will.Reversed and remanded.

Residuary legatee, who brought will contest alleging undue influence as to one provision of will, was “interestedperson” under Probate Act and therefore eligible to contest validity of will in that she would benefit from par-tial invalidation of the will. S.H.A. ch. 110 1/2, § 8-1; Ill.Rev.Stat.1977, ch. 110 1/2, § 8-3.

Charles G. Roth and Phillip B. Lenzini, Peoria (Kavanagh, Scully, Sudow, White & Frederick, Peoria, of counsel), forappellant. Rosenberg, Rosenberg, Bickes & Johnson, Chartered, Decatur (Wayne L. Bickes, Decatur, of counsel), for appellees.

KLUCZYNSKI, Justice:Plaintiff, Gertrude R. Williams, a residuary legatee under an instrument admitted to probate purporting to be thelast will and testament of Florence M. East, filed a will contest in the circuit court of Piatt County. In the action,she sought a declaration that one paragraph in the instrument, allegedly executed as a result of the undue influ-ence of defendant Jerald A. Crickman and decedent’s attorney, Wayne L. Bickes, is null and void. The circuitcourt ruled that the sole issue in a will contest is the validity of the instrument as a whole and that it was without

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authority to invalidate one provision only. In addition, the court found that plaintiff, not an heir of decedent,could take only under the provisions of the instrument and therefore ruled that she was not an interested personunder section 8-1 of the Probate Act of 1975 (Ill.Rev.Stat.1977, ch. 110 1/2, par. 8-1) and dismissed the actionwith prejudice. The appellate court, relying upon Snyder v. Steele (1922), 304 Ill. 387, 136 N.E. 649, affirmed therulings of the circuit court (75 Ill.App.3d 1105, 35 Ill.Dec. 863, 399 N.E.2d 1391) in an unpublished order issuedpursuant to Supreme Court Rule 23 (73 Ill.2d R. 23). Plaintiff appealed to this court pursuant to Supreme CourtRule 315 (73 Ill.2d R. 315), and we granted leave to appeal.

Florence M. East, a resident of Piatt County, died on May 17, 1978. On June 1, 1978, defendant Crickman filed apetition for probate of a will and the issuance of letters testamentary in the circuit court of Piatt County. Crickmanalleged in his petition that Florence M. East had died testate and that he had been nominated, in a will dated March14, 1968, as executor of decedent’s estate. On July 13, 1978, the court entered an order admitting the instrument toprobate and issued letters testamentary to Crickman. Plaintiff, a residuary legatee under the instrument, filed a willcontest in the circuit court of Piatt County on October 12, 1978. Plaintiff alleged in her complaint that Crickmanhad influenced decedent’s actions as her farm manager and financial advisor for many years prior to the execu-tion of this instrument. The complaint further charged that Crickman had employed Wayne L. Bickes, the attorneywho drafted decedent’s will, as his own attorney for many years prior to the execution of this instrument and thatdecedent, as a result of her age, health, and business competence, was unable to resist the combined efforts ofCrickman and Bickes to influence her to create an option in favor of defendant Crickman to purchase certainfarmland. In addition, the complaint charged that both Crickman and Bickes stood in a fiduciary and confidentialrelationship to decedent and that they had breached their duties in influencing decedent to create the option topurchase at an unconscionably low price. The complaint further charged that the acts of undue influence ofCrickman and Bickes affected only that provision in the will which created the option in favor of Crickman.

The instrument which purports to be the last will and testament of decedent contains bequests to various rela-tives, friends and charitable institutions. The residuary clause of the instrument contains 22 separate provisionsfor distribution of the residue of decedent’s estate. The portion of the instrument which plaintiff seeks to inval-idate creates in favor of defendant Crickman an option to purchase 320 acres of farmland alleged by plaintiff tohave a value of $1,280,000. The terms of the trust allow defendant Crickman to purchase 320 acres of farmlandfor a total purchase price of $200,000, to be paid in installments of $8,000 per year, for a period of 26 years, atan interest rate of 3% per annum. The instrument also provides that, if defendant Crickman fails to exercise theoption within six months of the death of Miss East or forfeits his interest under the terms of the trust, the prop-erty is to be sold and the proceeds distributed among the residuary legatees.

The determination of whether plaintiff is an interested person under section 8-1 of our probate act and there-fore eligible to contest the validity of this testamentary instrument turns on the question of whether the reliefsought, a declaration of the partial invalidity of the instrument, can be granted. Plaintiff does not desire invali-dation of the entire will; as a residuary legatee who is not an heir of decedent, plaintiff would gain only byinvalidation of a portion of the will. The narrow issue thus presented by this appeal is whether our courts havethe power to declare a testamentary instrument partially invalid under the provisions of our probate act whereonly part of the instrument is alleged to be the product of undue influence.

Defendant Crickman, in seeking to sustain the judgments of the circuit and appellate courts, relies principallyupon the decision of this court in Snyder v. Steele (1922), 304 Ill. 387, 136 N.E. 649. He argues that our decisionin Snyder stands for the proposition that section 8-3 of the Probate Act of 1975 (Ill.Rev.Stat.1977, ch. 110 1/2,par. 8-3) limits the issue in a will contest charging undue influence to the validity of the testamentary instrumentin its entirety. Crickman asserts that the only issue presented by this appeal is whether Snyder should be over-ruled. In response to this question, Crickman contends that the construction of our probate act in Snyder, andthe subsequent reenactment of substantially similar provisions by the legislature, presents us with a question leftproperly to legislative determination. In support of this position, Crickman relies upon the well-settled principleof statutory construction that the reenactment of a statute which has been judicially construed is an adoption ofthe construction by the legislature, since the legislature is presumed to know the construction given and, byreenactment, is assumed to have intended the new statute to have the same effect.

Plaintiff argues, relying principally upon the decision of this court in Wolf v. Bollinger (1872), 62 Ill. 368, that thepower to determine whether the instrument produced is the will of the testator includes the power to pass uponthe validity of part of the instrument as well as the whole. Plaintiff contends that our decision in Wolf, a case

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which construed language substantially similar to the language contained in section 8-3 of the Probate Act of1975 (Ill.Rev.Stat.1977, ch. 110 1/2, par. 8-3) is determinative of whether our courts have the power to declarepart of a testamentary instrument invalid. In support of this position, plaintiff points to the decisions of this courtin which specific provisions of a will were declared invalid and the remaining portions were allowed to stand.See Beal v. Higgins (1921), 299 Ill. 229, 132 N.E. 542 (invalidation of a dispository provision under the rule againstperpetuities); Wood v. Wood (1914), 263 Ill. 285, 104 N.E. 1108 (invalidation of a fraudulently inserted provisiondesignating an individual as heir); Wombacher v. Barthelme (1902), 194 Ill. 425, 62 N.E. 800 (invalidation of aprovision naming the executor because of improper insertion); Lawrence v. Smith (1896), 163 Ill. 149, 45 N.E. 259 (invalidation of a dispository provision under the rule against perpetuities).

We agree with defendant that “ ‘the legislature is presumed to know the construction the statute has been given,and by re-enactment, is assumed to have intended for the new statute to have the same effect.’ ” (Stryker v. StateFarm Mutual Automobile Insurance Co. (1978), 74 Ill.2d 507, 513, 24 Ill.Dec. 832, 834, 386 N.E.2d 36, 38, quot-ing People ex rel. County of Kane v. Crawford (1971), 48 Ill.2d 227, 230, 269 N.E.2d 300, 302.) We also agreethat considerations of stare decisis weigh heavily in the area of statutory construction, especially where the leg-islature is free to change court interpretations of its legislation. In determining whether a case is binding,however, this court has the power and the duty under the doctrine of stare decisis to reexamine pertinent legalconcepts. (Bradley v. Fox (1955), 7 Ill.2d 106, 111, 129 N.E.2d 699.) We agree with plaintiff that where the courthas itself adopted conflicting interpretations of the same statute, the duty of the court in such a case is to clarifyand resolve its previous decisions, *112 and we should not assume that the legislature has approved an inter-pretation which is obviously conflicting.

In the case relied upon by Crickman, Snyder v. Steele, defendant Steele, an attorney, had drafted an instrumentin which he was named executor of the estate and a legatee. Plaintiff, an heir of decedent, sought to have thewill declared null and void due to the exertion of undue influence by defendant. In the first appeal in the cause,Snyder v. Steele (1919), 287 Ill. 159, 122 N.E. 520, the court set aside a verdict of the jury which sustained thevalidity of the will. The court held that a fiduciary relationship existed between defendant and the testator, thata presumption of undue influence existed, and that there was no evidence to rebut this presumption. In addi-tion, the court held that the evidence did not show that the will was attested in the manner prescribed by statute,and the cause was remanded for a new trial.

Subsequent to this appeal, defendant Steele resigned as executor of the estate and renounced his legacy under theinstrument. On remand, the probate court allowed Steele to testify, and the jury returned a verdict sustaining the validity of the will. On appeal, this court held in Snyder v. Steele (1922), 304 Ill. 387, 390-93, 136 N.E. 649, thatsection 7 of the evidence act (Smith’s Ill.Rev.Stat.1921, ch. 51, par. 7) did not permit a witness, otherwise incompe-tent to testify by virtue of his interests adverse to decedent, to become competent to testify by release of his inter-est under the will if the release were made for the purpose of testifying.

Notwithstanding the adverse ruling on Steele’s effort to testify, other interested parties sought to sustain the validityof the will as to other bequests and argued that only those portions of the will tainted by undue influence shouldbe stricken. The court stated that, under the statute, the sole issue in a will contest is whether or not the instrument“is the will of the testator, and the question is as to the validity of the will as a whole. Testimony which defeats onedefendant, one devisee or one legatee defeats all, and a judgment against one is necessarily a judgment against all.”(304 Ill. 387, 394, 136 N.E. 649, 651.) In reaching this conclusion, the court found persuasive prior cases which pre-cluded a legatee under the will from testifying against another unless they held a joint interest. (McCune v. Reynolds (1919), 288 Ill. 188, 123 N.E. 317; Campbell v. Campbell (1891) 138 Ill. 612, 28 N.E. 1080; McMillan v.McDill (1884), 110 Ill. 47.) Under those cases, the testimony of one joint tenant is admissible against all. The courtmade no reference to Wolf v. Bollinger (1872), 62 Ill. 368, and cases similar thereto which allow partial invalidation.

Our examination of the opinion in Snyder leads us to conclude that the language of the court which addressedthe issue of partial validity of the instrument under the statute is dicta and in error. A holding of the court in thefirst decision in the cause, that the instrument in question had not been attested to in the manner prescribed bythe statute, renders superfluous the discussion of partial validity in the second decision; there was no competentevidence presented at the second trial of the cause on the question of attestation which would warrant a differentconclusion on that issue. It is true that this dicta is entitled to consideration by the court as persuasive, but it isnot binding authority within the rule of stare decisis. Department of Public Works & Buildings v. Butler Co.(1958), 13 Ill.2d 537, 545, 150 N.E.2d 124.

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We are not, however, persuaded by the reasoning employed by the court on the question of partial invalidity.In refusing to recognize the possibility of a partial invalidation, the court stated that “the greater weight of author-ity,” including Illinois precedents, suggested the view that the will could only be passed upon as a whole. (Snyderv. Steele (1922), 304 Ill. 387, 394, 136 N.E. 649.) Our review of the decisions of other jurisdictions (see Annot.,64 A.L.R.3d 261 (1975)) and the decisions of this State which preceded *114 Snyder, beginning with Wolf v.Bollinger (1872), 62 Ill. 368, reveals that this statement is erroneous. (See Beal v. Higgins (1921), 299 Ill. 229,132 N.E. 542; Wood v. Wood (1914), 263 Ill. 285, 104 N.E. 1108; Wombacher v. Barthelme (1902), 194 Ill. 425,62 N.E. 800; Lawrence v. Smith (1896), 163 Ill. 149, 45 N.E. 259.) As one writer said of Snyder’s reference to otherauthorities, “No case has been found in any other jurisdiction to warrant such an assertion.” (See Note, WillsUndue Influence Only Clauses Affected Invalidated, 32 Yale L.J. 294 (1923).) That the reasoning in Snyder wasin accord with dicta in Teter v. Spooner (1917), 279 Ill. 39, 116 N.E. 673, Gum v. Reep (1916), 275 Ill. 503,114 N.E. 271, and Weston v. Teufel (1904), 213 Ill. 291, 72 N.E. 908, will not serve to support the proposition stated.(See 1 W. Page, Wills sec. 15.12, at 742 n.9 (3d rev. ed. 1960).) Further, the court’s reliance upon a rule ofevidence which allows a joint tenant to testify against other joint tenants so as to defeat their interests under awill was not proper.

Section 8-3 of the Probate Act of 1975 provides in relevant part:

“An issue shall be made whether or not the instrument produced is the will of the testator.” (Ill.Rev.Stat.1977,ch. 110 1/2, par. 8-3.)

Substantially similar language was construed in Wolf v. Bollinger (1872), 62 Ill. 368, 371, wherein this court stated:

“It is said that, under this sixth section, the issue is to be, whether the writing produced and probated is the willof the testator or not; that the instrument can only be passed upon as a whole, and that the court cannot adjudgea part to be, and a part not to be, the will of the testator. But this is a distinction which is only verbal; it doesnot exist in reason.

The power to try and determine whether the writing produced be the will of the testator or not, includes thepower to adjudge upon the validity of any part of the instrument, as well as the whole.“

Consistent with this construction, cases both before and after Snyder have recognized that part of an instrumentmay be declared invalid and the remainder allowed to stand where the invalid portions can be separated fromthe instrument as a whole without defeating the intent of the testator. (See Millikin National Bank v. Wilson(1931), 343 Ill. 55, 64-65, 174 N.E. 857, 861; Easton v. Hall (1926), 323 Ill. 397, 422-23, 154 N.E. 216, 224-25; Bealv. Higgins (1921), 299 Ill. 229, 233-35, 132 N.E.2d 542, 543-44; Wood v. Wood (1914), 263 Ill. 285, 292, 104 N.E. 1108,1111; Wombacher v. Barthelme (1902), 194 Ill. 425, 429-31, 62 N.E. 800, 802; Lawrence v. Smith (1896), 163 Ill.149, 162-66, 45 N.E. 259, 262-64; Wolf v. Bollinger (1872), 62 Ill. 368, 371.) We agree with plaintiff, for example,that if the contested provisions were fraudulently inserted by a third party, the court would have the power todeny probate to that provision alone (Wood v. Wood (1914), 263 Ill. 285, 104 N.E. 1108). We can perceive nological reason for treating those provisions of a will alleged to be the product of undue influence in a differentmanner. We therefore hold that, in a will contest in which it is alleged that part of a will is a product of undueinfluence, those portions of the will alleged to be the product of undue influence may be stricken and the remainderof the will allowed to stand if those portions of the will can be separated without defeating the testator’s intentor destroying the testamentary scheme. “The validity of any portion of a will may be passed upon.” (3 W. James,Illinois Probate Law & Procedure sec. 90.9, at 129 (1951), citing Wolf v. Bollinger (1872), 62 Ill. 368, and Woodv. Wood (1914), 263 Ill. 285, 104 N.E. 1108. Accord, 1 H. Horner, Probate Practice & Estates sec. 95, at 194(4th ed. 1976); C. McCulloch & F. McCulloch, Manual of the Law of Will Contests in Illinois sec. 72, at 40 (1929).)As is stated by Page, the key inquiry in determining whether partial invalidation should be allowed is whetherthe undue influence affected only a limited portion of the will and whether the testator would have intendedthat the entire will fail because of the invalidation of one provision:

“If a part of the will is caused by undue influence, and such undue influence does not affect the remaining provisions ofthe will, the validity of the provisions which are not caused by such undue influence depends, in part, on whether it ispossible to ascertain which portions are caused by the undue influence, and whether such portions, if ascertained, can beheld to be invalid without destroying the intention of the testator. If it is not practicable to ascertain what portions of the



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will were caused by undue influence and what were free from it, or if effect cannot be given to such provisions as are notcaused by undue influence, without defeating the intention of the testator, the entire will is invalid.

Where it can be shown that a part of the will was caused by undue influence, and that the rest of the will wasnot caused thereby, and the part of such will caused by undue influence can be separated from the rest, leav-ing it intelligible and complete in itself, it is held in most states, that only such part of the will as is caused byundue influence is invalid, and the rest is valid.“ (1 W. Page, Wills sec. 15.12, at 741 (3d rev. ed. (1960), citing,inter alia, Wombacher v. Barthelme (1902), 194 Ill. 425, 62 N.E. 800.)

On remand, the circuit court should consider these questions as they relate to this case, i. e., whether the allegedundue influence affected only the provision granting the option to defendant Crickman and, if so, whether inval-idation of that provision would defeat the entire testamentary scheme as intended by Miss East.

We accordingly hold that plaintiff, who as a residuary legatee would benefit from partial invalidation of thisinstrument, is an interested person within the meaning of the Probate Act of 1975. To the extent that Snyder v.Steele (1922), 304 Ill. 387, 136 N.E. 649, is inconsistent with our decision herein, it is overruled. The ruleexpressed in the Snyder case is one which would effectively immunize from judicial scrutiny the unconscionableoverreachings of those in a fiduciary relationship to a testator, and it is a rule which, under equitable principles,should not be countenanced. Our probate act should not be construed in such a way as to facilitate its use as ameans by which a fiduciary can defraud those who hold him in confidence; “the door to relief should not beclosed and the opportunity to show the wrong should not be denied” (5 A. Scott, Trusts sec. 489.6, at 3488(3d ed. 1967)). Under the facts here alleged, the circuit court improperly dismissed plaintiff’s will contest; a causeof action for partial invalidation is stated and is recognized in Illinois.

The judgments of the circuit and appellate courts are reversed, and the cause is remanded to the circuit court ofPiatt County for further proceedings not inconsistent with the views expressed herein.

Judgments reversed; cause remanded.

7 Cal.4th 246, 866 P.2d 92, 27 Cal.Rptr.2d 165

Supreme Court of California,In Bank.

Marlene BURCH, Petitioner and Appellant,v.

Randall GEORGE, Objector and Respondent.No. S025369.Feb. 7, 1994.

Spouse who was legatee under will and beneficiary under trust instrument brought special proceeding to deter-mine whether proposed state and federal lawsuits would trigger “no contest” provision in trust instrument, so asto invalidate dispositions made to her. The Superior Court, Ventura County, No. P-65955, Robert R. Willard, J.,entered judgment that both actions would trigger “no contest” provision. Appeal was taken. The Court of Appealaffirmed. The Supreme Court granted review, superseding Court of Appeal’s opinion. The Supreme Court, Baxter, J.,held that: (1) “no contest” clause was properly enforceable against a surviving spouse who, under terms of a willor trust instrument, bringing contest against that instrument based on assertion of community property rights toestate property, and (2) statute authorizing “no contest” provision was not preempted by ERISA.Affirmed.Mosk and Kennard, JJ., dissented and filed opinion.

Hirschtick, Chenen, Cohen & Linden, Chenen, Cohen & Linden, Marvin M. Lager and C. Kelly McCourt, MarinaDel Ray, for petitioner and appellant.

Mitchell, Silberberg & Knupp, Allan P. Cutrow, Kathleen L. McAchran, Los Angeles, Nordman, Cormany, Hair &Compton, Glen M. Reiser and Larry L. Hines, Oxnard, for objector and respondent.

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BAXTER, Justice.Marlene Burch (Marlene) became the fifth wife of Frank Burch (Frank) in December 1985. In 1988, Frank exe-cuted his integrated estate plan, which consisted of a will and an inter vivos trust. The beneficiaries of the trustincluded Marlene, Frank’s elderly mother, his children from a prior marriage, and other relatives. Prior to hisdeath in March 1989, Frank transferred substantial assets to the trust.

To discourage litigation over the trust and its distribution scheme, Frank inserted a “no contest clause” in thetrust instrument. After Frank’s death, Marlene petitioned the probate court to determine whether she may, withoutviolating the no contest clause, proceed with plans to litigate her rights as a surviving spouse to certain assets inthe trust estate under California’s community property laws and under the federal Employee Retirement IncomeSecurity Act of 1974 (29 U.S.C. § 1001 et seq.).

We conclude, based on the language of the trust instrument and the circumstances surrounding its execution,that Marlene’s proposed actions would amount to a contest in violation of the instrument’s no contest clause. Wefurther conclude that enforcement of the clause against Marlene, in the event she decides to pursue her claims,is fully consistent with California law and is not preempted by the federal act. As we shall explain, such enforce-ment will in no way prevent or hinder Marlene from obtaining everything to which she may be entitled undercommunity property and federal laws, but will simply mean that if Marlene chooses to pursue those benefits shemay not, at the same time, obtain in addition the portion of Frank’s separate property that was conditionally leftto her under his trust.

FACTS

Marlene and Frank married in December 1985. This was Frank’s fifth marriage. Prior to the marriage, Frank waspart owner of a successful car dealership called Pacific Coast Ford (Pacific Coast). During the marriage, Frankbecame sole owner of Pacific Coast and a participant in its pension plan.

In July and August of 1988, Frank met with his attorney and instructed him to create an integrated estate planconsisting of a will and an inter vivos trust known as the Frank Burch Family Trust. Pursuant to the trust instrumentexecuted by Frank, the trust estate was to be divided into six separate subsidiary trusts upon Frank’s death. Fiveof these subsidiary trusts were designated for the benefit of Frank’s blood relatives, including his elderly mother,his children and a grandchild from a prior marriage. The sixth subsidiary trust was a marital trust in favor ofMarlene. Prior to his death, Frank transferred various assets to the trust, including interests in his Pacific Coaststock, his Pacific Coast pension plan account, and six life insurance policies purchased by the pension plan.

To discourage litigation over his estate plan, Frank included a no contest clause in the trust instrument.FN1 Underthe terms of the clause, any beneficiary who sought to contest or otherwise void, nullify or set aside the trustinstrument or any of its provisions would forfeit all right to take under the instrument.

FN1. Frank also inserted a no contest clause into his will.

Frank died in March 1989. At the time of his death, the assets that allegedly belonged to Frank were valued at morethan $7 million. Outside the trust, Marlene received nearly $800,000 in joint tenancy property and $200,000 in lifeinsurance benefits. Under the trust, Marlene would be provided with substantial assets, consisting of Frank’s MercedesBenz automobile, a 53-foot yacht, a $1 million beach house still under construction, and life insurance proceeds of$60,000. In addition, Marlene would receive a life estate in the income of the marital trust that would pay $6,000 permonth. The marital trust was to be funded with $1.6 million of the proceeds derived from the sale of the Pacific Coaststock. Also under the trust, the balance of approximately $4 million, including most of the proceeds from the sale ofthe Pacific Coast stock and the entire pension plan death benefit of $169,000, would pass to Frank’s blood relatives.

After Frank’s death, Marlene petitioned the probate court pursuant to former Probate Code section 21305 FN2 todetermine whether she could, without violating the no contest clause, proceed with a proposed state actionagainst the trust to litigate her community property rights in the trust estate and a proposed federal action againstthe administrators of the Pacific Coast pension plan to litigate her rights under the Employee Retirement IncomeSecurity Act of 1974 ( 29 U.S.C. § 1001 et seq.). Relying on the language of the trust instrument, and the uncon-troverted declarations of Frank’s attorney and one of the trustees of the trust, the probate court ruled, amongother things, that both of the proposed actions would trigger the trust instrument’s no contest clause becausethey were “designed to thwart the basic intent of [Frank’s] estate plan.”



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FN2. Under former Probate Code section 21305, subdivision (a), a beneficiary could seek an advance ruling fromthe probate court to determine whether “a particular motion, petition or other act by the beneficiary would bea contest within the terms of a no contest clause.” Former section 21305 is continued in section 21320 of the newProbate Code without substantive change. (20 Cal.Law Revision Com.Rep. (1990) p. 1994.)

The Court of Appeal affirmed this portion of the judgment.FN3 Additionally, the court rejected Marlene’s argu-ment that the passive operation of California’s no contest law interferes with her rights under the federal act andis therefore preempted. We granted review to consider the important issues presented herein.FN4

FN3. Based on a concession by a trustee of the trust, the Court of Appeal reversed that aspect of the probatecourt’s judgment that held that the no contest clause would be triggered by a cause of action in Marlene’s pro-posed state court complaint that sought reimbursement from the trust for house construction costs.

FN4. While this matter was pending here, the parties informed us that the case had been settled. Nonetheless, theyhave requested that we decide the issues in this case in the interest of public policy and clarification of the law.

We have inherent power to retain a matter, even though it has been settled and is technically moot, where theissues are important and of continuing interest. (See, e.g., Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d858, 868-869, fn. 8, 239 Cal.Rptr. 626, 741 P.2d 124, and cases cited therein.) Because the issues at hand meetboth criteria, we have concluded it is appropriate for us to retain and decide the matter.

DISCUSSION

This case presents essentially three questions. First, would Marlene’s proposed state and federal complaints triggerthe no contest clause contained in the trust instrument? Second, if the clause would be triggered, does Californialaw provide a basis for not enforcing the clause against Marlene with respect to the claims based on her com-munity property rights? Third, if the clause is enforceable against Marlene under California law, then does thefederal Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.) otherwise preclude its oper-ation to the extent pension benefits are at issue? We shall address these questions in order.

A. Would the No Contest Clause Be Triggered?

The interpretation of a will or trust instrument presents a question of law unless interpretation turns on thecredibility of extrinsic evidence or a conflict therein. (Estate of Dodge (1971) 6 Cal.3d 311, 318, 98 Cal.Rptr. 801,491 P.2d 385; Estate of Russell (1968) 69 Cal.2d 200, 213, 70 Cal.Rptr. 561, 444 P.2d 353; Poag v.Winston (1987)195 Cal.App.3d 1161, 1173, 241 Cal.Rptr. 330.) FN5 Since the record in the present case discloses no conflict inthe extrinsic evidence, and the parties have identified no issues of credibility, it is our duty to independently con-strue the trust instrument.

FN5. We note that for interpretative purposes, no distinction is made between inter vivos and testamentary trusts.(Brock v.Hall (1949) 33 Cal.2d 885, 889, 206 P.2d 360; Wells Fargo Bank v.Huse (1976) 57 Cal.App.3d 927, 932,129 Cal.Rptr. 522.)

An in terrorem or no contest clause in a will or trust instrument creates a condition upon gifts and dispositionsprovided therein. (See Estate of Lindstrom (1987) 191 Cal.App.3d 375, 381, 236 Cal.Rptr. 376.) In essence, a nocontest clause conditions a beneficiary’s right to take the share provided to that beneficiary under such an instru-ment upon the beneficiary’s agreement to acquiesce to the terms of the instrument. (See Estate of Hite (1909)155 Cal. 436, 441, 101 P. 443.)

No contest clauses are valid in California and are favored by the public policies of discouraging litigation andgiving effect to the purposes expressed by the testator. (Estate of Hite, supra, 155 Cal. at pp. 439-441, 101 P. 443;Estate of Black (1984) 160 Cal.App.3d 582, 586-587, 206 Cal.Rptr. 663.) Because a no contest clause results in aforfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly thetestator’s intent. (Estate of Watson (1986) 177 Cal.App.3d 569, 572, 223 Cal.Rptr. 14; Estate of Black, supra, 160Cal.App.3d at p. 587, 206 Cal.Rptr. 663; Estate of Kazian (1976) 59 Cal.App.3d 797, 802, 130 Cal.Rptr. 908.) FN6

FN6. In 1989, the Legislature enacted a series of statutes that codified much of the law governing enforcement of nocontest clauses. (Stats.1989, ch. 544, § 19, p. 1825.) These statutes were repealed and reenacted the following year.(Stats.1990, ch. 79, § 14, operative July 1, 1991.) Included in these reenacted statutes is a codification of the principle

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that a no contest clause is generally enforceable against a beneficiary who brings a contest within the terms of theclause (Prob.Code, § 21303 [subject to certain exceptions not applicable in this case] ), and the principle that in deter-mining the intent of a testator or other transferor, a no contest clause shall be strictly construed (id., § 21304).

“Whether there has been a ‘contest’ within the meaning of a particular no-contest clause depends upon the cir-cumstances of the particular case and the language used.” (Estate of Watson, supra, 177 Cal.App.3d at p. 572,223 Cal.Rptr. 14; Estate of Lindstrom, supra, 191 Cal.App.3d at p. 381, 236 Cal.Rptr. 376; Estate of Black, supra,160 Cal.App.3d at p. 587, 206 Cal.Rptr. 663.) “[T]he answer cannot be sought in a vacuum, but must be gleanedfrom a consideration of the purposes that the [testator] sought to attain by the provisions of [his] will.” (Estate ofKazian, supra, 59 Cal.App.3d at p. 802, 130 Cal.Rptr. 908.) Therefore, even though a no contest clause is strictlyconstrued to avoid forfeiture, it is the testator’s intentions that control, and a court “must not rewrite the [testa-tor’s] will in such a way as to immunize legal proceedings plainly intended to frustrate [the testator’s] unequivo-cally expressed intent from the reach of the no-contest clause.” (Ibid.)

With these principles to guide us, we must determine whether the filing of the proposed state complaint or theproposed federal complaint would constitute a contest within the meaning of the no contest clause contained inthe Frank Burch Family Trust instrument. These complaints are described in further detail below.

Marlene’s proposed state complaint names as defendants the trustees and beneficiaries of the Frank Burch FamilyTrust and its subsidiary trusts. This complaint alleges in relevant part that 100 percent of the stock in Pacific Coastand 100 percent of the proceeds of various life insurance policies purchased by Pacific Coast’s pension plan werepurportedly transferred into the Frank Burch Family Trust. It further alleges that under California communityproperty law, Marlene is the owner of one-half of these assets. The complaint seeks the return of her propertythrough various causes of action including declaratory relief, conversion and partition.

Marlene’s proposed federal complaint names only the Pacific Coast pension plan and its administrators as defendants.This complaint alleges that, under the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.)(hereafter ERISA) and the terms of the pension plan, Marlene is entitled as a surviving spouse to receive 100 percentof the pension plan death benefits, but that the plan administrators have wrongfully refused to pay any benefits toher. In the alternative, the complaint alleges that pursuant to community property law, Marlene is entitled to 50 per-cent of all of the death benefits and to 50 percent of the benefits payable under the life insurance policies purchasedby the pension plan. Finally, the complaint alleges that the administrators breached their fiduciary duties under thefederal act by unlawfully converting the disputed benefits and wrongfully failing to provide certain documentation.

In ascertaining Frank’s intentions, we look first to the terms of his trust instrument. Those pertinent to our inquiryinclude: (1) the preliminary recitals, which describe the trust estate; (2) article III, which describes the divisionof the trust estate upon the trustor’s death and directs its distribution; and (3) paragraph 12 of article IX, whichcontains the no contest clause. These provisions stipulate as follows.

The preliminary recitals provide in relevant part that the trustee “agrees to hold and administer the property listedon the attached ‘Schedule A’ and any other property added to the Trust Estate according to the terms of the Trustcreated by this instrument. Trustor states that the property subject to this Trust is his separate property and thathis interest therein, and in the proceeds and income therefrom, shall remain his separate property. All property nowor hereafter subject to this Trust shall constitute the Trust Estate and shall be held, managed and distributed ashereinafter provided.”

Article III directs that upon the trustor’s death, the trustee shall, after making certain specified distributions andpayments, divide the residue of the trust estate into six separate trusts. Pursuant to this article, 20 percent of thetrust estate goes to the marital trust and the remaining 80 percent is split among four other trusts designated forthe benefit of Frank’s children, his grandchild, and three children of his deceased sister. Proceeds from certainspecified life insurance policies go to a trust designated for the benefit of Frank’s mother.

Finally, the no contest clause provides in pertinent part: “In the event that any beneficiary under this Trust ··· seeks toobtain in any proceeding in any court an adjudication that this Trust or any of its provisions ··· is void, or seeksotherwise to void, nullify or set aside this Trust or any of its provisions, then the right of that person to take anyinterest given to him or her by this Trust shall be determined as it would have been determined had such person pre-deceased the execution of this trust instrument without issue.”



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Following the rule of strict construction (Estate of Watson, supra, 177 Cal.App.3d at p. 572, 223 Cal.Rptr. 14), wemust ascertain from these provisions whether Frank unequivocally intended that Marlene would forfeit the dis-tribution provided for her under the trust instrument in the event that she decides to pursue her interests as asurviving spouse against the trust estate. If this intention plainly appears, then it must be concluded that Marlene’sproposed actions would trigger the no contest clause.

It is reasonably clear from the recitals that the trustor intended for any and all property transferred to the trustto be subject to the distribution scheme set forth at article III of the trust instrument. Significantly, the recitalsspecifically state that the trustee is to hold and administer “the property listed on the attached ‘Schedule A’ andany other property added to the Trust Estate according to the terms of the Trust,” and that “[a]ll property nowor hereafter subject to this Trust shall constitute the Trust Estate and shall be held, managed and distributedas hereinafter provided.”

It is also reasonably clear from the trust terms that the trustor intended to dispose of the trust estate in whole,and that he intended to put his surviving spouse to an election between taking the distribution provided forher under the trust, or alternatively, renouncing that distribution and taking against the trust estate pursuantto her independent legal rights. This intention appears from the declaration in the recitals that the propertysubject to the trust is and is to remain the trustor’s “separate property.” (See Estate of Wolfe (1957) 48 Cal.2d 570,574-575, 311 P.2d 476; Estate of Vogt (1908) 154 Cal. 508, 512, 98 P. 265; Estate of Roach (1959) 176 Cal.App.2d 547,552-553, 1 Cal.Rptr. 454.)

As Witkin explains, “if the testator refers to the property bequeathed or devised in general terms withoutidentifying it as separate or community, it may be inferred that he intended only to dispose of his own inter-est (his separate property and one-half the community property), and no election is necessary, no matterhow liberal the provision is for the wife. [Citations.]” (12 Witkin, Summary of Cal. Law (9th ed. 1990) Willsand Probate, § 55, pp. 93-94.) On the other hand, “if the testator declares that all the property is his sepa-rate property, thus clearly indicating a belief that he is disposing of the entire estate, election is required.[Citations.] ‘It is of no concern that he was mistaken in his belief that the wife had no community interestin the property devised. His manifest intention to devise the estate as an entirety, and irrespective of anyright which might be asserted on behalf of the marital community, is the controlling factor.’ [Citation.]” (12 Witkin, supra, § 55, p. 94.)

In Estate of Wolfe, supra, 48 Cal.2d 570, 311 P.2d 476, we described the operative principle this way: “If the tes-tator purported to dispose of both his and his spouse’s share of the community property, and it appears that theintent of the testator will be thwarted by giving literal effect to the will while recognizing the community prop-erty rights of the surviving spouse, an election should be required. The purpose of the election is to adjust thedistribution of the property under the will to conform to the express or implied intention of the testator.”(48 Cal.2d at p. 574, 311 P.2d 476.) Furthermore, this principle is not limited to community property rights; it isalso applicable to any other kind of property right. ( Estate of Waters (1972) 24 Cal.App.3d 81, 85, 100 Cal.Rptr. 775[surviving spouse required to elect between taking under the will or asserting her joint tenancy rights to estateproperty].)

Although the trust instrument contains a separate property declaration that evinces an intention to force an elec-tion with respect to any asset placed in the trust estate, it is true, as Marlene asserts, that the trust instrumentdoes not expressly name the Pacific Coast stock, the pension plan benefits or the insurance policies as beingpart of the trust estate. FN7 The instrument refers to a list of assets on “Schedule A,” but that schedule was evi-dently never prepared.

FN7. We note two exceptions in this regard. The trust instrument specifically provides that the subsidiary trustin favor of Frank’s mother is to be funded with proceeds from the trustor’s life insurance policies issued byInterAmerican Life Insurance Company and New Jersey Life Insurance Company in the sums of $250,000 and$50,000, respectively. Therefore, the no contest clause would indisputably be triggered to the extent Marlenepursues her alleged community interests in the proceeds of these policies.

In this case, the trustor’s intentions are clear, even though the disputed assets were not listed in the trust instru-ment. First, as the trial court recognized, “[t]here was no requirement under decedent’s trust agreement that anyor all trust property be reflected in a ‘Schedule A,’ since the trust corpus by definition included ‘any other property

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added to the Trust Estate.’ ” Second, Frank apparently arranged to have each of the disputed assets added to thetrust estate before his death, thus reflecting deliberate action to place each of them squarely within the termsand conditions of the trust.

The extrinsic evidence in this case confirms our interpretation of the trust’s terms.FN8 This evidence is uncontro-verted that Frank transferred the disputed assets to the trust, that he intended that the trust dispose of these assets,and that any assertion of independent rights to these assets by Marlene would trigger the no contest clause.

FN8. Evidence of the circumstances surrounding the execution of the trust instrument is properly admissible toascertain its meaning and intent. (Prob.Code, § 6111.5; see also Estate of Russell, supra, 69 Cal.2d at pp. 206-207,212, 70 Cal.Rptr. 561, 444 P.2d 353; Estate of Basore (1971) 19 Cal.App.3d 623, 630, 96 Cal.Rptr. 874.) Contraryto the assertion made by the dissent (dis. opn. of Kennard, J.), post, at p. 185 of 27 Cal.Rptr.2d, p. 112 of 866P.2d resort to extrinsic evidence is appropriate in construing no contest clauses. As one authority relied upon bythe dissent acknowledges, “if it is relevant to the clause in question, virtually all evidence of the circumstancessurrounding the will’s execution may well be admissible to show the existence of an ambiguity and to help con-strue it.” (Garb, The In Terrorem Clause: Challenging California Wills (1979) 6 Orange County Bar J. 259, 262.)

A declaration offered by one of the trustees of the trust establishes that Frank transferred to the trust all of theissued and outstanding shares of stock of Pacific Coast, and that he designated the trust as beneficiary of the death benefits paid by the pension plan. The declaration also establishes that Frank purchased nine life insur-ance policies through the pension plan, and designated all but one of them to be paid either to the trust or topersons other than Marlene.

Another declaration submitted by the attorney who implemented Frank’s estate plan provides some context toFrank’s execution of that plan. According to the attorney, it was important to Frank that his estate plan providefor his living blood relatives, namely, his three children and a grandchild from a previous marriage, his mother,and the three children of his deceased sister. In connection with the estate planning, Frank discussed with thisattorney which assets were to be transferred to the trust, and identified, among other things, the Pacific Coaststock, various insurance policies and his interest in the pension plan.

The attorney further stated that Frank anticipated Marlene would assert claims against the assets that would con-stitute the trust estate, even though he considered them his separate property. Therefore, Frank intended “to pro-vide generously for Marlene with the hope that this would preclude claims by her upon his estate.” In accordancewith Frank’s plans, the trust instrument provided Marlene a distribution that would include an expensive home,a yacht, a Mercedes Benz automobile and income for life on a 20 percent share of the trust estate remaining aftercertain specified distributions were made. The instrument also contemplated that the property and interests leftto Marlene would be free from death taxes.

Finally, the attorney disclosed that Frank was aware he could not deny Marlene the legal right to assert claimsagainst his trust, or the assets transferred thereto. He added, however, that Frank intended, by the creation of hiselaborate estate plan, in combination with the separate property declaration and the no contest clause, to denyMarlene the right to assert ownership claims against the property transferred to the trust, while at the same timeretaining the generous benefits which were conditionally provided for her under that same instrument.

In the proceedings below, Marlene submitted no evidence to controvert the declarations of the trustee or theattorney. Although Marlene makes no present attempt to challenge the admissibility or credibility of their state-ments,FN9 she argues it is unclear whether Frank intended that the trust convey the disputed assets in light of thefollowing three facts. First, Schedule A was never completed and Frank expressed some uncertainty to the attor-ney regarding what assets were to be included in the trust. Second, Frank’s will, which was executed on thesame day as the trust instrument, contained a declaration that he intended to dispose of “all property to whichI am entitled by law to dispose of by will.” Third, Frank created and controlled Pacific Coast’s pension plan andgave her, as an eligible spouse, greater benefits thereunder than required by ERISA. He also never reduced thesebenefits although he made other changes to the plan, and the plan was not mentioned in either the trust instru-ment or the will.

FN9. In her opening brief on the merits, Marlene merely notes, without citation to authority, that the probatecourt erred in overruling her objections to the declarations submitted by the trust.



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In our view, none of these facts renders the trustor’s intentions unclear. To begin with, the fact that no ScheduleA was ever completed is of no consequence because, as we indicated previously, the trust corpus by definitionincludes “any other property added to the Trust Estate.” While the record shows that Frank may have been uncer-tain at one time as to the trust’s disposition of unspecified assets, it reveals no uncertainty regarding the PacificCoast stock, the pension plan benefits or the insurance policies.

Second, even though Frank’s will contained a statement that he intended to dispose of all property to which hewas “entitled by law to dispose of by will,” this statement creates no ambiguity because its application was lim-ited by its own terms to dispositions under the will. It is uncontroverted here that none of the disputed assetspassed to the trust under his will.FN10

FN10. We note that the above mentioned language appearing in the will reflects that the trustor knew how toexclude community property or any property allegedly belonging to Marlene or anyone else from the terms ofhis will. From this we can infer that the trustor would have included similar language in his trust if he intendedto make a similar exclusion with respect to his trust.

Third, we are not persuaded that Frank’s creation and control of the Pacific Coast pension plan evinces anyuncertainty of intention. We note that the pension plan was established and maintained for the benefit of allemployees of Pacific Coast and their eligible spouses, not just Frank and Marlene. The fact that Frank had thepower to amend the terms of the pension plan but never decreased the benefits to the eligible spouses of PacificCoast employees bears no logical relation to the inquiry here.

[12] Marlene next contends that her proposed federal action would not amount to a contest of the trust instru-ment because it seeks no relief directly from the trust or Frank’s estate. This contention is without merit. The nocontest clause expressly applies to the extent Marlene “seeks to obtain in any proceeding in any court an adju-dication that this Trust or any of its provisions ··· is void, or seeks otherwise to void, nullify or set aside this Trustor any of its provisions····” (Emphasis added.) Although the proposed federal complaint does not name the trustor Frank’s estate as defendants, it does seek recovery of the pension plan death benefits and life insurance ben-efits on the theory that these assets belong to Marlene and that they should not have been transferred to thetrust. If successful, the federal complaint, like the state complaint, would effectively nullify or thwart the provi-sions in the trust instrument that provide for the allocation of all assets placed in the trust estate to the varioussubsidiary trusts. It would similarly result in the nullification of Frank’s clearly stated intent that Marlene be putto an election of her independent rights to all property transferred to the trust. Since it is the intention of thetrustor that controls (see Estate of Kazian, supra, 59 Cal.App.3d at p. 802, 130 Cal.Rptr. 908), the mere absenceof the trust as a defendant in the proposed federal action is not determinative.

Finally, Marlene argues that the no contest clause would not be triggered by her proposed actions because pro-ceedings by beneficiaries to assert claims to property based upon a source of right independent of the will ortrust instrument, i.e., creditor’s claims, have been held not to be “contests” in a variety of cases. She relies prin-cipally on Estate of Watson, supra, 177 Cal.App.3d 569, 223 Cal.Rptr. 14, Estate of Black, supra, 160 Cal.App.3d582, 206 Cal.Rptr. 663, Estate of Schreck (1975) 47 Cal.App.3d 693, 121 Cal.Rptr. 218, and Estate of Dow (1957)149 Cal.App.2d 47, 308 P.2d 475.

These cases do not stand for the categorical proposition that any proceeding based upon a claim of right inde-pendent of a will or trust instrument is never a contest for purposes of the no contest law. The respective courtsin these cases simply followed the established rules for construing a no contest clause and determined that theparticular claims asserted were consistent with the respective testators’ intentions. These cases are factually dis-tinguishable and do not call for a different result in the matter before us.

In Estate of Black, supra, 160 Cal.App.3d 582, 206 Cal.Rptr. 663, a woman who had cohabited with the testatorfor nearly 18 years sought a ruling that the filing of a proposed petition to require conveyance of property in thetestator’s estate under theories of implied domestic partnership would not violate the no contest clause ofthe testator’s will under which she received a mobilehome and a trust to maintain the mobilehome. In that case, thewill described the testator’s estate in general terms and contained a statement that the testator intended to dis-pose of the property which he had the right to dispose of by will. (160 Cal.App.3d at p. 591, 206 Cal.Rptr. 663.)Based on the language of the will, the Court of Appeal held that the proposed petition did not violate the nocontest clause because the basis for the petitioner’s claim was that the testator did not intend to dispose of bywill that property which represented her domestic partnership interest. ( Ibid.)

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The situation before us is completely different. First and foremost, the trust instrument at issue here includes twoprovisions not present in Estate of Black, supra, 160 Cal.App.3d 582, 206 Cal.Rptr. 663: (1) an express declara-tion that all of the property added to the trust estate was subject to the trust; and (2) an express declaration thatall such property was the trustor’s separate property and was to remain his separate property. The presence ofthese two declarations is what distinguishes the instant trust instrument and leads to a different result. Second,there is undisputed extrinsic evidence in this case showing that the trustor did not intend to allow Marlene toretain the distribution conditionally provided for her under the trust in the event she decided to pursue her claimsagainst the trust estate.

Estate of Schreck, supra, 47 Cal.App.3d 693, 121 Cal.Rptr. 218, is distinguishable for similar reasons. In that case,the testator left his estate in trust, with income for life to his surviving spouse and remainder to his siblings. Theno contest clause applied to anyone who sought “ ‘to succeed to any part of my estate except through this will.’” (47 Cal.App.3d at p. 695, 121 Cal.Rptr. 218.) A remainderman contended the surviving spouse had violated theclause because she had successfully claimed a Cadillac held in joint tenancy and had some $2,387 in personalty,consisting of the couple’s furniture and the testator’s wristwatch, set apart to her as exempt from execution. ( Ibid.) The Court of Appeal rejected this contention and determined there had not been a contest because thetestator had not intended to put the surviving spouse to an election of her legal rights. ( Id., at pp. 696-697, 121Cal.Rptr. 218.) Moreover, the spouse had not sought to invalidate the will, nor had the car or the personalty cometo her by intestate succession. ( Id., at p. 697, 121 Cal.Rptr. 218.) We see no inconsistency between that case andours. The facts before us simply call for a different result, i.e., the clause at issue here is not limited to “succes-sors” of the trustor, and the separate property declaration and extrinsic evidence reflect a contrary intention onthe part of the trustor.

In Estate of Watson, supra, 177 Cal.App.3d 569, 223 Cal.Rptr. 14, the court determined that two sisters could filea creditor’s claim against their stepmother’s estate to enforce an oral testamentary agreement allegedly enteredinto between the stepmother and their deceased father without violating a no contest clause contained in thefather’s will. The court found that the attack on the stepmother’s will did not constitute a contest of the father’swill because the sisters had not attempted to thwart their father’s intent but had repeatedly affirmed the provi-sions of his will. (177 Cal.App.3d at p. 575, 223 Cal.Rptr. 14.) In stark contrast, Marlene’s proposed civil actionsseek to defeat Frank’s intentions as expressed in the trust instrument.

Finally, in Estate of Dow, supra, 149 Cal.App.2d 47, 308 P.2d 475, the testator had made gifts of property beforehis death. In his will, he declared that all of his property was his separate property. (149 Cal.App.2d at p. 50, 308P.2d 475.) After the testator’s death, the surviving spouse filed an action in which she claimed that the testator’sestate consisted of community property and sought to set aside the gifts. The matter was eventually settled, andsome of the gifts were returned to the estate. As part of the settlement, the spouse dropped her claim that theestate consisted of community property, and all parties apparently agreed that she could participate in the dis-tribution of the estate. ( Id., at pp. 51-52, 308 P.2d 475.) The Court of Appeal held that the no contest clause wasnot triggered, observing that the surviving spouse had effectively “waived” her contention concerning the com-munity character of the estate. ( Id., at p. 54, 308 P.2d 475.) The court was also impressed with the fact that theaction to set aside the gifts had greatly enhanced the value of the decedent’s estate. ( Ibid.) These facts are sofar removed from the facts here as to make that case inapposite.

In summary, the terms of Frank’s trust instrument and the surrounding circumstances evince an unequivocalintention to preclude Marlene from taking under the trust while at the same time asserting independent owner-ship claims against the Pacific Coast stock, the pension plan benefits and the life insurance benefits which Frankhad transferred to the trust estate. Since Marlene’s proposed federal and state actions are each designed to thwartthis intention, we conclude that each would constitute a contest within the meaning of the no contest clause andthereby trigger its application.FN11

FN11. Marlene also asserts that her proposed state complaint would not trigger the no contest clause because itmerely seeks to obtain a construction of the trust instrument and to enforce Frank’s intent to the extent it is deter-mined that he did not intend for the stock proceeds and the life insurance benefits to be irrevocably held withinthe trust and distributed to his blood relatives. (See Estate of Miller (1964) 230 Cal.App.2d 888, 903, 41 Cal.Rptr. 410 [action brought to construe a will was not a contest because it sought to ascertain the true meaning ofthe testatrix and enforce what she desired].) As we have demonstrated above, however, that was not Frank’s inten-tion. Furthermore, Marlene’s proposed state complaint seeks to recover the disputed assets on the alternative



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theory that Frank had unlawfully converted them in violation of community property laws. This aspect of the com-plaint is plainly intended to nullify or void the subsidiary trust provisions that had been drawn up in favor ofFrank’s mother and other relatives.

B. Does California Law Provide a Basis for Not Enforcing the Clause in This Case?

We now determine whether California law provides a basis for not enforcing the no contest clause againstMarlene. In making this determination, we first consider whether a no contest clause is enforceable under cur-rent law where the will or trust instrument purports to dispose of assets in which a beneficiary claims owner-ship or other rights independent of the instrument, such as community property rights.

We have reviewed the Probate Code and the case law and are unable to find any authority for the propositionthat a no contest clause is either invalid or unenforceable against a beneficiary who claims that a will or trustinstrument purports to dispose of property in which the beneficiary allegedly has independent interests.FN12 Thisis not surprising; courts have historically enforced no contest clauses against beneficiaries making such claims ifthat is determined to be what the decedent plainly intended. (E.g., Estate of Kazian, supra, 59 Cal.App.3d atpp. 802-803, 130 Cal.Rptr. 908; Estate of Howard (1945) 68 Cal.App.2d 9, 11-12, 155 P.2d 841.) Although somecourts have chosen not to enforce no contest clauses against beneficiaries asserting independent claims to estateproperty, they have done so on the basis that the asserted claims were not “contests” within the terms of the par-ticular clauses before them. (E.g., Estate of Black, supra, 160 Cal.App.3d 582, 206 Cal.Rptr. 663; Estate of Schreck,supra, 47 Cal.App.3d 693, 121 Cal.Rptr. 218.) No court, however, has questioned the general enforceability of nocontest clauses as to claims based on the beneficiary’s alleged independent rights.

FN12. The Probate Code expressly provides that no contest clauses are enforceable subject to certain exceptionsnot relevant here. (See Prob.Code, §§ 21303, 21306 [clause not enforceable against beneficiary acting with prob-able cause to bring contest based on forgery or revocation], 21307 [clause not enforceable against beneficiaryacting with probable cause to contest provision that benefits one who drafted or witnessed the instrument, orthat benefits one who gave directions to the drafter without concurrence of the testator or trustor].)

Having concluded that California law does not currently provide for an exception to the enforceability of no con-test clauses in these circumstances, we next consider whether such an exception ought to be recognized.

It is Marlene’s position that public policy weighs in favor of deeming a no contest clause unenforceable againsta surviving spouse who asserts community interests in estate property. She points out there is a strong publicpolicy that favors fair dealing between spouses with respect to marital assets. This policy is embodied in FamilyCode section 1100, which prohibits a spouse from conveying or disposing of community personal property with-out the written consent of the other spouse, and Family Code section 1101, which grants the nonconsentingspouse a right of action against the other spouse for breach of that duty to obtain written consent.

Marlene argues that the enforcement of a no contest clause against a surviving spouse who asserts communityinterests impairs and effectively prohibits enforcement of those interests. She asserts that a decedent should notbe permitted to appropriate 100 percent of the community property, devise an estate plan with a no contestclause, and make a gift of separate property to the surviving spouse to discourage a contest. Marlene reasonsthat because a decedent may not lawfully dispose of another’s property, enforcement of the no contest clausein such a situation encourages intramarital theft and the forfeiture of community property rights. Much of thisreasoning is echoed by the dissent. (Dis. opn. of Kennard, J., post, at pp. 189-190 of 27 Cal.Rptr.2d, pp. 116-117of 866 P.2d.)

We disagree. Both Marlene and the dissent misapprehend the purpose and effect of a no contest clause. Such aclause essentially acts as a disinheritance device, i.e., if a beneficiary contests or seeks to impair or invalidate thetrust instrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or deviseprovided under the instrument. Thus, while the enforcement of a no contest clause might work a forfeiture of asurviving spouse’s conditional right to take under the trust instrument, it does not, as Marlene and the dissenturge, work any forfeiture or conversion of the spouse’s community property.

We have no doubt that no contest clauses discourage some surviving spouses from litigating over perceived com-munity rights in estate property. However, the fact that a no contest clause might discourage a surviving spousein this way does not mean that a “theft” of community property has occurred. Such a clause does not deprivethe spouse of his or her community interests in property, nor does it hinder the ability of the spouse to assert

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such interests. To the extent the spouse believes valid community claims may be made against estate property,the spouse remains free to pursue them at his or her option. In doing so, however, the spouse may not retainthe distribution conditionally provided under the estate plan.

Clearly it is the law that one may not dispose of another’s property. Yet it is neither unlawful nor against publicpolicy to enforce a no contest clause against a surviving spouse who decides to pursue community interests inestate property. For over a century, courts have approved the operation of forced elections, even when no con-test clauses were not involved. (E.g., Estate of Murphy (1976) 15 Cal.3d 907, 913, 126 Cal.Rptr. 820, 544 P.2d 956;Estate of Wolfe, supra, 48 Cal.2d 570, 574, 311 P.2d 476; In re Estate of Smith (1895) 108 Cal. 115, 119-120, 40 P. 1037;Morrison v.Bowman (1865) 29 Cal. 337, 346-352; Estate of Roach, supra, 176 Cal.App.2d at p. 551, 1 Cal.Rptr. 454.)

The reasoning underlying the validity and enforceability of a forced election is persuasive in putting into properperspective the claim that the use of a no contest clause represents an attempt by a trustor or testator to disposeof another’s property. “While it is the law that a testator can only dispose of his own property, he may assumeto dispose of that which belongs to another, and such disposition may be ratified and confirmed by its owner,by the acceptance, under the will, of a donation, necessarily implying such ratification and confirmation. The actof the testator attempting to dispose of the property of another, and the act of the owner of such property inaccepting the benefit provided for him by the testator, united, complete the disposition, which, without the actof confirmation, would be of no effect.” ( Morrison v. Bowman, supra, 29 Cal. at p. 351 [rejecting wife’s claimthat she was entitled to both accept testator’s bequest to her and hold her community rights because testatorcould not dispose of her community interests by his will].) In other words, “the effectiveness of a testamentarydisposition of the surviving spouse’s community property interest to third persons depends upon the survivor’svoluntary and affirmative acceptance of the will’s provisions and cannot stem from the decedent’s testamentaryact alone. [Citation.]” ( Estate of Murphy, supra, 15 Cal.3d at p. 915, 126 Cal.Rptr. 820, 544 P.2d 956.) This logicapplies with equal force to dispel any notion that a no contest clause allows or encourages a testator or trustorto “unlawfully” dispose of another’s property.

In assessing the propriety of creating a new exception to the enforceability of no contest clauses, we cannotignore the fact that the Legislature only recently reaffirmed its approval of no contest clauses as estate planningdevices. (Stats.1990, ch. 79, § 14.) While it may be true that the Legislature has not foreclosed the ability of courtsto develop exceptions to the enforceability of such clauses,FN13 we do not believe that an exception is appro-priate where an assertion of community property rights is made. As the trust in this case illustrates, estate plan-ning for many married couples now entails allocating a lifetime of community and separate assets between thecurrent spouse and children from a previous marriage. The difficulties inherent in ascertaining community inter-ests in otherwise separate property pose a significant challenge to the testator or testatrix. If the testator or tes-tatrix errs in identifying or calculating the community interests in his or her property, costly and divisive litigationmay ensue and testamentary distributions in favor of one or more beneficiaries might unexpectedly be extin-guished. As both the Legislature and courts have long recognized, no contest clauses serve an important publicpolicy in these situations by reducing the threat of litigation and uncertainty. Therefore, the fact that increasingnumbers of spouses and beneficiaries stand to benefit from this time-tested estate planning device is all the morereason for not recognizing the exception Marlene proposes.

FN13. The Legislature expressly declared that the recently enacted statutes governing no contest clauses are“not intended as a complete codification of the law governing enforcement of a no contest clause. The commonlaw governs enforcement of a no contest clause to the extent this part does not apply.” (Prob.Code, § 21301.)The Law Revision Commission Comment to this section explains that the common law meant by the draftersrefers to “the contemporary and evolving rules of decision developed by the courts in exercise of theirpower to adapt the law to new situations and to changing conditions.” (20 Cal.Law Revision Com.Rep.,supra, p. 1979.) The Comment also indicates that, in developing the common law in this area, the courtsare to look to, among other factors, “the terms of the no contest clause and the character of the beneficiary’scontest.” ( Ibid.)

Another compelling reason for not creating an exception for community property claims is that such a rule mightbe counterproductive to the interests of surviving spouses. For instance, the rule might influence some testatorsand testatrices to make no alternative provisions for their surviving spouses because such a course might be theonly way to assure that other intended beneficiaries are adequately provided for in situations where there mightbe any question of a costly or lengthy community property dispute. Thus, while the proposed exception is



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advocated for the supposed protection of surviving spouses, it may actually have the undesired effect of depriv-ing some spouses of the opportunity to receive a distribution of assets that is potentially more valuable than orpreferable to their community interests in the estate.

Finally, we observe that equitable principles support the enforcement of no contest clauses against survivingspouses asserting community interests in estate property when such claims would plainly frustrate the expecta-tions of the decedent spouses. There is considerable unfairness in allowing a surviving spouse to accept a willor trust instrument to the extent it confers a benefit, and at the same time attack the instrument to the extent itdoes not. Under such circumstances, the surviving spouse would receive a windfall to the detriment of the otherbeneficiaries.FN14

FN14. The following hypothetical situation illustrates the inequitable result that would ensue from Marlene’sproposed exception: Husband and Wife get married. For both it is their second marriage. Prior to this mar-riage, Wife was half owner of a business; during the marriage, she becomes sole owner. When drafting herwill, Wife understands that her business may be at least in part community property (or that Husband willargue as much), but she nonetheless desires to leave the entire business to her two children from her first mar-riage, as they have spent much of their adult lives working there and preparing to take it over. Wife thereforewills the business to her children, but leaves Husband all of her nonbusiness separate property (which isroughly equal in worth to the business). Wife declares in her will that it is her intention to put Husband to anelection of his community property rights, and inserts a no contest clause into her will to discourage Husbandfrom bringing a potentially costly, time-consuming and divisive contest based on such rights. Under Marlene’sexception, both the forced election and the no contest clause would be deemed unenforceable againstHusband in the event he asserts community property interests in the business. The result: Husband receiveshis community property share of Wife’s business, plus retains 100 percent of Wife’s other separate property.Wife’s unequivocal testamentary intentions are frustrated, and Husband receives a windfall to the detrimentof Wife’s children.

As this hypothetical situation illustrates, the no contest law operates in a gender-neutral fashion. And, contraryto the dissent’s implied assumptions, no contest clauses may frequently be employed where the testator or tes-tatrix acts with utmost good faith toward the other spouse. That is, disputes may often arise after the death ofthe testator or testatrix even though he or she had kept the other spouse fully informed of all business dealings.

Accordingly, we hold that a no contest clause is properly enforceable against a surviving spouse who, under theterms of a will or trust instrument, brings a contest against that instrument based on the assertion of communityproperty rights to estate property. When a spouse decides to pursue such a challenge, we see no legal or policyreason that would justify allowing the spouse to also take under the instrument in clear violation of the dece-dent’s intentions.

C. Is California’s No Contest Law Preempted to the Extent Pension Plan Benefits Are at Issue?

Marlene’s proposed federal complaint alleges that the Pacific Coast employees’ pension plan is an employeebenefit plan under ERISA (29 U.S.C. § 1001 et seq.). The Pacific Coast pension plan, which is attached toMarlene’s proposed federal complaint, specifies that each participant must designate a beneficiary to receiveall death benefits, that a participant who has an eligible spouse must designate that spouse as the beneficiaryunless the spouse waives in writing the right to be so designated, and that if no beneficiary is designated, alldeath benefits are payable to the participant’s surviving spouse. Marlene’s proposed complaint alleges, interalia, that she did not waive any of her rights under ERISA or the pension plan, and that the administrators ofthe plan breached their fiduciary duties under ERISA by refusing to pay her any death benefits and refusingto provide any information or documents to which she was entitled. In this section we address Marlene’s con-tention that application of California’s no contest law is preempted by ERISA to the extent she seeks recoveryof pension plan benefits.

“ERISA is a comprehensive federal statutory scheme designed to promote the interests of employees and their bene-ficiaries in employee benefit plans.” ( Carpenters So.Cal.Admin.Corp.v.El Capitan Development Co. (1991) 53 Cal.3d1041, 1047, 282 Cal.Rptr. 277, 811 P.2d 296 [hereafter Carpenters ].) ERISA was adopted by Congress “to ensure that‘if a worker has been promised a defined benefit upon retirement-and if he has fulfilled whatever conditions arerequired to obtain a vested benefit- ··· he actually receives it.’ [Citation.]” ( Alessi v.Raybestos-Manhattan, Inc. (1981)451 U.S. 504, 510, 101 S.Ct. 1895, 1899, 68 L.Ed.2d 402 [hereafter Alessi ].)

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ERISA contains an express preemption clause providing in pertinent part that the federal act “shall supersede any andall State laws insofar as they may now or hereafter relate to any employee benefit plan····” (29 U.S.C. § 1144(a),italics added.) As defined under ERISA, “State law” include “all laws, decisions, rules, regulations, or other Stateaction having the effect of law, of any State.” ( Id., § 1144(c)(1).) An “employee benefit plan” is defined as includingemployee pension benefit plans. ( Id., § 1002(3).) For purposes of the preemption clause, a state law “relates to” abenefit plan “if it has a connection with, or reference to such a plan.” ( Shaw v. Delta Air Lines, Inc. (1983)463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 [hereafter Shaw ]; see also Pilot Life Ins. Co. v. Dedeaux(1987) 481 U.S. 41, 47, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39.)

The United States Supreme Court has made clear that a state law “relates to” a benefit plan and is preempted ifit is specifically designed to affect ERISA benefit plans, or singles out such plans, by express reference, for specialtreatment. ( Mackey v. Lanier Collection Agency & Serv., Inc. (1988) 486 U.S. 825, 829, 838, fn. 12, 108 S.Ct. 2182,2185, 2190, fn. 12, 100 L.Ed.2d 836 [finding preemption of Georgia law which singled out ERISA plans forprotective treatment under state garnishment procedures]; accord, Carpenters, supra, 53 Cal.3d at p. 1049,282 Cal.Rptr. 277, 811 P.2d 296 [finding preemption of statute which created liens on real property in favor oftrust funds established pursuant to collective bargaining agreements].) This bright line rule of preemption is notimplicated here because California’s no contest law makes no specific reference and affords no special treatmentto ERISA benefit plans.

Preemption is less certain when a state law is a neutral law of general application that indirectly affects an ERISAbenefit plan. Although it is settled that “even indirect state action bearing on private pensions may encroach uponthe area of exclusive federal concern” ( Alessi, supra, 451 U.S. at p. 525, 101 S.Ct. at p. 1907 [state statute pre-empted insofar as it eliminated a method of calculating benefits under ERISA pension plans] ), it is also estab-lished that a state law may affect a pension plan in “too tenuous, remote, or peripheral a manner to warrant afinding that the law ‘relates to’ the plan” ( Shaw, supra, 463 U.S. at p. 100, fn. 21, 103 S.Ct. at p. 2901, fn. 21; seeRetirement Fund Trust of Plumbing v.Franchise Tax (9th Cir.1990) 909 F.2d 1266, 1280-1281 [California’s tax levyprocedure not preempted]; Aetna Life Ins. Co. v. Borges (2d Cir.1989) 869 F.2d 142, 145 [state escheat law notpreempted] ). Since there is no black letter test for evaluating whether a neutral state law is preempted (seeDuffy v. Cavalier (1989) 215 Cal.App.3d 1517, 1528, 264 Cal.Rptr. 740), we must analyze what effect the nocontest law has upon ERISA plans and whether that effect impermissibly encroaches upon ERISA’s exclusivesphere of concern.

Preliminarily we observe that the no contest law fails to fit into any of the four categories of laws that have pre-viously been found to “relate to” ERISA plans: (1) laws that regulate the type of benefits or terms of ERISA plans;(2) laws that create reporting, disclosure, funding or vesting requirements for ERISA plans; (3) laws that providerules for the calculation of the amount of benefits to be paid under ERISA plans; and (4) laws and common lawrules that provide remedies for misconduct growing out of the administration of ERISA plans. ( Carpenters, supra,53 Cal.3d at pp. 1051-1052, 282 Cal.Rptr. 277, 811 P.2d 296, citing to Iron Workers Pension Fund v.Terotechnology(5th Cir.1990) 891 F.2d 548, 553; see also Martori Bros.Distributors v.James-Massengale (9th Cir.) 781 F.2d 1349,as amended, 791 F.2d 799, cert. den. (1986) 479 U.S. 949, 107 S.Ct. 435, 93 L.Ed.2d 385.) Moreover, applicationof the law does not call for any interpretation of an ERISA provision, other than that relating to preemption,or for a ruling on the validity of any terms or conditions of an ERISA plan. (See Duffy v. Cavalier, supra,215 Cal.App.3d at p. 1529, 264 Cal.Rptr. 740.)

Although the no contest law is unlike any of the laws described above, Marlene contends that the law is pre-empted because it has a direct regulatory impact on ERISA fiduciaries and the pension plan itself. She points outthat her proposed federal complaint contains causes of action against the pension plan administrators that areexpressly authorized by ERISA’s civil enforcement scheme (see 29 U.S.C. § 1132(a)), and asserts that the effectof the law is to inhibit the assertion of these claims and thereby shield the fiduciaries of the ERISA plan fromanswering for their wrongful conduct.

We cannot agree. While Marlene’s proposed causes of action may be authorized under ERISA, the no contestlaw does not inhibit her ability to pursue these claims or to take full advantage of ERISA’s civil enforcementscheme. Nor does it provide a shield for fiduciaries guilty of wrongful conduct. On the contrary, beneficiariessuch as Marlene retain full discretion and opportunity under the no contest law to sue ERISA plan administra-tors for wrongfully withheld benefits and breaches of fiduciary duty. Hence, the no contest law has no regula-tory impact, direct or otherwise, on ERISA fiduciaries or ERISA plans.FN15



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FN15. In Aetna Life Ins. Co. v.Borges, supra, 869 F.2d 142, 146-148, the Second Circuit held that ERISA does notpreempt a state law of general application that has an incidental economic and administrative impact upon anERISA benefit plan. We note Marlene makes no contention that application of the no contest law would haveany sort of economic or administrative effect upon ERISA plans.

Marlene next argues that the no contest law is preempted because it has an impermissible “chilling effect” on thepursuit of her rights under ERISA that renders those rights essentially worthless. To support her position, Marlenecites a federal decision dealing with attorney fees issues under an ERISA provision (29 U.S.C. § 1132(g)) that author-izes such fees to prevailing parties in ERISA actions. ( Jones v.O’Higgins (N.D.N.Y.1990) 736 F.Supp. 1243.) FN16 Inthat case, the district court exercised its discretion in refusing to award attorney fees against a plaintiff who haddemonstrated a prima facie case of an ERISA violation. In doing so, the court observed: “In circumstances wherethe plaintiff has come forward with a prima facie case of an ERISA violation, a decision to award attorney’s feeswould likely operate to ‘chill’ other plaintiffs from asserting their rights under ERISA.” (736 F.Supp. at p. 1246.)

FN16. Under 29 United States Code section 1132(g)(1), the decision whether to award attorney fees and costs isgenerally based on five factors: (1) the degree of the offending party’s culpability or bad faith; (2) the ability ofthe offending party to satisfy an award of attorney fees; (3) whether an award of fees would deter other personsfrom acting similarly under like circumstances; (4) the relative merits of the parties’ positions; and (5) whetherthe action conferred a common benefit on a group of pension plan participants. ( Jones v.O’Higgins, supra, 736F.Supp. at p. 1244.)

We are not convinced. First, Marlene cites no authority standing for the proposition that ERISA preempts anystate law that has a “chilling effect” on the assertion of ERISA rights. Second, assuming for the sake of argumentthat a state law is preempted to the extent it “chills” the exercise of ERISA rights, her attempt to analogize theapplication of the no contest law to the imposition of a sanction such as an award of attorney fees is withoutmerit. As explained previously (at p. 169 of 27 Cal.Rptr.2d, p. 96 of 866 P.2d ante ), a no contest clause in a willor trust instrument operates to condition a beneficiary’s right to take a gift provided under the instrument uponthe beneficiary’s agreement to acquiesce to its terms. (See Estate of Hite, supra, 155 Cal. 436, 441, 101 P. 443;Estate of Lindstrom, supra, 191 Cal.App.3d 375, 381, 236 Cal.Rptr. 376.) Since application of the no contest lawmerely enforces the conditional nature of a private testamentary gift to which the beneficiary is not otherwiseentitled, such a law bears no meaningful resemblance in function to an award of sanctions.

Indeed, in the event Marlene decides to pursue her claims to the ERISA benefits in federal court and she pre-vails, application of the no contest law would not prevent or hinder her from obtaining everything to which sheis entitled under ERISA.FN17 There certainly is nothing about the law that would render those benefits worthless.At the same time, if Marlene decides to pursue her ERISA claims and she loses, the no contest law would notauthorize attorney fees or any other analogous type of sanction against her for having exercised her rights. Wetherefore conclude that the no contest law has no “chilling effect” on the exercise of ERISA rights.

FN17. In fact, Marlene may even be entitled to attorney fees and costs under 29 United States Code section 1132(g).

Notwithstanding the above, Marlene argues that the no contest law presents a situation parallel to MacLean v.Ford Motor Co. (7th Cir.1987) 831 F.2d 723, in which application of a state’s testamentary law was found to bepreempted. In that case, the executor of the decedent’s estate sought to have the decedent’s ERISA plan bene-fits distributed pursuant to the terms of his will, rather than in accordance with the beneficiary designation pro-vision contained in his pension plan. In concluding that ERISA preempted application of the testamentary law,the Seventh Circuit reasoned that the law, if applied, would determine the distribution of plan assets even thoughthe plan already provided a method for determining such distribution. (831 F.2d at pp. 727-728; cf. Ablamis v.Roper (9th Cir.1991) 937 F.2d 1450 [nonemployee spouse may not bequeath one-half of surviving employee’spension benefits to third party under California’s community property law]; Iron Workers Mid-South PensionFund v.Stoll (E.D.La.1991) 771 F.Supp. 781, 785-786 [state domestic property statutes may not operate to changebeneficiary of pension plan death benefit].)

This argument is off the mark. While MacLean v. Ford Motor Co., supra, 831 F.2d 723, and the other cases citedabove indicate that Marlene might prevail in her proposed federal action to recover the disputed pension planbenefits, they do not suggest that ERISA preempts that aspect of the no contest law that would operate to precludeMarlene from taking a private trust distribution consisting of nonpension assets at the same time. As one courtaptly stated, “[i]n deference to state prerogatives within the federal system, we must not find such a traditional

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exercise of state power preempted unless the conclusion is ‘unavoidable.’ [Citation.]” ( Aetna Life Ins. Co. v.Borges, supra, 869 F.2d at p. 147.) In the instant situation, a finding of preemption is properly avoided becauseapplication of the no contest law against Marlene would only affect her right to receive a distribution of non-pension assets under the Frank Burch Family Trust.

Finally, Marlene argues that enforcement of the no contest law “interferes” with her rights in violation of an ERISAstatute which provides: “It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or dis-criminate against a participant or beneficiary for exercising any right to which he is entitled under the provisionsof an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension PlansDisclosure Act [29 U.S.C.A. § 301 et seq.], or for the purpose of interfering with the attainment of any right towhich such participant may become entitled under the plan, this subchapter, or the Welfare and Pension PlansDisclosure Act. It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against anyperson because he has given information or has testified or is about to testify in any inquiry or proceedingrelating to this chapter or the Welfare and Pension Plans Disclosure Act. The provisions of section 1132 of thistitle shall be applicable in the enforcement of this section.” (29 U.S.C. § 1140.)

We are not persuaded. Our previous analysis explains why the no contest law does not impede or interfere withMarlene’s attainment of her ERISA benefits. Moreover, although enforcement of the no contest clause will resultin Marlene’s forfeiture of nonpension-related gifts and assets, she cites no authority suggesting that state enforce-ment of the conditional nature of a private gift constitutes an “interference” within the meaning of 29 UnitedStates Code section 1140. Rather, it appears that the prohibitions contained therein “were aimed primarily at pre-venting unscrupulous employers from discharging or harassing their employees in order to keep them fromobtaining vested pension rights.” ( West v. Butler (6th Cir.1980) 621 F.2d 240, 245.) Although some courts haveapplied this statute outside the context of an employment relationship (see Vogel v.Independence Federal Sav.Bank(D.Md.1988) 692 F.Supp. 587, 593 [applying statute to group health insurer]; McGinnis v. Joyce (N.D.Ill.1981)507 F.Supp. 654, 656-657 [applying statute to plan trustees who threatened violence against participant] ),Marlene identifies no decision that has recognized its application to a state statute or under circumstances oth-erwise analogous to those here.

Based on the foregoing, we are satisfied that California’s no contest law is a neutral state law of general appli-cation that here would only tenuously affect an ERISA plan, if at all, and would therefore not impermissiblyencroach upon ERISA’s exclusive sphere of concern. (See Retirement Fund Trust of Plumbing v. Franchise Tax,supra, 909 F.2d at pp. 1280-1281.) Accordingly, we hold there is no preemption with respect to enforcement ofthe no contest clause at issue.

CONCLUSION

The terms of the trust instrument and the surrounding circumstances evince an unequivocal intent by Frank toforeclose Marlene from retaining the distribution provided for her under that instrument in the event she pro-ceeds to assert her independent ownership claims to the assets in dispute. That being the case, we conclude thatthe no contest clause would be triggered by Marlene’s proposed state and federal actions.

We further conclude that there is no legal or public policy basis for not enforcing the clause against Marlene. Indoing so, however, we wish to emphasize that we are not expressing any opinion on the merits of Marlene’sclaims to the disputed assets as a surviving spouse under community property law and ERISA.FN18 Nor are weplacing any “stamp of approval” upon the trustor’s alleged breach of trust, or suggesting any “endorsement” ofmarital duplicity, as the dissent accuses us of doing. We hold only that the clause would be enforceable againstMarlene in the event she proceeds with her proposed state and federal complaints. We also wish to reiterate thatenforcement of the clause will in no way inhibit or interfere with Marlene’s ability to obtain everything to whichshe may be entitled under community property and federal laws. It will simply mean that if Marlene decides topursue her complaints she may not, at the same time, also obtain the portion of Frank’s separate propertyconditionally left to her under his trust.

FN18. Although the dissent has apparently already prejudged the merits of these claims, it is up to the state trialcourt and the federal district court to decide these matters in the event Marlene decides to pursue them.

The judgment of the Court of Appeal is affirmed.

LUCAS, C.J., and PANELLI, ARABIAN, and GEORGE, JJ., concur.



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MOSK, Justice, dissenting.I dissent for the irrefutable reasons expressed in parts I and II of Justice Kennard’s dissent. Because the viewsexpressed in those portions of Justice Kennard’s dissent adequately resolve the question before us, I do not joinand express no opinion with regard to part III.

KENNARD, Justice, dissenting.In this case a husband, without his wife’s knowledge or consent, took his wife’s property and gave it to his rel-atives as part of his estate plan. One might expect, in view of the relationship of trust and confidence betweenmarriage partners, that this maneuver would not survive judicial scrutiny. But a majority of this court places itsstamp of approval upon this breach of trust, and comes dangerously close to endorsing marital duplicity in finan-cial matters. I dissent.

Frank Burch caused his lawyers to draw up a will and trust that, unbeknownst to his wife Marlene, distributedMarlene’s interests in community property and her federally guaranteed death benefit pension rights to Frank’srelatives. Frank sought to ensure the success of his plan by inserting a “no contest” or “in terrorem” clause in thetrust instrument, intending that if Marlene challenged any provision of his will or trust, she would have to for-feit any benefits she received under the trust. Marlene sought to challenge the use of the no contest clause towork such a forfeiture.

Even though the Legislature has mandated that such no contest provisions be strictly construed, and the wife’sproposed challenge does not come strictly within the express terms of the forfeiture clause, the majority con-cludes that if the wife challenges the husband’s attempted disposition of her assets, the forfeiture clause will betriggered. The community property laws and the public policy of this state forbid one spouse to unilaterally dis-pose of the assets of the community. Nevertheless, the majority holds that a husband who seeks, without theknowledge or consent of his wife, to dispose of community assets and her separate assets may be shielded bythe operation of a no contest clause in a trust or will. And, even though the wife’s pension rights are guaranteedunder the federal Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.), whichCongress intended to preempt conflicting state law, the majority holds that the husband’s unilateral diversion ofhis wife’s federally guaranteed pension rights does not offend federal law.

I do not agree. As I will explain, I would hold: (1) that, applying the statutory mandate to “strictly construe” nocontest clauses, filing either the proposed state court or federal court complaints in this case would not amountto a “contest”; (2) that a no contest clause does not apply against the assertion of a spouse’s community interestin donative property; and (3) that the application of a no contest clause in a testamentary instrument underCalifornia law to divest a party of federally guaranteed pension rights is preempted under ERISA.

I. BACKGROUND

Frank and Marlene Burch married in December 1985. Before the marriage, Frank had an unspecified ownershipinterest in Pacific Coast Ford, a corporation operating an automobile dealership; after he and Marlene were mar-ried, Frank apparently became the sole shareholder. During the marriage, Frank became a participant in thePacific Coast Ford pension plan. In mid-1988, Frank retained an attorney to prepare a will and a testamentarytrust known as the Frank Burch Family Trust (hereafter the trust).

The primary beneficiaries of the trust were Frank’s blood relatives. During the marriage, Frank transferred cer-tain assets into the trust, including all the stock of Pacific Coast Ford and the entire interest in the pension plancreated after Frank and Marlene were married. The trust included a subsidiary marital trust containing substan-tial assets to pass to Marlene, but the marital trust did not contain any interest in Pacific Coast Ford or in the pen-sion plan.

The trust instrument had a no contest clause which provided, in pertinent part: “In the event that any benefici-ary under this Trust ··· contests in any court the validity of this Trust or of Trustor’s last will, or seeks to obtainin any proceeding in any court an adjudication that this Trust or any of its provisions or that such Will or any ofits provisions is void, or seeks otherwise to void, nullify or set aside this Trust or any of its provisions, then theright of that person to take any interest given to him or her by this Trust shall be determined as it would havebeen determined had such person predeceased the execution of this trust instrument without issue.” The willcontained a similar clause. The trust instrument additionally recited that “the property subject to this Trust is [thetrustor’s] separate property and that his interest therein ··· shall remain his separate property.”

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Frank died in March 1989. Both Frank and Marlene had apparently brought substantial assets to the marriage. Atthe time of his death, the assets claimed to be Frank’s were valued at more than $7 million. Property worthapproximately $800,000 passed directly to Marlene by joint tenancy. Outside the trust, Marlene also received lifeinsurance proceeds of $200,000. Under the trust, Marlene received life insurance proceeds of $60,000, and a life estate in the income from a subsidiary marital trust of about $1.6 million. The balance of approximately $4.3 mil-lion, including most of the proceeds from the sale of the Pacific Coast Ford stock and the entire pension plandeath benefit of $169,000, passed under the trust to Frank’s blood relatives.

In December 1990, Marlene filed two petitions under former Probate Code section 21305 seeking a determina-tion whether certain ERISA and community property claims could be brought in federal and state court withoutinvoking the no contest clause. She attached proposed complaints to each of her petitions.

The proposed federal court complaint named only the pension plan trustees as defendants. It alleged, amongother things, that: (1) under 29 United States Code section 1055 and the terms of the pension plan, Marlene wasentitled as a surviving spouse to receive 100 percent of the death benefits payable under the plan, but the plantrustees had refused to pay any benefits to her; (2) under California community property law, Marlene was enti-tled to 50 percent of all Frank’s income, and was therefore entitled to half of all benefits under the plan, whichbenefits had been unlawfully converted by the trustees; (3) the trustees had breached their fiduciary duties; and(4) the trustees had wrongfully failed to provide information, in violation of 29 United States Code section 1132(c).

The proposed state court complaint named as defendants the trustees of the trust, its beneficiaries, and its sub-sidiary trusts. It alleged, among other things, that Marlene never consented to the transfer of any of her interestin community property into the trust. The property transferred without her consent included 100 percent of theshares of stock in Pacific Coast Ford, the pension plan interest, and several life insurance policies purchased withcommunity funds. The complaint set forth causes of action for, among other things, conversion, declaratory relief,and partition.

The Probate Code petitions were opposed by the trust and several of its beneficiaries. The trial court consoli-dated the petitions, and ruled that both proposed complaints would trigger the no contest clause. The trial courtalso ruled that ERISA did not preempt application of the no contest clause.

Marlene appealed, and the Court of Appeal affirmed the judgment of the trial court.FN1

FN1. With respect to one cause of action in the state court complaint, the Court of Appeal reversed the trial court,and determined that Marlene could seek declaratory relief regarding her right to reimbursement for certain res-idential construction costs under the trust. This issue was conceded by the trustees.

II. NO CONTEST CLAUSES

A. Strict Construction

The law regarding no contest clauses, also called “in terrorem” clauses, is not uniform in the United States. In afew states such clauses are unlawful, and are given no effect, apparently based on the view that “to inhibit aparty from ascertaining his rights by appeal to the [courts]” is “against the fundamental principles of justice.”(Leavitt, Scope and Effectiveness of No-Contest Clauses in Last Wills and Testaments (1963) 15 Hastings L.J. 45, 55; see,e.g., Fla.Stat. § 732.517 (1992); Ind.Code § 29-1-6-2 (1992); cf. Pacific Gas & Electric Co. v. Bear Stearns & Co.(1990) 50 Cal.3d 1118, 1133, 270 Cal.Rptr. 1, 791 P.2d 587.) In most jurisdictions, however, the courts uphold nocontest clauses, subject to an important restriction: no contest clauses apply only to beneficiaries who contest awill when they have no probable cause to do so. (See, e.g., U.Prob.Code § 3-905 (1983); Rest.2d Property,Donative Transfers (1983) § 9.1.)

California follows a minority rule: no contest clauses are effective, and there is no broad “probable cause” restric-tion as in most jurisdictions. Nevertheless, no contest clauses are not accorded expansive effect in California.They are not favored. “Public policy [is] as much concerned in upholding the right of a citizen to have his [orher] claim determined by law as it is to prevent contests of wills.” ( Lobb v.Brown (1929) 208 Cal. 476, 490-491,281 P. 1010.) Shortly after this court’s recognition that no contest clauses were not invalid as against public policyin Estate of Hite (1909) 155 Cal. 436, 101 P. 443, we emphasized that such clauses are “by way of forfeiture” and



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therefore are to be “strictly construed.” ( Estate of Bergland (1919) 180 Cal. 629, 633, 182 P. 277.) And in 1989,the Legislature codified the rule of strict construction for no contest clauses, thereby placing its stamp of approvalon the narrow and cautious approach to such provisions taken by the judiciary. (Prob.Code, § 21304.)

Probate Code section 21304 provides: “In determining the intent of the transferor, a no contest clause shall bestrictly construed.” (Italics added.)

The meaning of strict construction in the context of wills is succinctly summarized in a recent law review arti-cle: “Whereas ‘strict construction’ of wills emphasizes the written word and confines interpretation to the ‘plainmeaning’ of the words found within ‘the four corners of the instrument,’ a more ‘liberal construction’ empha-sizes the testator’s intent as the primary determinant and thus allows extrinsic evidence of that intent.” (Collins& Skover, Paratexts (1992) 44 Stan.L.Rev. 509, 541-542, fn. 171, citing Atkinson, Handbook of the Law of Wills(1953) pp. 808-809.)

Our law is in accord. This court has held that strict construction means that “[n]o wider scope is to be given to[the testator’s] language than is plainly required.” ( Estate of Bergland, supra, 180 Cal. at p. 635, 182 P. 277.) Onlywhen an act “come[s] strictly within the express terms” of the no contest clause will a breach be declared. ( Lobbv.Brown, supra, 208 Cal. at p. 492, 281 P. 1010.)

B. Strict Construction Applied

As noted earlier, the no contest clause in the trust instrument in this case provided: “In the event that any ben-eficiary under this Trust ··· contests in any court the validity of this Trust or of Trustor’s last will, or seeks to obtainin any proceeding in any court an adjudication that this Trust or any of its provisions or that such Will or any ofits provisions is void, or seeks otherwise to void, nullify or set aside this Trust or any of its provisions, then theright of that person to take any interest given to him or her by this Trust shall be determined as it would havebeen determined had such person predeceased the execution of this trust instrument without issue.”

It is undisputed that Marlene’s proposed federal and state court complaints do not seek to set aside the trust inits entirety. The question, therefore, is whether either proposed complaint “seeks ··· an adjudication that ··· any··· provision [ ] [of the trust instrument] is void, or seeks otherwise to void, nullify or set aside” any provision ofthe trust instrument.

In accordance with Probate Code section 21304, this clause must be strictly construed. I turn first to the proposedstate court complaint. It names as defendants the trust and the subsidiary trusts, and all of their beneficiaries andtrustees. The proposed state court complaint sets forth causes of action for declaratory relief to construe the trustinstrument, conversion, breach of fiduciary duty and partition, and seeks to impose a constructive trust and toset aside fraudulent conveyances.

The proposed state court complaint does not seek an adjudication that any provision of the trust instrument isvoid or should be set aside. It is therefore not, on its face, an attack on a provision in the trust instrument, andaccordingly it cannot be a contest.

The proposed federal court complaint names only the pension plan trustees as defendants. It sets forth causes ofaction for breach of statutory obligations under ERISA, for conversion, for declaratory relief, and for breach of fiduciary duties. Like the proposed state court complaint, the proposed federal court complaint does not seekan adjudication that any provision of the trust instrument is void or should be set aside. It is also, on its face, not an attack on a provision in the trust instrument, and accordingly it cannot be a contest.

Nevertheless, the trustees contend that the proposed state and federal court complaints necessarily and in sub-stance seek an adjudication that a provision of the trust instrument is void and should be set aside. The trusteesfocus on this provision of the instrument: “Trustor states that the property subject to this Trust is his separateproperty and that his interest therein, and in the proceeds and income therefrom, shall remain his separate property.”The trustees contend that Marlene’s proposed state court complaint challenges this clause because Marleneclaims that the property subject to the trust is not Frank’s separate property, but community property instead.Similarly, the trustees contend that the proposed federal court complaint challenges this clause becauseMarlene claims that the ERISA death benefits that were made subject to the trust are under federal law payableto Marlene only.

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The difficulty with the trustees’ argument is that Frank did not expressly identify in the trust instrument whatproperty he considered to be his separate property. In this case, the trust instrument does not even purportto dispose of any interest in the property that Marlene claims is community property, or of any interest inproperty that Marlene claims is her separate property. Thus, Marlene does not seek to set aside the provi-sion in the trust instrument quoted above, but merely to have a court construe that provision so as not toinclude property that is rightfully hers.

As the proposed state court complaint confirms, Marlene has strong claims that the Pacific Coast Ford stock andthe life insurance proceeds were community property and not Frank’s separate property. Under Family Codesection 760, all property acquired by a married person during the marriage is presumed to be community prop-erty. The record in this case shows that Frank and Marlene were married in December 1985; although Frank’sinitial ownership interest in the dealership preceded the marriage, Frank became president and sole shareholderof Pacific Coast Ford in June 1986. Similarly, the record confirms that the life insurance policies at issue werepurchased during the marriage.

Moreover, Marlene also has a strong claim that the ERISA death benefits were also not Frank’s separate propertythat he was entitled to dispose of as he wished. ERISA generally mandates that each pension plan must provide“a qualified preretirement survivor annuity” to the surviving spouses of plan participants. (29 U.S.C. § 1055(a)(2).)The plan, a copy of which is attached to Marlene’s proposed federal court complaint, appears to comply with the requirement for qualified preretirement survivor annuities. No party other than the surviving spouse hasany claim under federal law to this death benefit.

The majority places great reliance on the language in the trust instrument that the trustee is to hold “the prop-erty listed on the attached ‘Schedule A’ and any other property added to the Trust Estate according to the termsof the Trust.” The majority seems to conclude that this language shows that Frank expressly intended the PacificCoast Ford stock, the life insurance proceeds, and the pension plan assets to be added to the trust corpus. Noschedule A was ever prepared, however. And the majority ignores the instrument’s requirement that propertyadded to the trust estate must be added “according to the terms of the Trust.” But the terms of the trust specifythat only Frank’s separate property is subject to disposition. There is nothing in the terms of the trust thatindicates that Frank sought to dispose of Marlene’s property. Thus, reading the language of the trust strictly,community property and Marlene’s separate property could not have been added to the trust estate “accordingto the terms of the Trust.”

Because Frank did not expressly identify in the trust instrument what property he considered to be his separate prop-erty, we must give the phrase “separate property” its usual legal meaning. (See Estate of Carter (1956) 47 Cal.2d 200,205, 302 P.2d 301.) Whatever ambiguity may be said to inhere in the phrase “separate property,” it plainly cannot beconstrued to mean “community property” or “separate property of another.” Nevertheless, that is exactly what themajority does in this case. The majority first purports to find ambiguity in this unambiguous phrase, and then turns toevidence extrinsic to the trust instrument itself-specifically, the declarations of two lawyers. One of the lawyers is alsoa trustee of the trust and is named as a defendant in Marlene’s proposed state court complaint, and the other is theattorney who drafted the trust instrument and could face potential liability in this matter. As I shall discuss, however,the majority’s approach to construction of no contest clauses is contrary to the statutory mandate.

Probate Code section 21304, as noted above, requires that no contest clauses be “strictly construed.” In deter-mining the legislative intent of a statute, it is proper to look to comments by a law revision commission, whichare persuasive evidence of the intent of the Legislature in enacting commission recommendations. (E.g., Peoplev. Garfield (1985) 40 Cal.3d 192, 199, 219 Cal.Rptr. 196, 707 P.2d 258.) This is particularly true when, as hap-pened with section 21304, the Legislature adopts without any change the statute proposed by a commission.(40 Cal.3d at 199, 219 Cal.Rptr. 196, 707 P.2d 258; accord, Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 250,66 Cal.Rptr. 20, 437 P.2d 508.)

The Law Revision Commission Comment on Probate Code section 21304 states: “In the interest of predictability,it resolved a conflict in the case law in favor of strict construction. Cf. Garb, The In Terrorem Clause: ChallengingCalifornia Wills, 6 Orange County [Bar] J. 259 (1979). Strict construction is consistent with the public policy toavoid a forfeiture. Cf. Selvin, Comment: Terror in Probate, 16 Stan. L. Rev. 355 (1964)····” (20 Cal.Law Revision



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Com. Deering’s Ann.Prob.Code, § 21304 (1991 ed.) p. 578.) The report of the Law Revision Commissionrelies on the same sources and is to the same effect. (Recommendation Relating to No Contest Clauses (Jan.1989) 20 Cal.Law Revision Com.Rep. (1990) p. 12.)

As the preceding comment indicates, the conflict in the case law perceived by the drafters of Probate Codesection 21304 was based on the analysis of a bar journal article, Garb, The In Terrorem Clause: ChallengingCalifornia Wills (1979) 6 Orange County Bar J. 259 (Garb). This article observed that “[a]lthough numerouscases state that a no-contest clause should be strictly construed and should be limited in scope so as toinclude no conduct other than that which the language plainly requires, some recent cases have construedsuch clauses so broadly as to bring into question the validity of the rule of strict construction.” ( Id. at p. 262.)The author distinguished those cases in which the concept of a contest was “given its definitive legal meaning”or limited to “technical attack[s] on the competency of the testator, fraud or undue influence,” from those casesin which the court considered “whether or not the action thwarted the decedent’s intent” or “whether there wasa purpose to defeat the provisions of the will” on the part of a beneficiary. ( Id. at pp. 263-264.)

As an example of a case that “signal[ed] a departure from the earlier cases requiring a strict interpretation of theclause,” (Garb, supra, at p. 263) the author cited Estate of Kazian (1976) 59 Cal.App.3d 797, 130 Cal.Rptr. 908.In Estate of Kazian, the court recited the rule of strict construction, but then proceeded to state that whetherthere was a contest “must be gleaned from a consideration of the purpose[s] that the [testator] sought to attainby the provisions of [his or her] will.” (59 Cal.App.3d at p. 802, 130 Cal.Rptr. 908.)

The “purposes” approach of the Kazian court is virtually identical to the analytic approach used by the major-ity in this case. (See maj. opn., ante, at p. 170 of 27 Cal.Rptr.2d, p. 97 of 866 P.2d.) It is, however, an approachthat was flatly rejected by the Legislature when it adopted Probate Code section 21304. By enacting this statute,the Legislature resolved the conflict in the case law by rejecting the Kazian “purposes” approach and by embrac-ing the rule of strict construction.

Here, the majority, following the approach of cases rejected by the Legislature when it endorsed the rule of strictconstruction by adopting Probate Code section 21304, determines that the purposes of the testator would be bestserved by a construction of the language of the trust instrument that is dependent upon references to extrinsicindicia of the testator’s intent. This construction flies in the face of the rule that “[a]n intention on the part of thetestator to dispose of his wife’s interest in the community property will not be implied where another construc-tion is permissible.” ( Estate of Wolfe (1957) 48 Cal.2d 570, 576, 311 P.2d 476.)

The majority recognizes that it must identify a provision of the trust instrument that, in its view, Marlene seeksto “void, nullify, or set aside.” Thus, the majority asserts that Marlene seeks to “void, nullify or set aside” the pro-vision of the trust instrument that provides for the allocation of trust assets to the subsidiary trusts. (Maj. opn.,ante, at p. 173 of 27 Cal.Rptr.2d, p. 100 of 866 P.2d.) The problem with this assertion is obvious. As noted ear-lier, the instrument requires that the property added to the trust estate must be added “according to the terms ofthe Trust,” and the terms of the trust specify only that Frank’s separate property, not Marlene’s property, is sub-ject to disposition. Therefore, Marlene’s claim that her property was improperly added to the trust corpus cannotrationally be considered an attempt to void any provision of the trust instrument relating to the subsidiary trusts;instead, it is an attempt to enforce the provision that specifies that property added to the trust estate must beadded “according to the terms of the Trust.” The majority’s approach is not strict construction; it is arbitrary andexpansive construction. It is at odds with the Legislature’s plainly expressed intent that no contest clauses bestrictly construed.

Under a strict and narrow construction of the no contest clause in this case, the clause would be triggeredonly if a beneficiary sought to have the trust or some particular provision of the trust declared void, or oth-erwise nullified or set aside. Because the proposed state and federal court complaints in this case seek nei-ther to have the trust instrument nor any of its provisions declared void, or otherwise nullified or set aside,the filing of either complaint would not trigger the no contest clause. This is the only interpretation that isconsistent with the Legislature’s express command that no contest clauses be “strictly construed.” To do oth-erwise, as the majority in this case has done by disregarding the literal meaning of the words in the trust

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instrument in favor of attempting to divine the testator’s intent through declarations of his lawyers, is toabandon the rule of strict construction and to resurrect the very conflict in the case law that the Law RevisionCommission and the Legislature sought to put to rest with Probate Code section 21304.

C. Claims to a Community Property Interest

Probate Code section 21303 provides: “Except to the extent otherwise provided in this part, a no contest clauseis enforceable against a beneficiary who brings a contest within the terms of the no contest clause.” Despite thisbroad language, the Legislature did not intend that the statutes governing no contest clauses do so exclusively.Probate Code section 21301 states: “This part is not intended as a complete codification of the law governingenforcement of a no contest clause. The common law governs enforcement of a no contest clause to the extentthis part does not apply.” As the Law Revision Commission Comment to this section makes clear, by “the commonlaw” the commission meant “the contemporary and evolving rules of decision developed by the courts in exer-cise of their power to adapt the law to new situations and to changing conditions.” (Cal.Law Revision Com. com.,Deering’s Ann.Prob. Code, § 21301, supra, p. 576.) The comment also indicates that, in developing the commonlaw in this area, the courts are to look to, among other things, “the terms of the no contest clause and the char-acter of the beneficiary’s contest.” ( Id. at p. 577.) Here, Marlene’s argument that her proposed state court com-plaint should not be held to violate the no contest clause is based on the “character of [her] contest.”

Specifically, Marlene contends that, even if the no contest clause would be triggered by the filing of the pro-posed state court complaint, this court should determine that the clause is not enforceable against her because,under common law principles, a no contest clause does not apply against the assertion of a property interest notarising from the claimant’s status as an heir-for example, a community property interest.

This court has not previously addressed the question. Several Courts of Appeal have considered situations inwhich a claimant sought to establish an independent property interest in the donated property, with inconsis-tent results.FN2 I would hold that no contest clauses are not enforceable against a beneficiary who claims thatthe trustor or testator has disposed of a legal interest, such as a community property interest, in identified per-sonal or real property that is lawfully held by the beneficiary.

FN2. Compare, e.g., Estate of Kazian, supra, 59 Cal.App.3d 797, 130 Cal.Rptr. 908 (holding that assertion of com-munity property interest did trigger no contest clause) with Estate of Black (1984) 160 Cal.App.3d 582,206 Cal.Rptr. 663 (holding that assertion of “palimony” interest did not violate no contest clause) and Estate ofSchreck (1975) 47 Cal.App.3d 693, 697, 121 Cal.Rptr. 218 (holding that assertion of separate property and joint tenancy interests did not violate no contest clause, because “[t]he widow merely claimed what was already her own”).

My conclusion is based upon several considerations. First, enforcement of a no contest clause to prevent a ben-eficiary from challenging the trustor’s disposition of property that is not the trustor’s property, but is the prop-erty of another, would not aid the public policy favoring enforcement of such clauses. As this court stated in anearly case, “[a] testator has the lawful right to dispose of his property upon whatever condition he desires, aslong as the condition is not prohibited by some law or opposed to public policy····” ( Estate of Miller (1909)156 Cal. 119, 121, 103 P. 842, italics added.) A later case made the point more expansively: “ The property of atestatrix is hers to dispose of as she wills, and she is not called on to consult or follow the wishes or views ofher heirs or beneficiaries or of courts or juries···· She could give or refrain from giving, and could attach to hergifts any lawful condition which her reason or caprice might dictate. She was disposing of her own property andthe beneficiary claiming thereunder must take the gift, if at all, on the terms offered.” ( Estate of Fuller (1956)143 Cal.App.2d 820, 823, 300 P.2d 342, italics added.)

The underlying assumption of these cases is that a no contest clause is valid insofar as it assures that a testatoror trustor may, without challenge, dispose of property that belongs to him or her. But the converse of that propo-sition should also be true: under California law, a no contest clause should not be valid insofar as it allows a tes-tator or trustor to dispose of property that does not belong to him or her.

This point needs little elaboration. Nothing in the policy favoring no contest clauses was designed to encouragetheft. Yet if a testator or trustor lays claim to property that does not belong to him or her, and successfully insu-lates the disposition of such property from challenge by use of a no contest clause, theft is the result.



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Several familiar maxims of jurisprudence support my conclusion that a no contest clause cannot be invoked to penal-ize one who seeks to establish that the property the testator or trustor purported to dispose of was not the testator’sor trustor’s property. “When the reason of a rule ceases, so should the rule itself.” (Civ.Code, § 3510.) The reason forthe rule allowing no contest clauses is to allow the testator to dispose of his or her property, not the property ofanother. Moreover, “[n]o one can take advantage of his [or her] own wrong.” (Civ.Code, § 3517.) For the courts toenforce no contest clauses that are used to deprive individuals of their own property would allow the estates andtrusts of testators and trustors who have acted wrongly to take advantage of the wrongs of those testators and trustors.

A second, related rationale also supports my conclusion. As this court recognized in Estate of Miller, supra,156 Cal. at page 121, 103 P. 842, judicial enforcement of no contest clauses is also limited to situations in which theno contest condition is “not prohibited by some law or opposed to public policy····” But in this case, and in similarsituations, law and public policy do stand in opposition to the trustor’s employment of the no contest clause.

Allowing enforcement of a no contest clause to effectively prohibit assertion of statutorily guaranteed commu-nity property rights is contrary to the public policy embodied in Family Code sections 1100 and 1101. Those sec-tions provide that a spouse may not convey or dispose of community personal property without the writtenconsent of the other spouse, and grant the nonconsenting spouse a right of action against the other spouse forbreach of that duty to obtain written consent.

As mentioned earlier, Marlene’s proposed state court complaint alleged that she had a community interest in the ownership of Pacific Coast Ford, and in the car dealership’s pension plan. Although Frank apparently hadan ownership interest in Pacific Coast Ford before his marriage to Marlene, he became the sole owner and pres-ident of the company during the marriage. The pension plan was created during the marriage. Generally, “all[personal] property ··· wherever situated, acquired by a married person ··· is community property during the mar-riage.” (Fam.Code, § 760.) Accordingly, there is merit in Marlene’s argument that the property Frank transferredwithout her consent during the marriage was community property.

To allow a spouse to transfer community property during the marriage without the other spouse’s consent andthen allow enforcement of a no contest clause to effectively prevent assertion of community property rights isviolative of Family Code sections 1100, 1101 and the public policy embodied in these statutes.

The majority reaches a contrary conclusion. That conclusion, however, is based on a misunderstanding of thenature of no contest clauses, and a mistaken and apparently unexamined assumption that there is no legal dif-ference between an “election” under a testamentary instrument and a forfeiture worked by a no contest clause.Moreover, the majority’s conclusion is buttressed by a hypothetical example that illuminates its mistaken view ofthe respective rights and obligations of the parties.

The majority approves the use of no contest clauses to obstruct the assertion of community property rightsbecause no contest clauses are, in the majority’s view, indistinguishable from election clauses in testamentaryinstruments, which California courts have long approved. (See, e.g., Estate of Wolfe, supra, 48 Cal.2d 570, 574,311 P.2d 476.) But the majority’s reasoning is flawed, and again disregards legislative judgments as to the truenature of no contest clauses. It may be permissible for a trustor to require his or her surviving spouse to electbetween an interest as a beneficiary and the spouse’s interest in community property. But, as the Legislature indi-cated in the legislative history accompanying Probate Code section 21304, a no contest clause entails a forfeiture,not an election. Under a testamentary instrument containing a no contest clause, “the gift vests immediately uponthe testator’s death as a vested right and is just as much the beneficiary’s property as if acquired by his [or her]own labor; to wrench it away is precisely what is meant by a forfeiture.” (Selvin, Comment:Terror in Probate(1964) 16 Stan.L.Rev. 355, 368, fns. omitted.) A no contest clause, when it applies, destroys the surviving spouse’srights under the testamentary instrument simply because the spouse attempts to enforce his or her independentproperty rights, whether or not the spouse actually succeeds. This harsh result, which is precisely what is con-templated by every trustor or testator who chooses to employ a no contest clause, is simply not possible whena similar, though more benign, election clause is employed instead. An election clause destroys nothing.FN3

FN3. The majority evidences a fundamental misunderstanding of the forfeiture at issue here, and misreads mydissenting opinion. (See maj. opn., ante, at p. 176 of 27 Cal.Rptr.2d, p. 103 of 866 P.2d.) Marlene’s communityproperty rights are subject to conversion as a result of the operation of the no contest clause in this case, but,contrary to the majority’s assumption, the forfeiture is of her right to take under the trust instrument, not of herrights in community property.

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The majority also utilizes a hypothetical example to show the supposed unfairness of any rule that no contestclauses are not enforceable against a spouse who seeks to assert only his or her own interest in community prop-erty. (Maj. opn., ante, at p. 178 of 27 Cal.Rptr.2d, p. 105 of —- P.2d, fn. 14.) Under the majority’s example, a wifewho has children by a previous marriage is half-owner of a business in which she works with her children; duringher second marriage “she becomes sole owner.” ( Ibid.) “Wife understands that her business may be at least inpart community property, ··· but she nonetheless desires to leave the entire business to her two children fromher first marriage····” Accordingly, under the majority’s example, the wife inserts a no contest clause into her will,but under a rule rendering such forfeiture clauses unenforceable against a spouse who asserts his or her owninterest in community property, the no contest clause is ineffective. This, the majority says, is an “inequitableresult.” ( Ibid.)

The majority’s hypothetical discloses nothing so much as the majority’s dissatisfaction with the community prop-erty laws of this state. Under Family Code section 760, “all [personal] property ··· acquired by a married personduring the marriage ··· is community property.” Thus, under the majority’s hypothetical, the husband is a co-owner of the business with the wife, whether the wife, or the majority, care for that fact or not. (See Schnabelv.Superior Court (1993) 5 Cal.4th 704, 715, 21 Cal.Rptr.2d 200, 854 P.2d 1117.) There is nothing inequitable abouta rule that precludes one spouse from unilaterally disposing of property belonging in part to the other spouse.To the contrary, equitable considerations mandate that the interests of the nonconsenting spouse be protected.

And this simple and fair rule is in no way unworkable; it merely requires that the wife in the majority’s hypo-thetical disclose her plans in advance to her co-owner and partner-in-marriage, and obtain his consent. Themajority seems to find a requirement of disclosure and consent unacceptable; the majority comes dangerouslyclose to endorsing marital duplicity in financial matters.FN4

FN4. The majority also claims that a rule precluding one spouse from disposing of the other spouse’s interest incommunity property would be “counterproductive to the interests of surviving spouses” because it might“depriv[e] some spouses of the opportunity to receive a distribution of assets that is potentially more valuablethan ··· their community interests in the estate.” (Maj. opn., ante, at p. 176 of 27 Cal.Rptr.2d, p. 103 of 866 P.2d.)

This is misleading. Nothing in the proposed rule set forth in my dissent would preclude a testator from leavingany separate property to his or her spouse. Nor would anything in this dissent preclude use of an election clauseto require a spouse to choose between taking under a trust or taking under the community property laws. Theonly “counterproductive” effect of this dissent would be to discourage one spouse from unilaterally and secretlydisposing of assets of the other partner to a marriage.

Our law should encourage spouses to deal fairly and openly with each other, and discourage secretive dealingsof the sort the majority approves in this case.

Because enforcement of a no contest clause to penalize the assertion of community property rights does notserve the underlying purpose of no contest clauses-to permit the testator or trustor to dispose of his or her ownproperty as desired-and because enforcement of a no contest clause that shields an improper disposition of prop-erty belonging to the testator’s or trustor’s spouse would place the court’s seal of approval on a violation of thefiduciary obligations imposed on spouses by the community property laws, I would hold that no contest clausesare not enforceable under these circumstances.

III. NO CONTEST CLAUSES AND ERISA PREEMPTION

According to the allegations of Marlene’s proposed federal court complaint, Pacific Coast Ford Employees’ pen-sion plan is an employee benefit plan as defined by 29 United States Code section 1002. Under 29 United StatesCode section 1055(a), “[e]ach pension plan ··· shall provide that- ··· (2) in the case of a vested participant whodies before the annuity starting date and who has a surviving spouse, a qualified preretirement survivor annuityshall be provided to the surviving spouse of such participant.” The plan, a copy of which is attached to the pro-posed complaint, appears to comply with the requirement for qualified preretirement survivor annuities. It spec-ifies that each participant must designate a beneficiary to receive all death benefits, that a participant who hasan eligible spouse must designate that spouse as the beneficiary unless the spouse waives the right to be so des-ignated, and that if no beneficiary is designated, all death benefits are payable to the participant’s surviving



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spouse. As noted above, Marlene’s proposed federal court complaint asserts that she did not waive any of herrights under ERISA or the plan,FN5 and that the plan’s trustees have failed and refused to pay her any benefits,to provide an accounting, or to provide any explanation of why the benefits have not been paid.

FN5. Title 29 United States Code section 1056(d) states that “(1) Each pension plan shall provide that benefitsprovided under the plan may not be assigned or alienated.”

There is an exception for “qualified domestic relations orders,” which are court judgments or orders that relateto child support, alimony payments or marital property rights. (28 U.S.C. § 1056(d)(3).) No party contends, how-ever, that the alleged alienation of Marlene’s rights to death benefits under the plan was made as part of a qual-ified domestic relations order.

A. Express Preemption

The majority concludes that ERISA does not preempt operation of the no contest clause in this case. I disagree.California’s no contest law is preempted by ERISA to the extent it interferes with the exercise of federally guar-anteed pension rights.

“ERISA is a comprehensive federal statutory scheme designed to promote the interests of employees and theirbeneficiaries in employee benefit plans.” ( Carpenters So.Cal.Admin.Corp.v.El Capitan Development Co. (1991)53 Cal.3d 1041, 1047, 282 Cal.Rptr. 277, 811 P.2d 296.) ERISA contains an express preemption clause specifyingthat the federal regulatory scheme “shall supersede any and all State laws insofar as they may now or hereafterrelate to any employee benefit plan····” (29 U.S.C. § 1144(a).) “The term ‘State law’ includes all laws, decisions,rules, regulations, or other State action having the effect of law, of any State.” (29 U.S.C. § 1144(c)(1).)

This preemption provision is broad in its sweep. The United States Supreme Court has characterized it as “delib-erately expansive” ( Pilot Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39),“broadly worded” ( Ingersoll-Rand Co. v.McClendon (1990) 498 U.S. 133, 138, 111 S.Ct. 478, 482, 112 L.Ed.2d 474),and “ ‘conspicuous for its breadth’ ” ( Morales v.Trans World Airlines, Inc. (1992) 504 U.S. 374, ——, 112 S.Ct.2031, 2037, 119 L.Ed.2d 157). The statutory words “relate to” were used by Congress “in their broad sense, reject-ing more limited pre-emption language that would have made the clause ‘applicable only to state laws relatingto the specific subjects covered by ERISA.’ ” ( Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 138, 111S.Ct. at p. 482.) Thus, a state law “relates to” a benefit plan “ ‘ “if it has a connection with, or reference to sucha plan.” ’ ” ( Pilot Life, supra, 481 U.S. at p. 47, 107 S.Ct. at p. 1553.) “ ‘Because of the breadth of the preemp-tion clause and the broad remedial purpose of ERISA, “state laws found to be beyond the scope of [the pre-emption clause] are few.” ’ ” ( Carpenters So. Cal.Admin. Corp. v. El Capitan Development Co., supra, 53 Cal.3dat pp. 1048-1049, 282 Cal.Rptr. 277, 811 P.2d 296.)

The breadth of ERISA preemption is not limitless. “Some state actions may affect employee benefit plans in tootenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” ( Shaw v. DeltaAir Lines, Inc. (1983) 463 U.S. 85, 100, fn. 21, 103 S.Ct. 2890, 2901, fn. 21, 77 L.Ed.2d 490.) As with all questionsof preemption, however, “ ‘ “ ‘[t]he purpose of Congress is the ultimate touchstone.’ ” ’ ” ( Carpenters So. Cal.Admin.Corp. v. El Capitan Development Co., supra, 53 Cal.3d at p. 1047, 282 Cal.Rptr. 277, 811 P.2d 296, quotingIngersoll-Rand Co. v.McClendon, supra, 498 U.S. at p. 138, 111 S.Ct. at p. 482.)

The trustees point out that neither the no contest statutes nor the no contest clause in the trust instrument makesany explicit reference to ERISA, and stress that if Marlene elects to forego taking under the trust, she is free topursue her ERISA claims.

I find unpersuasive the assertion that, because the no contest law makes no express reference to ERISA, therecan be no preemption. The high court has held that ERISA preemption is not limited to “state laws specificallydesigned to affect employee benefit plans” ( Shaw v.Delta Air Lines, supra, 463 U.S. at p. 98, 103 S.Ct. at p. 2900),and that “even indirect state action bearing on private pensions may encroach upon the area of exclusivefederal concern” ( Alessi v.Raybestos-Manhattan, Inc. (1981) 451 U.S. 504, 525, 101 S.Ct. 1895, 1907, 68 L.Ed.2d 402).It is the substance of a law’s effect on ERISA, not its label or form, that controls. ( Ibid.)

The majority concludes that the no contest law as applied in this case is too tenuous, remote and peripheral toERISA plans for express ERISA preemption to apply.

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I cannot agree. Here, the application of the no contest law would interfere with the operation of the plan underfederal law. The main practical effect of the no contest clause, if valid under California law, would be to conditionthe exercise of Marlene’s federally protected right to receive ERISA benefits, or even to seek a judicial determi-nation of her entitlement to benefits, on a forfeiture of benefits under the trust instrument.

The leading federal appellate case that has addressed the question of ERISA preemption of state testamentary law hascome to a conclusion similar to mine in this case. In MacLean v.Ford Motor Co. (7th Cir.1987) 831 F.2d 723, 728, thecourt held that “when ··· the terms of an employee pension plan under ERISA provide a valid method for deter-mining the beneficiary, that mechanism cannot be displaced by the provisions of a will.” Here, the ERISA planprovided a method for determining the beneficiary. But, through use of the no contest law, Frank sought to dis-place Marlene as the beneficiary.

Other federal courts faced with analogous situations have reached results in accord with that of the MacLeancourt. In Ablamis v.Roper (9th Cir.1991) 937 F.2d 1450, 1459-1460, the Ninth Circuit held that “[p]ermitting a non-employee spouse to bequeath one-half of a surviving employee’s pension benefits to a third party [underCalifornia community property law] would do ‘major damage’ [citation] to ERISA’s objective of ensuring andstrengthening pension benefits for retirees and their dependents” and was, therefore, preempted. Similarly, inIron Workers Mid-South Pension Fund v. Stoll (E.D.La.1991) 771 F.Supp. 781, 785-786, the court held thatOklahoma domestic property statutes could not operate to change the beneficiary of a pension plan deathbenefit. (Accord, Meek v.Tullis (W.D.La.1992) 791 F.Supp. 154, 155-156; see also Gilbert v.Burlington Industries,Inc. (2d Cir.1985) 765 F.2d 320, 327; Aetna Life Ins. Co. v.Borges (2d Cir.1989) 869 F.2d 142, 147 & fn. 4.)

As noted above, under the terms of the plan, and in accordance with the substantive terms of ERISA, Marlene isthe beneficiary of death benefits. By contrast, under the trust instrument as construed by the majority, all prop-erty subject to the trust, including all rights in the plan, is swept into the trust res and distributed according tothe trust formulas. Under the trust instrument as the majority have construed it, Marlene is divested of her rightsas the plan beneficiary under the terms of the plan and ERISA.

To be sure, this divestment is not absolute. As the trust emphasizes in its brief, even under the no contest lawMarlene remains free to pursue her rights under ERISA-at the cost of forfeiting all rights to take under the trust.But the express preemption clause of ERISA does not supersede only those state laws that necessarily have theunconditional effect of depriving a statutorily designated beneficiary of her rights.

Indeed, the high court has several times made clear that ERISA’s preemption provision “ ‘displace[s] all state laws thatfall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements.’ ” ( Mackeyv.Lanier Collection Agency & Service (1988) 486 U.S. 825, 829, 108 S.Ct. 2182, 100 L.Ed.2d 836 (italics added), quot-ing Metropolitan Life Ins.Co.v.Massachusetts (1985) 471 U.S. 724, 739, 105 S.Ct. 2380, 2185, 85 L.Ed.2d 728.) Rather,ERISA’s preemption clause supersedes all state laws that “relate to” operation of a plan, unless the effect is “ten-uous, remote, or peripheral.” I cannot say that the effect of the no contest law on the ERISA plan in this case is“tenuous, remote, or peripheral.” On the contrary, the effect here is direct and substantial: Marlene is compelledto forgo her federally protected right to benefits under ERISA unless she forfeits her right to take under the trust.I conclude that the operation of the no contest law in this case “relates to” the operation of a plan under ERISA,and therefore is preempted under ERISA’s express preemption clause.

B. Implied Preemption

Even when there is no express preemption under ERISA, the United States Supreme Court has held that a statelaw or action may also be superseded by ERISA under the doctrine of implied preemption. ( Ingersoll-Rand Co.v. McClendon, supra, 498 U.S. 133, 111 S.Ct. 478.) Generally, the doctrine of implied preemption applies whena challenged state action “ ‘stands as an obstacle to the accomplishment and execution of the full purposes andobjectives of Congress.’ ” ( English v.General Electric Co. (1990) 496 U.S. 72, 79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65,quoting Hines v.Davidowitz (1941) 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581.)

Here, the issue is whether application of the state no contest law to discourage assertion of rights underERISA stands as such an obstacle. The majority concludes it does not. The majority is wrong. In Pilot LifeIns. Co. v. Dedeaux, supra, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39, the United States Supreme Courtdeclared that in ERISA, “Congress set out to ‘protect ··· participants in employee benefit plans and their beneficiaries,



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by ··· establishing standards of conduct ··· for fiduciaries of employee benefit plans and by providing forappropriate remedies, sanctions, and ready access to the Federal Courts.’ ” ( Id. at p. 44, 107 S.Ct. at p. 1551,quoting 29 U.S.C. § 1001(b).)

Two other statutes are relevant. Title 29 United States Code section 1140 provides, in pertinent part:

“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a par-ticipant or beneficiary for exercising any right to which he is entitled under the provisions of an employee ben-efit plan, [or] this title ··· or for the purpose of interfering with the attainment of any right to which such participantmay become entitled under the plan [or this title]····”

And 29 United States Code section 1132(a) provides: “A civil action may be brought- ··· (1) by a participant orbeneficiary- ··· (B) to recover benefits due to him under the terms of his plan, to enforce his rights under theterms of the plan, or to clarify his rights to future benefits under the terms of the plan; ··· (3) by a participant,beneficiary, or fiduciary ··· (B) ··· (ii) to enforce any provisions of this subchapter or the terms of the plan····”

Thus, through these statutes Congress has expressly granted beneficiaries the right to bring legal actions toenforce their rights to plan benefits. Here, Marlene’s proposed federal complaint falls “squarely within the ambit”of actions contemplated by these statutes. ( Ingersoll-Rand Co.v.McClendon, supra, 498 U.S. at p. 142, 111 S.Ct.at p. 484.)

The legislative history also unmistakably conveys the intent of Congress with regard to lawsuits by plan benefi-ciaries. The House Report states that “[t]he primary purpose of [ERISA] is the protection of individual pensionrights····” (H.Rep. No. 93-533, 1st Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News, p. 4639.) TheSenate Report states that the intent of Congress was “to remove ··· procedural obstacles which in the past appearto have hampered effective enforcement of fiduciary responsibilities ··· or recovery of benefits due to partici-pants.” (Sen.Rep. No. 93-127, 1st Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 4639, 4871.)

Therefore, in this case, not only is Marlene’s proposed federal court complaint of a type specifically authorizedby Congress, but the assertion of the state no contest law as a barrier to her recovery of ERISA rights itself isunlawful under 29 United States Code section 1140. That is, the evident purpose of the no contest clause in thetrust instrument is to “interfer[e] with the attainment of [a] right” to which Marlene became entitled under ERISA.

In any event, the United States Supreme Court has made clear that when it “ ‘ “may fairly be assumed that theactivities which a State purports to regulate are protected” ’ ” by ERISA, “ ‘ “due regard for the federal enactmentrequires that state jurisdiction must yield.” ’ ” ( Ingersoll-Rand Co.v.McClendon, supra, 498 U.S. at p. 145, 111 S.Ct.at p. 486.) Here, it may fairly be assumed that Marlene’s proposed federal complaint is within the contemplationof the drafters of ERISA. Accordingly, any state regulation that stands as an obstacle to assertion of her rightsunder ERISA, including the operation of a no contest clause, must yield and is preempted. The majority’s con-trary conclusion is erroneous. State testamentary law cannot stand as an obstacle to the achievement of the con-gressional goal, even if the federally protected party is not completely divested of her right to pursue the federalremedy, but only substantially discouraged.

CONCLUSION

In enacting the California Law Revision Commission’s proposed changes to the Probate Code sections governingno contest clauses, including the rule that such clauses be “strictly construed” (Prob.Code, § 21304), the Legislaturesought to implement “the public policy to avoid a forfeiture” and to rectify the situation created by previous law,under which “a beneficiary cannot predict with any consistency when an activity will be held to fall within the pro-scription of a particular no contest clause.” (Recommendation Relating to No Contest Clauses, supra, 20 Cal.LawRevision Com.Rep. at p. 12.) In this case, the majority turns the statutory revision on its head, expansively constru-ing a no contest clause to reach a conclusion resulting in a forfeiture that is plainly unsupported by the languageof the trust instrument. In so doing, the majority undermines the legislative scheme, and unavoidably resurrects thevery controversy and confusion the Law Revision Commission and the Legislature sought to lay to rest.

It is a fundamental principle of community property law that property acquired during the marriage is presumedto be community property, and it is equally fundamental that one spouse cannot dispose of the property of thecommunity without the other spouse’s consent. In this case, the majority demonstrates its evident dissatisfaction

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with these fundamental principles by holding that one spouse can indeed dispose of the property of the com-munity without the other spouse’s knowledge or consent, and our courts will allow the spouse to shield hiswrongful action through enforcing a no contest clause against the other spouse’s assertion of her communityproperty rights. Ironically, the majority claims that “fairness” supports its result.

The majority vehemently denies that it has endorsed any breach of marital trust in this case. (Maj. opn., ante, atp. 182 of 27 Cal.Rptr.2d, p. 109 of 866 P.2d.) But the majority cannot deny that, under its rule, a husband can,without the knowledge or consent of his wife, take his wife’s property and give it to his relatives as part of hisestate plan. If this underhanded maneuver is not a breach of trust, nothing is.

In enacting ERISA, the primary purpose of the United States Congress was to protect individual pension rights,and the Congress explicitly prohibited any “interfer[ence] with the attainment of any right” to which a benefici-ary might be entitled under an authorized pension plan. (29 U.S.C. § 1140.) In this case, contrary to the unam-biguously expressed will of Congress, the majority holds that a no contest clause can indeed stand as a successfulobstacle to a widow’s assertion of her federally protected pension benefits.

I cannot agree. I would reverse the judgment of the Court of Appeal.

40 N.Y.2d 1, 351 N.E.2d 647, 386 N.Y.S.2d 1

Court of Appeals of New York.

In the Matter of the ESTATE of Julius WEINSTOCK, Deceased.Abraham A. KATZ et al., Respondents.

v.Eva R. USDAN et al., Appellants.

May 13, 1976.

In a probate proceeding, the Surrogate’s Court, Nassau County, John D. Bennett, S., struck provision of willnaming attorneys as executors and revoked preliminary letters testamentary granted to them, and appeal wastaken. The Supreme Court, Appellate Division, 47 A.D.2d 542, 363 N.Y.S.2d 104, modified decree by striking pro-vision declaring designation of attorneys as executors invalid and striking decretal paragraphs revoking prelim-inary letters testamentary, and appeal was taken. The Court of Appeals, Jones, J., held that evidence supportedconclusion that attorneys had practiced such constructive fraud on testator as to preclude such attorneys fromserving as executors of his will.

Order reversed and decree of Surrogate’s Court reinstated.

Courts are warranted in interfering with testator’s manifested intention and excluding a stranger attorney asan executor only if evidence warrants an affirmative finding of impropriety and overreaching, predicatedon more than mere fact of appointment. Code of Professional Responsibility, Canon 5 (EC 5-6), JudiciaryLaw Appendix.

Louis Levine, Belle Harbor, for appellants.

Lawrence Waldman, New York City, for respondents.

JONES, Judge.We hold that in the circumstances disclosed by this record the Surrogate was warranted in concluding that therehad been such a breach of their professional responsibility to the decedent as to require that the lawyers namedas executors of his will be precluded from serving in that capacity.

The question is not whether the proof would be sufficient to sustain a finding of such undue influence as to war-rant denying the decedent’s will admission to probate. The issue is much narrower and concededly has receivedalmost no articulated judicial attention. Was there here such impropriety and overreaching by the father-son teamof attorneys as to warrant the Surrogate in denying them the right to serve as coexecutors of the decedent’s will?Notably the Surrogate saw and heard all the witnesses. In our view particular weight should be accorded the



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evaluation which he placed on what are largely factual matters. We defer to his appraisal of the relative credi-bility of the testimony of the two attorney-draftsmen with respect to transactions to which in great measure theywere the only surviving witnesses.

The decedent was an elderly man, 82 years of age, with physical infirmities whose mental acuities were waning.The proof was that some three months prior to the execution of the will in question the decedent told Ernest S.Canfield, a friend of 40 years and his financial advisor for the past 25 years, that he wished to update his willand asked Canfield if he could recommend an attorney. Canfield recommended Abraham A. Katz, an attorneywith whom he was socially acquainted but who had never rendered professional services to him. A week or 10 days before the will was executed the decedent’s son-in-law met Abraham Katz to drive him to the decedent’shome. To the son-in-law’s surprise, Katz, Sr., brought his son, Katz, Jr., along, as ‘an expert in connection withany questions which might come up during my conference with (the decedent)’. In fact Katz, Jr., had been admit-ted to practice for only three years. Prior to this occasion both Katz, Sr., and Katz, Jr., had been total strangersto the decedent and the members of his family.

The testimony was that this first conference with the decedent lasted from two to three hours. The decedentshowed the attorneys his current will and they had been informed that he no longer wished to have his bankserve as his executor because he wanted to avoid the fee which the bank would normally expect to receive forserving in such capacity. The attorneys were also told that there had been discussion of the possible appoint-ment of the decedent’s daughter and son-in-law because the decedent knew they would not charge a fee. Theyounger Katz testified that there was discussion of the appointment of an executor or executors and of the number of executors. The emphasis, however, was always on ‘executors’ in the plural, yet, as the attorneysadmitted, they never told the decedent that if there were to be two executors each would be entitled to receivefull commissions because, as the attorneys knew, the estate would be over $100,000. The only reasons suggestedby Katz, Jr., on trial for having more than one executor was to have someone who could serve in the event ofthe death, incapacity or disappearance of an executor and to have a third executor who could resolve any stand-off between the other two.

The new will was prepared appointing the two Katzes and Mr. Canfield as executors. Without having forwardeda copy of the proposed will for the decedent’s advance examination (and apparently without even inquiringwhether the decedent wished to see the will prior to the occasion for its execution), the two attorneys returnedwith the typed will on July 23 and in a conference which lasted perhaps three quarters of an hour the will wasexecuted.

We are persuaded that this record presents evidence which supports the Surrogate’s conclusion that there wasoverreaching by a father-son combination of attorneys who before the transaction in question had been totalstrangers to their client. Respondents ask us to credit their claim that this decedent independently and freelyelected to impose that special confidence in these two strangers which is implicit in the designation of any execu-tor, notwithstanding that he had never seen either before and that neither had ever rendered any professionalservices to him on the basis of which he might have formed an opinion as to their professional competence orpersonal integrity. Even though they knew that the decedent was seeking to avoid executors’ fees, these attor-neys concededly never told him that if they were both appointed his executors each would receive full commis-sions. The reasons advanced for multiple executors were transparently hollow; provision could have been madefor the possibility of a vacancy in the office of executor by the appointment of a successor fiduciary as well asby the appointment of coexecutors. No sufficient reason was made to appear for the appointment of eitherstranger-attorney, to say nothing of any justification for appointing both. It is not without some significance thatwhen Mr. Canfield (who had recommended the senior Katz and then himself had been named without his knowl-edge as a third executor) discovered that both father and son had been named as executors, he promptlyrenounced.

In consequence of their engagement as the decedent’s attorneys, there unquestionably came into being aconfidential relationship which imposed on the attorneys a special obligation both of full disclosure and fair deal-ing. These attorneys failed in their obligations in these regards to such an extent that the Surrogate found themguilty of constructive fraud.

While recognizing that the provisions of the Code of Professional Responsibility are not to be elevated to thestatus of decisional or statutory law, nonetheless the courts should not denigrate them by indifference (cf. Peoplev. Hobson, 39 N.Y.2d 479, 484-485, 384 N.Y.S.2d 419, 422-423, 348 N.E.2d 894, 897-899; Matter of Rosenthal v.

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Harwood, 35 N.Y.2d 469, 363 N.Y.S.2d 937, 323 N.E.2d 179). That code contains a precisely pertinent provision:‘EC 5-6. A lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in aninstrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyerto avoid even the appearance of impropriety.’ In this instance the injunctions of both sentences of this admoni-tion appear to have been violated. The Surrogate found in effect that these attorney-draftsmen were legallyresponsible for their own designation as coexecutors; surely it cannot be said that any care whatsoever was takento avoid what was at the very least the appearance of impropriety.

As the learned Surrogate noted, the precise issue presented in this case is a novel one which has not beenaddressed in any case in our courts and appears not to have been confronted in other jurisdictions. The custom-arily encountered contention is that such undue influence was exercised on the decedent as to have vitiated theexecution of the entire will. That is not the contention here; the issue is narrower and of a different nature. It isnot asserted that a will may be struck down in part or that the courts may excise one particular provision. Bycontrast it is urged that while this will has been properly admitted to probate in its entirety, these attorney-draftsmencannot be permitted to take advantage of the constructive fraud which they practiced on the decedent (cf.Riggs v. Palmer, 115 N.Y. 506, 511-512, 22 N.E. 188, 189-190). Thus they should be held to be precluded in con-sequence of their own conduct, from accepting designation as executors.

It is generally the case that any rule that a bequest to an attorney-draftsman gives rise to an inference or per-haps a presumption of undue influence does not apply where the attorney is named executor only (see, e.g.,Ann., 63 ALR 948). In this instance it might perhaps be argued, however, that the designation of two attorney-partners as coexecutors operates to make them ‘beneficiaries’ to the extent that for what may amount to a singleexecutor’s performance of duty they will become entitled to double commissions. Where the attorney-draftsmanis a beneficiary we have said, ‘The law, recognizing the delicacy of the situation, requires the lawyer who draftshimself a bequest to explain the circumstances and to show in the first instance that the gift was freely and will-ingly made.’ (Matter of Putnam, 257 N.Y. 140, 143, 177 N.E. 399, 400).

There is nothing in this record to suggest that the appointment of the two Katzes was so integral to the dece-dent’s dispositive scheme or to the administration of his estate that to deny them the right to serve as executorswould frustrate any basic intention of the decedent. There is no linkage between the dispositive plan and theindividuals designated as executors. They had no peculiar or detailed knowledge or background with respect tothe decedent’s affairs. In no other respect did either bring any special or unique competence to the administra-tion of the decedent’s estate. Neither enjoyed any position of noteworthy confidence or trust. In short, there isnothing to suggest that their removal would be counter to any but a very narrow aspect of the decedent’s man-ifested intention, or that the administration of the decedent’s estate would in any way suffer in consequence oftheir unavailability.

On the basis of our examination of the proof in this case and our analysis of the pertinent principles of law, wefind no warrant for disturbing the conclusion of the Surrogate that these two attorneys were guilty of havingpracticed such constructive fraud on the decedent as to preclude their serving as executors of his will.

In reaching the conclusion we do in this instance, we do not wish to be understood as implying that when atestator selects the attorney who draws his will as his executor any presumption or inference of improprietyarises from the circumstance that such attorney is otherwise a stranger. That fact alone does not give rise to anyobligation on the part of the attorney to come forward with an explanation. It may well be that the testator soughtto assure that his estate would be administered by an outsider free from the competing interference of obsequiousmembers of his family. In any event, it is only where, as here, the evidence warrants an affirmative finding ofimpropriety and overreaching, predicated on more than the fact of appointment, that courts would be warrantedin interfering with the testator’s manifested intention and excluding the attorney as executor.

Accordingly, the order of the Appellate Division should be reversed and the decree of Surrogate’s Court shouldbe reinstated.

BREITEL, C.J., and JASEN, GABRIELLI, WACHTLER, FUCHSBERG and COOKE, JJ., concur.

Order reversed, with costs, payable by respondents Katz, and the decree of the Surrogate’s Court, Nassau County,reinstated.



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Chapter 3

Cruzan v. Director, Missouri Department of Health, et al., 497 U.S. 261, 110 S. Ct. 2841, 111 L.Ed. 2d 224 (1990).

People of the State of Michigan v. Jack Kevorkian ,639 N.2d 291 (Mich.App.2001)

Washington, v. Glucksberg, 117 S. Ct. 2258, 138 L.Ed.2d 772 (1997).

Chapter 4

In the Matter of The Guardianship of Jessie K. Simmons, 6th Dist. No. WD-02-039, 2003-Ohio-5416

Chapter 6

Marvin v. Marvin, 122 Cal. App.3d 871, 176 Cal. Rptr. 555 (1981)

In re Estate of LeRoy A. Hillegass, 431 Pa. 144, 244 A.2d 672 (1968)

In the Matter of the Estate of Arthur J. Roccamonte, Sr., 174 N.J. 381; 808 A.2d; (2002)

Martin v. Farber, 68 Md. App. 137, 510 A.2d 608 (1986).

Baehr v. Lewin 852 P.2d 44 (Haw. 1993)

In re Marriage of Donna J. Robinson v. Robinson, 184 Ill.App.3D 235, 539 N.E.2D 1365, 132 Ill. Dec. 559 (1989).

122 Cal.App.3d 871, 176 Cal.Rptr. 555

Court of Appeal, Second District, Division 3, California.Michelle MARVIN, aka Michelle Triola, Plaintiff and Respondent,

v.Lee MARVIN, Defendant and Appellant.

Civ. 59130.Aug. 11, 1981.

Female cohabitant brought suit asking that male cohabitant be ordered to pay to her a reasonable sum per monthas and for her support and maintenance. The Superior Court, Los Angeles County, Arthur K. Marshall, J., orderedthat defendant pay to plaintiff the sum of $104,000, to be used by her primarily for her economic rehabilitation, anddefendant appealed. The Court of Appeal, Cobey, J., held that: (1) challenged rehabilitation award was not withinissues framed by pleadings and thus special findings of fact and conclusions of law in support of award would bedisregarded, and (2) furthermore, where female cohabitant benefited economically and socially from her relation-ship with male cohabitant and suffered no damage therefrom, even with respect to its termination, and where malecohabitant never had any obligation to pay female cohabitant a reasonable sum as and for her maintenance andmale was not unjustly enriched by reason of relationship or its termination and never acquired anything of valuefrom female cohabitant by any wrongful act, female cohabitant was not entitled to rehabilitative award.As modified, affirmed.Klein, P. J., dissented with opinion.

Goldman & Kagon, A. David Kagon and Charles D. Meyer, Los Angeles, for defendant and appellant.Marvin M. Mitchelson and Penelope Mercurio, Los Angeles, for plaintiff and respondent.

COBEY, Associate Justice.Defendant, Lee Marvin, appeals from that portion of a judgment ordering him to pay to plaintiff, Michelle Marvin,the sum of $104,000, to be used by her primarily for her economic rehabilitation.

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Defendant contends, among other things, that the challenged award is outside the issues of the case as framedby the pleadings of the parties (see Code Civ.Proc., s 588) and furthermore lacks any basis in equity or in law.FN1

We agree and will therefore modify the judgment by deleting therefrom the challenged award.

FN1. Defendant challenges the constitutionality of the award on various grounds, but we will not reach the issuesthere raised because it is unnecessary to do so. (See People v. Green (1980) 27 Cal.3d 1, 50, 164 Cal.Rptr. 1, 609P.2d 468; People v. Kozden (1974) 36 Cal.App.3d 918, 123, 111 Cal.Rptr. 826.)

FACTS

This statement of facts is taken wholly from the findings of the trial court, which tried the case without ajury. The parties met in June 1964 and started living together occasionally in October of that year. They livedtogether almost continuously (except for business absences of his) from the spring of 1965 to May or Juneof 1970, when their cohabitation was ended at his insistence. This cohabitation was the result of an initialagreement between them to live together as unmarried persons so long as they both enjoyed their mutualcompanionship and affection.

More specifically, the parties to this lawsuit never agreed during their cohabitation that they would combine theirefforts and earnings or would share equally in any property accumulated as a result of their efforts, whether indi-vidual or combined. They also never agreed during this period that plaintiff would relinquish her professionalcareer as an entertainer and singer in order to devote her efforts full time to defendant as his companion andhomemaker generally. Defendant did not agree during this period of cohabitation that he would provide all ofplaintiff’s financial needs and support for the rest of her life.

Furthermore, the trial court specifically found that: (1) defendant has never had any obligation to pay plaintiff areasonable sum as and for her maintenance;FN2 (2) plaintiff suffered no damage resulting from her relationshipwith defendant, including its termination and thus defendant did not become monetarily liable to plaintiff at all;(3) plaintiff actually benefited economically and socially from the cohabitation of the parties, including paymentby defendant for goods and services for plaintiff’s sole benefit in the approximate amount of $72,900.00, pay-ment by defendant of the living expenses of the two of them of approximately $221,400.00, and other substan-tial specified gifts;FN3 (4) a confidential and fiduciary relationship never existed between the parties with respectto property; (5) defendant was never unjustly enriched as a result of the relationship of the parties or of the serv-ices performed by plaintiff for him or for them; (6) defendant never acquired any property or money from plain-tiff by any wrongful act.

FN2. The judgment under appeal tracks this finding in the following language: “Defendant never had, anddoes not now have, the duty and obligation to pay to plaintiff a reasonable sum as and for her support andmaintenance.”

FN3. The trial court also found that “Defendant made a substantial financial effort to launch Plaintiff’s career asa recording singer and to continue her career as a nightclub singer.”

The trial court specifically found in support of its challenged rehabilitation award that the market value of defen-dant’s property at the time the parties separated exceeded $1 million, that plaintiff at the time of the trial of thiscase had been recently receiving unemployment insurance benefits, that it was doubtful that plaintiff could returnto the career that she had enjoyed before the relationship of the parties commenced, namely, that of singer, thatplaintiff was in need of rehabilitation i. e., to learn new employable skills, that she should be able to accomplishsuch rehabilitation in two years and that the sum of $104,000 was not only necessary primarily for such rehabil-itation, but also for her living expenses (including her debts) during this period of rehabilitation, and that defen-dant had the ability to pay this sum forthwith.

Moreover, the trial court concluded as a matter of law that inasmuch as defendant had terminated the rela-tionship of the parties and plaintiff had no visible means of support, “in equity”, she had a right to assis-tance by defendant until she could become self-supporting. The trial court explained that it fixed the awardat the highest salary that the plaintiff had ever earned, namely, $1,000 a week for two years, although plain-tiff’s salary had been at that level for only two weeks and she ordinarily had earned less than one-half thatamount weekly.



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DISCUSSION

1. The challenged rehabilitation award is not within the issues framed by the pleadings.

This is a judgment roll appeal in the sense that we have no transcript of the evidence taken at the apparentlylengthy trial below. The issues in a lawsuit are, aside from those added by a pretrial order, either those framedby the pleadings or as expanded at trial. (See 4 Witkin, Cal.Procedure (2d ed. 1971) Trial, s 336, p. 3138.) Here,however, since we do not have before us the evidence taken at trial and there was no pretrial order expandingthe issues, we can look only to the pleadings to determine the issues between the parties.

Plaintiff’s amended complaint, upon which this action went to trial, asks, with respect to the support of plaintiffby defendant, only that defendant be ordered to pay to plaintiff a reasonable sum per month as and for her sup-port and maintenance. Plaintiff did not ask in this basic pleading for any limited rehabilitative support of the typethe trial court apparently on its own initiative subsequently awarded her. Consequently, the special findings offact and conclusions of law in support of this award must be disregarded as not being within the issues framedby the pleadings. (See Crescent Lumber Co. v. Larson (1913) 166 Cal. 168, 171, 135 P. 502; Gardiana v. SmallClaims Court (1976) 59 Cal.App.3d 412, 421, 130 Cal.Rptr. 675.) When this is done, the challenged portion of thejudgment becomes devoid of any support whatsoever and therefore must be deleted.

2. In any event there is no equitable or legal basis for the challenged rehabilitative award.

The trial court apparently based its rehabilitative award upon two footnotes in the opinion of our Supreme Courtin this case. (Marvin v. Marvin (1976) 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106.) These are footnotes 25 and26, which respectively read as follows:

“Our opinion does not preclude the evolution of additional equitable remedies to protect the expectationsof the parties to a nonmarital relationship in cases in which existing remedies prove inadequate; the suit-ability of such remedies may be determined in later cases in light of the factual setting in which they arise.”(Id. at p. 684, 134 Cal.Rptr. 815, 557 P.2d 106.)

“We do not pass upon the question whether, in the absence of an express or implied contractual obligation, aparty to a nonmarital relationship is entitled to support payments from the other party after the relationship ter-minates.” (Id. at p. 685, 134 Cal.Rptr. 815, 557 P.2d 106.)

There is no doubt that footnote 26 opens the door to a support award in appropriate circumstances. Likewise,under footnote 25, equitable remedies should be devised “to protect the expectations of the parties to a nonmar-ital relationship.” The difficulty in applying either of these footnotes in the manner in which the trial court hasdone in this case is that, as already pointed out, the challenged limited rehabilitative award of the trial court is notwithin the issues of the case as framed by the pleadings and there is nothing in the trial court’s findings to sug-gest that such an award is warranted to protect the expectations of both parties.

Quite to the contrary, as already noted, the trial court expressly found that plaintiff benefited economically andsocially from her relationship with defendant and suffered no damage therefrom, even with respect to itstermination. Furthermore, the trial court also expressly found that defendant never had any obligation to payplaintiff a reasonable sum as and for her maintenance and that defendant had not been unjustly enriched byreason of the relationship or its termination and that defendant had never acquired anything of value from plain-tiff by any wrongful act.

Furthermore, the special findings in support of the challenged rehabilitative award merely established plaintiff’sneed therefor and defendant’s ability to respond to that need. This is not enough. The award, being nonconsen-sual in nature, must be supported by some recognized underlying obligation in law or in equity. A court of equityadmittedly has broad powers, but it may not create totally new substantive rights under the guise of doing equity.(See Rosenberg v. Lawrence (1938) 10 Cal.2d 590, 594-595, 75 P.2d 1082; Lande v. Jurisich (1943) 59 Cal.App.2d613, 618, 139 P.2d 657.)

The trial court in its special conclusions of law addressed to this point attempted to state an underlying obligationby saying that plaintiff had a right to assistance from defendant until she became self-supporting. But this spe-cial conclusion obviously conflicts with the earlier, more general, finding of the court that defendant has never

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had and did not then have any obligation to provide plaintiff with a reasonable sum for her support and main-tenance and, in view of the already-mentioned findings of no damage (but benefit instead), no unjust enrich-ment and no wrongful act on the part of defendant with respect to either the relationship or its termination, it isclear that no basis whatsoever, either in equity or in law, exists for the challenged rehabilitative award. It there-fore must be deleted from the judgment.FN4

FN4. We obviously disagree with our dissenting colleague regarding the clarity and consistency (with the judgment)of the trial court’s special findings of fact and conclusions of law in support of the challenged rehabilitative award.There is no need to remand this case to the trial court for correction of these matters since the award itself iswithout support in either equity or law.

DISPOSITION

The judgment under appeal is modified by deleting therefrom the portion thereof under appeal, namely, therehabilitative award of $104,000 to plaintiff, Michelle Marvin. As modified it is affirmed. Costs on appeal areawarded to defendant, Lee Marvin.

POTTER, J., concurs.

KLEIN, Presiding Justice, dissenting.

I dissent.

This case was tried by the court sitting without a jury over a three-month period, during which time presumablyextensive evidence was taken. The trial court was able to evaluate the parties and witnesses as they appearedand gave testimony. However, since the record on this appeal consists only of the judgment roll rather than areporter’s transcript, we do not know the extent and nature of the evidence presented, or whether the issues asframed by the pleadings were expanded during the trial.

We do know that at the conclusion of the trial, the trial court awarded Michelle $104,000 pursuant to findingnumber 26 that: “Plaintiff is in need of funds to be used in the course of rehabilitation, so that she may re-educateherself and learn new employable skills ....,” and finding number 27 that: “The sum of $104,000.00 is necessaryprimarily for rehabilitation and also living expenses and debts to be paid during such rehabilitation.”

In her first amended complaint, Michelle pled as follows:

“That in order that Plaintiff would be able to devote her full time to Defendant Marvin as a companion,homemaker, housekeeper and cook, it was further agreed that Plaintiff would give up her lucrative career as anentertainer/singer.

“That in return, Defendant Marvin would provide for all of Plaintiff’s financial support and needs for the rest ofher life.”

Michelle prayed for “such other relief as this Court deems just and proper.”

We are also made aware of the fact that Marvin was paying Michelle monies on a monthly basis after theirseparation pursuant to some kind of an “arrangement.”

The trial court in its memorandum opinion recognizes that Marvin v. Marvin (1976) 18 Cal.3d 660, 134Cal.Rptr. 815, 557 P.2d 106, “... urges the trial court to employ whatever equitable remedy may be proper underthe circumstances.”

Marvin v. Marvin, supra, at page 685, footnote 26, 134 Cal.Rptr. 815, 557 P.2d 106, specifically states: “We do notpass upon the question whether, in the absence of an express or implied contractual obligation, a party to anonmarital relationship is entitled to support payments from the other party after the relationship terminates.”

In finding number 3, the trial court herein concludes: “The parties did not enter into any agreement to the followingeffect: That Plaintiff would give up any career which she might have had, whether as an entertainer/singer, or in anyother calling, in order to enable Plaintiff to devote her full time to Defendant as a companion, homemaker,



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housekeeper and cook of Defendant,” the contents of which finding was echoed in finding numbers 6 and7. In finding number 18(c), the trial court found that the plaintiff did not in fact give up her career at the defendant’srequest in order to devote her full time and attention to defendant’s personal needs.

In view of all the evidence that the trial court had before it, including the plaintiff’s sex, age, earning ability andcareer status, the length of the relationship, and other circumstances of the factual setting, Marvin v. Marvin,supra, seems to say that the trial court was authorized by way of remedy to provide support payments from theother party after the relationship terminated, provided it also found some equitable right to such a remedy.Apparently, this is what the trial court herein attempted to do in granting a support-type award for rehabilitationfor a two-year period, which seemed to reinstate to some extent the prior “arrangement” the parties had.

However, it is the trial court’s responsibility to provide findings of fact and conclusions of law which areconsistent with the judgment in order that we may conduct proper appellate review. (Spaulding v. Cameron(1952) 38 Cal.2d 265, 270, 239 P.2d 625; Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (Fuchs)(1979) 91 Cal.App.3d 501, 506, fn. 5, 154 Cal.Rptr. 765; Machado v. Machado (1914) 26 Cal.App. 16, 18, 145 P. 738.)

Indeed, “ ‘it is essential that (the trial court’s findings of fact and conclusions of law) be sufficient in form andsubstance so that by reading them and referring to the record the parties can tell and this court can tell withreasonable certainty not only the theory upon which the (trial court) has arrived at its ultimate finding andconclusion but that the (trial court) has in truth found those facts which as a matter of law are essential to sustainits award.’ (Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d (102,) 124 (251 P.2d 955).” (Kaiser FoundationHospitals v. Workers’ Comp. Appeals Bd. (Fuchs), supra, 91 Cal.App.3d at p. 506, fn. 5, 154 Cal.Rptr. 765.)

As “it is impossible to reconcile this judgment with the findings ..., it is clearly the duty of this court to reversethis judgment and remand the case to the trial court for ... correction ... of the (inconsistencies) in its findings(and conclusions) or its judgment or both.” (Machado v. Machado, supra, 26 Cal.App. at p. 18, 145 P. 738; 6Witkin, Cal.Procedure (2d ed. 1971) Appeal, s 541, pp. 4482-4483.)

I would reverse the judgment and remand for further proceedings consistent with this dissent.

431 Pa. 144, 244 A.2d 672

Supreme Court of Pennsylvania.In re ESTATE of LeRoy A. HILLEGASS, Deceased.

Appeal of Esther V. HILLEGASS.Aug. 6, 1968.

Appeal by widow from decree of the Orphans’ Court of Bucks County at No. 38479 on 2nd day of June, 1967,Edwin H. Satterthwaite, President Judge, which granted a petition to strike off her election to take against herhusband’s will. The Supreme Court, No. 56, January Term, 1968, Bell, C.J., held that in view of antenuptial agree-ment under which wife received $10,000 and relinquished her inchoate intestate and other rights or interestseither as wife or widow in and to any property owned by husband, wife was not entitled to elect to take againsthusband’s will, absent clear and convincing evidence by wife of material misrepresentations or nondisclosures.Affirmed.

C. William Freed, Jr., Quakertown, for appellant.Harry L. Lees, Jr., Quakertown, for appellees, Good Shepherd Home, and others.H. Ober Hess, Philadelphia, for appellee, David N. Hillegass.Edward J. Hardiman, Pearlstine, Salkin & Hardiman, Lansdale, Matthew M. Strickler, Philadelphia, for appellees.Ballard, Spahr, Andrews & Ingersoll, Philadelphia, of counsel.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O’BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

BELL, Chief Justice.This is an appeal by Esther V. Hillegass, decedent’s widow, from the Decree of the Orphans’ Court whichgranted a petition to strike off Esther’s election to take against her husband’s will.

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LeRoy A. Hillegass died August 12, 1965, at the age of 76, leaving an estate inventoried at $265,876. He was sur-vived by his widow Esther V. Hillegass, who was 60 years old and whom he had married five months before hisdeath. David Hillegass, decedent’s son by a former marriage, and Bradford LeRoy Hillegass, a grandson, andAlda M. Holtzman, a sister, also survived Hillegass.

LeRoy A. Hillegass and Esther Cassel, a widow, were married on April 2, 1965. Hillegass left a will dated March 19, 1964, and a codicil dated April 15, 1965. In his will, which was executed over a year before his mar-riage to Esther, he bequeathed a legacy to his son and to his sister conditioned upon their surviving him, thenmade a number of small charitable bequests, then created a trust of $40,000 for the benefit of his grandson, andthen gave his residuary estate in trust to pay the net income to his son for life with the remainder to certain char-ities. Hillegass, On April 15, 1965, thirteen days after his marriage to Esther, executed a codicil giving Esther$15,000 and his residence in Bucks County, together with all of the tangible personal property contained therein,if she survived him. This property and the furniture were appraised at approximately $15,000, so that the codi-cil gave Esther approximately $30,000.

LeRoy A. Hillegass and Esther V. Cassel, his intended wife, entered into an Antenuptial Agreement, under seal,which raises the most important question in this case. It recites:

‘Whereas, it is the purpose of this agreement to give each of the parties hereto the free and absolute control anddisposal of his or her separate property or estate; and

‘Whereas it is the intention of the intended wife to waive, relinquish and bar all her inchoate intestate and otherrights or interests, either as wife or widow of the First Party, in and to any property now owned or hereafteracquired by the First Party, Including her right of election to take against the Will of the First Party; and

Italics throughout, ours, unless otherwise noted.

‘Whereas, the First Party, being the intended husband, is seized in fee simple of certain real property located inQuakertown Borough, Bucks County, Pennsylvania, as well as certain personal property, The value of which hasbeen fully disclosed to the intended wife or Second Party; and

‘Now Therefore, in consideration of the said marriage and the covenants of the Second Party, the First Partyagrees to pay the Second Party the sum of Ten Thousand Dollars ($10,000.00) immediately after April 1, 1965;and in consideration of the said marriage and the covenants of the First Party, the Second Party agrees to paythe First Party the sum of One Dollar ($1.00) immediately after April 1, 1965, it being the intention of the partiesthat this Agreement shall be binding upon themselves, their heirs, executors and administrators.

‘The Second Party covenants and agrees that the Said payment shall be in lieu of any and all of her rights in andto the real and personal property of the First Party, now owned or hereafter acquired, including all and anyinchoate intestate rights, and rights as heir of any kind. She hereby releases unto the First Party, his heirs,personal representatives and assigns forever all of her interest, rights and claims in and to the said property ofevery nature and kind.

‘This Agreement is executed With the full realization and understanding that the separate estates of the partiesare not equal in amount,

‘Nothing herein contained shall prevent either of the parties hereto from voluntarily making gifts of anynature and type whatsoever to each other, or one to the other, either during their respective lifetimes or bytheir respective last Wills and Testaments.

‘This writing contains the entire agreement between the parties and it cannot be altered, supplemented oramended by parol.’

LeRoy A. Hillegass released all his rights in and to the property of his intended wife in provisions identical withthose provisions for the wife hereinabove quoted.

It is difficult to conceive of a clearer or fuller or more complete release by an intended wife of all her presentand future rights and interests in her intended husband’s estate.

In compliance with the Antenuptial Agreement, Hillegass paid Esther the sum of $10,000 on April 15, 1965, thirteendays after they were married. Moreover, although not controlling or relevant to the issue of reasonableness orof full and fair disclosure, he gave Esther, we repeat, codicillary gifts which totaled approximately $30,000.



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In spite of all the aforesaid covenants, admissions, waivers, releases, facts and codicillary gifts, Esther filed anelection to take against her husband’s will. The executor of the will of LeRoy A. Hillegass, joined in by severallegatees, filed a petition to set aside Esther’s election, and the lower Court, we repeat, granted the petition andstruck off Esther’s election to take against her husband’s will. This Decree we affirm.

Appellant bases her contentions and her appeal upon the allegation that LeRoy did not live like a man who had$250,000 and therefore (1) in spite of the recitals of disclosure she did not know until after LeRoy’s death theexact value of his estate, and the burden was upon Hillegass’s Estate to prove a full and fair disclosure, and(2) even though the Agreement provided that ‘both parties, for themselves, their heirs, and personal representativesHereby irrevocably waive any future assertion or defense of adequacy of consideration’, the property given toher by her prospective husband in the Antenuptial Agreement was inadequate under the law.

In the field of Antenuptial Agreements, the pertinent law has been differently and varyingly expressed in anumber of cases,with the result that in several respects the law is not as clear, definite and certain as it shouldbe. We shall therefore eliminate the confusion and conflicts resulting from different expressions of the applicablestandards and principles by stating clearly and more definitely the applicable standards and principles in this field.

All of which we have reviewed and carefully considered.

We have carefully examined and reviewed the facts and the law stated in each and all of the prior cases, andany statement of law or of the appropriate test standards or principles in any of them which is contrary to ormodifies or changes the hereinafter stated standards or tests or principles are hereby disapproved and nullified.

Parties to an Antenuptial Agreement providing for the disposition of their respective estates do not deal at arm’slength, but stand in a relation of mutual confidence and trust that calls for the highest degree of good faith anda reasonable provision for the surviving spouse, Or in the absence of such a provision a full and fair disclosureof all pertinent facts and circumstances. Gelb’s Estate, 425 Pa. 117, 123, 228 A.2d 367; Kaufmann’s Estate, 404 Pa. 131,136, 171 A.2d 48; McClellan’s Estate, 365 Pa. 401, 407, 75 A.2d 595; Whitmer’s Estate, 224 Pa. 413, 73 A. 551.

However, it is too often forgotten that one of the two principle purposes of an Antenuptial Agreement is tochange the provisions which the statutory law of Pennsylvania makes for a surviving spouse. Emery’s Estate,362 Pa. 142, 147, 66 A.2d 262.

(1) An Antenuptial Agreement is presumptively valid and binding upon the parties thereto.

(2) The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the inva-lidity of the Agreement by clear and convincing evidence that the deceased spouse at the time of theAgreement made Neither (a) A reasonable provision for the intended spouse, nor (b) A full and fair disclo-sure of his (or her) worth. Gelb’s Estate, 425 Pa. page 123, 228 A.2d 367, supra; Kaufmann’s Estate, 404 Pa.page 136, 171 A.2d 48, supra; McClellan’s Estate, 365 Pa. page 407, 75 A.2d 595, supra; Emery’s Estate, 362 Pa. pages 142, 146, 66 A.2d 262, supra; Snyder’s Estate, 375 Pa. 185, 188, 100 A.2d 67.

(3) In evaluating the reasonableness of the provision for the survivor, such reasonableness must be deter-mined As of the time of the Agreement and not by hindsight. Gelb’s Estate, 425 Pa. page 123, 228 A.2d 367,supra; Kaufmann’s Estate, 404 Pa. page 137, 171 A.2d 48, supra. Reasonableness will depend upon the totalityof all the facts and circumstances At the time of the Agreement, including (a) the financial worth of the intendedhusband; (b) the financial status of the intended wife; (c) the age of the parties; (d) the number of children eachhas; (e) the intelligence of the parties; (f) whether the survivor aided in the accumulation of the wealth of thedeceased spouse; and (g) the standard of living which the survivor had before marriage and could reasonablyexpect to have during marriage.

(4) Full and fair disclosure does not require the disclosure of the Exact amount of his or her property: Kaufmann’sEstate, 404 Pa., supra, page 136, 171 A.2d 48; Emery’s Estate, 362 Pa. page 146, 66 A.2d 262, supra; Holwig’s Estate,348 Pa. 71, 74, 33 A.2d 915; McCready’s Estate, 316 Pa. 246, 255, 175 A. 554.

(5) Even where there is a valid Antenuptial Agreement, this does not prohibit subsequent inter vivos gifts andtestamentary bequests to a surviving spouse.

Appellant relies upon Gelb’s Estate, 425 Pa., 228 A.2d, supra, but that case is clearly distinguishable on its facts.In that case, Edward H. Gelb, the decedent, and his widow, each of whom had had adult children by prior mar-riages, entered into an Antenuptial Agreement under which Mrs. Gelb received $15,000 in cash, and each

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renounced his and her interest in the estate of the other. The parties lived harmoniously until the husband’s deaththree years after marriage. Mrs. Gelb then filed an election to take against her husband’s will; his executors fileda petition to vacate this election. The lower Court decided in favor of the widow and permitted her to take againsther husband’s will because the auditing Judge, who saw and heard the witnesses, Found that the evidence “con-vincingly establishes’ that: ‘(1) The decedent materially misrepresented to (his intended wife) The value of hisestate at the time he induced her to execute the Antenuptial Agreement; (2) (the intended wife) executed theAntenuptial Agreement in reliance upon the representations which Gelb made to her.” This Court agreed withthese findings and, based thereon, affirmed the decree.

The lower Court based its decision of misrepresentations principally upon the testimony of Harry B. Berk,Esquire, who was the scrivener of the Antenuptial Agreement. That Court correctly held that Berk’s testimonywas admissible and that Mrs. Gelb’s testimony was inadmissible initially (Accord: Snyder’s Estate, 375 Pa., supra,page 189, 100 A.2d 67; Inskipt’s Estate, 324 Pa. 406, 410, 188 A. 127; Holwig’s Estate, 348 Pa., supra, page 71,33 A.2d 915), but became admissible ‘when the party representing the decedent calls a witness who testifiesadversely to the interests of the surviving party about a transaction which occurred in the presence of thesurvivor and the witness. Commonwealth Trust Co. v. Szabo, 391 Pa. 272, 283-284, 138 A.2d 85, 90; Bowman’sEstate, 301 Pa. 337, 342-343, 152 A. 38, 40.’ This Court in Gelb’s Estate further pertinently said (425 Pa. at page 123,228 A.2d at page 370): ‘When the person attacking the agreement has shown that it was made on the basis ofmaterial misrepresentations, it will be presumed that the contract was entered in reliance upon these misrep-resentations and the burden to prove otherwise is cast upon the party seeking to uphold the agreement.McClellan’s Estate, 365 Pa. 401, 75 A.2d 595 (1950).’

We shall now consider the facts in the instant case in the light of the aforesaid principles.

The only relevant testimony offered by appellant (wife) was that of a former neighbor and of a former boarder,who merely testified to the deceased husband’s modest way of living, including his modest dress, modest home,and modest automobile. Of course, this was insufficient to prove, as claimant must, nondisclosure of assets incontradiction of the statement of full disclosure in the Antenuptial Agreement.

In the instant case, prior to Esther’s marraige to Hillegass, she had been married to a Mr. Cassel, who hadbeen employed as a railroad dispatcher. Cassel died in 1951 and their son was thereafter admitted to GirardCollege. After Cassel’s death, appellant continued in her employment at John Wanamaker’s, where sheearned approximately $44 a week, and occasionally took in boarders at her home for $8 per week.

Whose first name does not appear in the record.

In the present case, there was no clear and convincing evidence by the wife of material misrepresentations ornondisclosure, and consequently we need not consider whether the provision for the intended wife was or wasnot reasonable.

Decree affirmed, appellant to pay the costs.

COHEN, J., concurs in the result.

68 Md.App. 137, 510 A.2d 608, 55 USLW 2151

Court of Special Appeals of Maryland.Dale R. MARTIN et al.

v.Morris W. FARBER.

No. 1577, Sept. Term, 1985.July 3, 1986.

Appeal was taken from order of the Circuit Court, Baltimore County, Edward A. DeWaters, Jr., J., whichimposed constructive trust on wife’s estate for benefit of husband during his life and found antenuptialagreement to be unconscionable. The Court of Special Appeals, Gilbert, C.J., held that: (1) validity ofantenuptial agreement has to be determined as of the time it was entered into; (2) antenuptial agreement



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in which husband relinquished all rights in his wife’s estate was not unconscionable; but (3) constructivetrust would be imposed on wife’s estate to the extent that husband’s funds acquired during the marriagewere used to acquire assets which were not a part of or attributable to the assets in the wife’s estate priorto the marriage.Affirmed in part and reversed in part and remanded.

Frances Gambo, Lutherville, for appellants.Eugene A. Alexander, III, Baltimore (Thomas E. Rosser and Clarke Murphy, Jr., on brief), Towson, for appellee.Before GILBERT, C.J., and ROSALYN B. BELL and WENNER, JJ.

GILBERT, Chief Judge.We are asked to determine 1) whether an antenuptial agreement entered into by Morris W. Farber and NettieSue Farber in 1939 is still valid and enforceable; and 2) whether the imposition of a constructive trust on theestate of Nettie Sue Farber was proper.

Three days prior to their marriage on June 22, 1939, Nettie Sue Farber, then Nettie Sue Goldberg, and Morris W.Farber entered into an antenuptial agreement. The agreement provided, in essence, that Mrs. Farber would retainsole control of the property she acquired either prior to or during the marriage. Mr. Farber relinquished all rightsin the property and estate of Mrs. Farber.

At the time of the execution of the agreement, Mrs. Farber was 39 years old, a widow, and the mother of twoboys. Her first husband, Dr. Chester Goldberg, died in 1936. Mrs. Farber inherited property from him whichincluded real estate located in Baltimore City. She also received from insurance proceeds more than $20,000.

Mr. Farber, although steadily employed as an electrician, had no accumulated wealth at the time of his marriageto Mrs. Farber. He did, however, continue to work until his retirement in 1967. During his forty-four year mar-riage to Mrs. Farber, Mr. Farber turned his paychecks over to his wife. Mrs. Farber, meanwhile, remained at homeand managed the couple’s household and financial affairs.

When Mrs. Farber died intestate in August, 1983, she had accumulated in her own name assets valued at approx-imately $275,000. The Orphan’s Court for Baltimore County appointed Mr. Farber as personal representative ofhis deceased wife’s estate. Mrs. Farber’s grandchildren FN1 filed a petition in the Circuit Court for BaltimoreCounty to remove Mr. Farber from that position. They asserted that he had signed a valid antenuptial agreementin which he renounced any claim to Mrs. Farber’s estate. In response, Mr. Farber filed a petition for declaratoryrelief alleging that the antenuptial agreement was invalid, and that under Maryland’s intestacy laws he was enti-tled to his share of the estate.

FN1. Although Mrs. Farber was survived by three grandchildren, the youngest of those grandchildren, Harold M.Jones, was adopted outside of the family. Upon being told that he was no longer entitled to share in his grand-mother’s estate, Mr. Jones withdrew from the suit.

Following a trial in the Circuit Court for Baltimore County, the judge concluded that while “[i]t is ··· true thatmany, many years ago Morris released any claim that he might have to Nettie’s property or estate, ··· aftersome forty-four years of a seemingly happy marriage, in which Morris turned everything he earned over toNettie without question, and also upon her assurances that she would take care of Morris, it would not onlybe unjust, but unconscionable for the court to enforce ··· [the agreement].” The trial judge determined thata constructive trust should be imposed upon Mrs. Farber’s estate for the benefit of Mr. Farber during his life;the remainder to be distributed equally to Mrs. Farber’s heirs. Dissatisfied with the decision of the trial court,both sides appealed.

The grandchildren claim that the antenuptial agreement is “valid and enforceable” and that Mr. Farber isprecluded from obtaining any interest in Mrs. Farber’s estate. Mr. Farber contends, however, that the trialjudge’s decision not to enforce the agreement was “a correct one.” He, nevertheless, maintains that since“the agreement is not to be *141 enforced, ··· the proper action of the lower court should have been to passan order that the intestacy law would determine the distribution of assets of the estate.” Proceeding fromthat premise, Mr. Farber further asserts that he is entitled to “the first $15,000 plus 1/2 of the residue” of hiswife’s estate. Md.Est. & Trusts Code Ann. § 3-102.

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The Antenuptial Agreement

“The validity, propriety, and, indeed, favor in the eyes of the law of antenuptial agreements settling or barring prop-erty rights of the parties is recognized.” Hartz v.Hartz, 248 Md. 47, 55, 234 A.2d 865, 870 (1967). Nevertheless, becausethe parties to an antenuptial agreement stand in a confidential relationship, the courts must guard against agreementswhich are unfair and inequitable. See Frey v.Frey, 298 Md. 552, 558, 471 A.2d 705, 711 (1984).

In determining the validity of an antenuptial agreement, a court must consider: 1) was there a fair and reason-able provision for the spouse’s relinquishing his or her rights; or 2) in the absence of such provision, was there“[f]rank, full and truthful disclosure of what is being relinquished (or in lieu thereof actual knowledge otherwiseavailable or obtained)····” Hartz, 248 Md. at 57, 234 A.2d at 871. Equally important is the question of whetherthe agreement was entered into freely and voluntarily. DelVecchio v.DelVecchio, 143 So.2d 17, 20 (Fla.1962).

The courts, in weighing the fairness and reasonableness of the provision for the spouse waiving his or her rights,generally take into account,

“the situation of the parties, their ages, their respective holdings and income, their respective family obligationsor ties, the circumstances leading to the execution of the agreement, the actions of husband and wife after themarriage as they tended to show whether the agreement was voluntarily and understandingly made, the needsof him or her who made relinquishment, including whether or not that one, after the death of the other, can livesubstantially as comfortably as before the marriage.”

Hartz, 248 Md. at 58-59, 234 A.2d at 872.

The element of “reasonableness must be weighed as of the time of the execution of the agreement.” Lindey,Separation Agreements and Antenuptial Contracts, § 90-53 (1985).

Some courts, for public policy reasons, have imposed another test-one of conscionability-in order to determinethe validity of antenuptial agreements, at least with regard to provisions relating to maintenance and sustenanceon dissolution of marriage. Under that particular test, “such provisions may lose their legal vitality by reason ofchanging circumstances which render the antenuptial provisions for maintenance to be unconscionable at thetime of the marriage dissolution.” Newman v.Newman, 653 P.2d 728, 734 (Colo.Sup.Ct.1982). The Colorado courtsaid that,

“even though an antenuptial agreement is entered into in good faith, with full disclosure and without any ele-ment of fraud or overreaching, the maintenance provisions thereof may become voidable for unconscionabilityoccasioned by circumstances existing at the time of the marriage dissolution.”

See also Hill v. Hill, 356 N.W.2d 49 (Minn.App.1984); Gross v. Gross, 11 Ohio St.3d 99, 464 N.E.2d 500 (1984);Marschall v. Marschall, 195 N.J.Super. 16, 477 A.2d 833 (1984); Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662(1982); Osborne v.Osborne, 384 Mass. 591, 428 N.E.2d 810 (1981).

Other tribunals, citing the underlying State interest in the welfare of the divorced spouse, have simply invali-dated maintenance or sustenance provisions in antenuptial agreements or have held them to be altogether void.The Oregon Supreme Court in Unander v.Unander, 265 Or. 102, 506 P.2d 719 (1973), ruled that an antenuptialagreement will be enforced unless the spouse is deprived of support that she cannot otherwise secure. An Illinoisappellate court voided an antenuptial agreement waiving alimony because of an attempted avoidance by a hus-band of his legal duty to support his spouse. Eule v. Eule, 24 Ill.App.3d 83, 320 N.E.2d 506 (1974). In Connollyv. Connolly, 270 N.W.2d 44 (S.D.1978), the Supreme Court of South Dakota declared that the public interestrequires post-marriage dissolution support be assessed as of date of dissolution of the marriage and that anyantenuptial agreement to the contrary was void. Iowa, on the ground of public policy, struck down an antenup-tial agreement which prohibited alimony. In re Marriage of Gudenkauf, 204 N.W.2d 586 (Iowa 1973).

Notwithstanding the apparent willingness of some courts to subject maintenance and sustenance provisions toconscionability review, there appears to be little support for extending that review to provisions respecting thedevolution of property at the time of death of one of the spouses. See Gross, 11 Ohio St.3d 99, 464 N.E.2d 500;Newman, 653 P.2d 728.

The judge in the matter sub judice concluded that although the agreement executed by the Farbers was “viable”it would not be enforced because it would be unconscionable to do so. Despite the court’s specific ruling, theappellants continue to argue that the agreement meets all of the criteria set forth in Hartz v. Hartz, 248 Md. 47,



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234 A.2d 865 (1967). The viability of the antenuptial agreement is not, however, contested on appeal. The issuebefore this Court is whether the hearing judge could set aside an otherwise valid antenuptial agreement on theground that its enforcement would be unconscionable.

The doctrine of “unconscionability” is defined in § 208 of the Restatement (Second) of Contracts as follows:

“If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforcethe contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit theapplication of any unconscionable term as to avoid any unconscionable result.” (Emphasis supplied.)

That definition was recently cited with approval by the Court of Appeals in Williams v.Williams, 306 Md. 332,508 A.2d 985, 988 (1986) (No. 85, slip op. at 7, September Term, 1985, filed May 22, 1986). Historically, an agree-ment has been held to be unconscionable if it is “such as no man in his senses and not under delusion wouldmake on the one hand, and as no honest and fair man would accept on the other.” Hume v. United States,132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393 (1889), quoting Earl of Chesterfield v. Janssen, 2 Ves.Sen. 125, 155, 28 Engl.Rep. 82, 100 (Ch. 1750). Even though the doctrine of unconscionability permits the courts to exerciseconsiderable leeway in avoiding inequitable results, that permissiveness is not without bounds.

“[W]hen determining whether an entire contract or any of its parts is so unconscionable as to justify its judicialrescission or cancellation, the matter will not be judged by hindsight but by the situation as it existed at the timethe bargain was struck.”

Gladding v. Langrall, Muir & Noppinger, 285 Md. 210, 213, 401 A.2d 662, 664 (1979).

Phrased differently, the fairness of an agreement is to be determined as of the time it was made, not on the basisof conditions occurring subsequently. Gladding, 285 Md. at 214, 401 A.2d at 665. Courts are not possessed ofunbridled discretion to undo that which the parties fairly and voluntarily assumed, even if the agreement mightbe deemed imprudent.

With that precept firmly in mind, we hold that the trial judge erred in ruling that the agreement was uncon-scionable. It was not. Nothing in the Farbers’ antenuptial agreement or in the circumstances surrounding itsexecution renders it unconscionable or otherwise legally objectionable. The trial judge palpably relied oncircumstances arising after the execution of the agreement. He was particularly concerned by the fact thatMr. Farber turned everything he earned over to Mrs. Farber, and that she repeatedly assured her husbandthat she would take care of *145 him. No matter how disturbing those facts may be, they do not afford anadequate base for the court’s ruling. The court, as we have said, was bound to decide the validity of theagreement and the process by which it was reached as of the time the agreement was made, and not byany post-agreement occurrences.

Constructive Trust

The decision with regard to the validity and enforceability of the agreement does not, however, end our inquiry.Yet to be determined is whether, under the circumstances of the instant case, a constructive trust was properlyimposed.

A constructive trust has been defined as:

“A ··· remedy employed by a court ··· to convert the holder of the legal title to property into a trustee for onewho in good conscience should reap the benefits of the possession of said property. The remedy is applied byoperation of law where property has been acquired by fraud, misrepresentation, or other improper method, orwhere the circumstances render it inequitable for the party holding the title to retain it.”

Wimmer v.Wimmer, 287 Md. 663, 668, 414 A.2d 1254, 1258 (1980); see also Siemiesz v.Amend, 237 Md. 438,206 A.2d 723 (1964).

Ordinarily, before a constructive trust can be impressed by a court, there must be “clear and convincing evidenceof wrongdoing” coupled with “circumstances which would render it inequitable for the holder of legal title toretain the beneficial interest.” Wimmer, 287 Md. at 668, 414 A.2d at 1258; Peninsula Methodist Homes andHospitals, Inc. v. Cropper, 256 Md. 728, 261 A.2d 787 (1970). When a confidential relationship exists, differentrules are applicable. Wimmer, 287 Md. at 668, 414 A.2d at 1258; Fant v.Duffy, 232 Md. 481, 194 A.2d 293 (1963).

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In order to establish the existence of a confidential relationship, it must be shown that “one party is under thedomination of another, or ··· [that] the circumstances [are *146 such that] ··· [one] party is justified in assumingthat the other will not act in a manner inconsistent with his or her welfare.” Bass v. Smith, 189 Md. 461, 469,56 A.2d 800, 804 (1948). Once it is demonstrated that a confidential relationship exists, “a presumption arisesthat confidence was placed in the dominant party [by the subservient party] and that the transaction complainedof resulted from fraud or undue influence and superiority or abuse of the confidential relationship by which the dom-inant party profited.” Wimmer, 287 Md. at 669, 414 A.2d at 1258; Wenger v.Rosinsky, 232 Md. 43, 192 A.2d 82 (1963).The presumption shifts the burden to the dominant party to show, by clear and convincing evidence, that thetransactions entered into were fair and reasonable. Wimmer, 287 Md. at 669, 414 A.2d at 1258.

The record before us reveals that throughout the Farbers’ forty-four year marriage, Mrs. Farber stayed at homeattending to the domestic chores as well as the couple’s financial matters. Mr. Farber continued to work outside thehome. He regularly earned wages which he diligently turned over to his wife. Those facts, when viewed in lightof Mrs. Farber’s repeated assurances to her husband that she would take care of him, lead us to the conclusion thata confidential relationship existed between the Farbers and that Mrs. Farber was the dominant of the two.

Based on the evidence presented to support Mr. Farber’s assertion that his wife abused that confidential relation-ship by using his earnings to acquire assets which she titled or placed solely in her own name, we agree thatthe imposition of a constructive trust was proper. We think, however, that the trust should only be imposed tothe extent that Mr. Farber’s funds were used to acquire assets which were not a part of or attributable to theassets in Mrs. Farber’s estate prior to the marriage of the couple. In limiting the scope of the constructive trustimposed in the case sub judice, we are mindful of a primary purpose of that form of *147 trust-to prevent unjustenrichment. Therefore, the constructive trust should be limited to the extent Mr. Farber is able to trace his fundsinto his late wife’s estate. The imposition by the trial court of a constructive trust over the entire estate, withoutregard to the amounts actually contributed by Mr. Farber, was error.

We do not consider the appellants’ contention that Harold Martin Jones, having been adopted outside of thefamily of Mrs. Farber, is no longer entitled to share in his grandmother’s estate inasmuch as that issue was notdecided by the lower court. Md.Rule 1085.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED FOR FURTHER PROCEEDINGS**613 IN ACCORDANCE WITH THIS OPINION. COSTS TO BE DIVIDED BETWEEN THE PARTIES.

Chapter 9

Hazen Paper Co. v Biggins, 508 U.S. 948; 113 S. Ct. 2437; 124 L. Ed. 2d 656, (1993)

St. Mary’s Honor Center v. Hicks, 90 F.3d 285 (1993)

Smith v. City of Jackson, Miss., 544 U.S. 228, 125 S.Ct. 1536 (2005)

90 F.3d 285, 71 Fair Empl.Prac.Cas. (BNA) 458, 68 Empl. Prac. Dec. P 44,183

United States Court of Appeals,Eighth Circuit.

Melvin HICKS, Appellant,v.

ST. MARY’S HONOR CENTER; Department of Corrections and HumanResources, Division of Adult Institutions; Steve Long, Appellees.

No. 95-3549.Submitted April 11, 1996.

Decided July 22, 1996.

Correctional officer formerly employed at halfway house brought Title VII action against halfway house and twoofficials, alleging that his demotion and discharge were due to his race. The United States District Court for theEastern District of Missouri, Stephen Nathaniel Limbaugh, J., 756 F.Supp. 1244, entered judgment for defendantsand correctional officer appealed. The Court of Appeals, McMillian, Circuit Judge, 970 F.2d 487, reversed and



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remanded. After granting certiorari, the Supreme Court, Justice Scalia, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407,reversed the Court of Appeals, and remanded. Upon remand, the Court of Appeals, 2 F.3d 265, held that remandwas required for District Court to apply Supreme Court’s newly clarified analytical scheme. Upon remand, theDistrict Court entered judgment in favor of defendants. Officer appealed. The Court of Appeals held that it hadno authority to impose liability upon employer for alleged discriminatory employment practices under Title VIIunless appropriate fact finder determined, according to proper procedures, that employer had unlawfully discriminated.Affirmed.

Charles R. Oldham, St. Louis, MO, argued, for appellant.Gary L. Gardner, Asst. Atty. Gen., Jefferson City, MO, argued, for appellees.Before McMILLIAN, JOHN R. GIBSON and FAGG, Circuit Judges.

McMILLIAN, Circuit Judge.Melvin Hicks appeals from a final judgment entered in the United States District Court FN1 for the Eastern Districtof Missouri in favor of his former employer, St. Mary’s Honor Center (St. Mary’s), and the superintendent*286 ofSt. Mary’s, Steve Long (together defendants), on his claims arising under Title VII and the equal protection clause.Hicks v. St. Mary’s Honor Ctr., No. 88-109C (5) (E.D.Mo. Aug. 31, 1995) ( Hicks V ). The judgment presently onappeal followed a remand from this court, id., 2 F.3d 265, 267 (8th Cir.1993) ( Hicks IV ) (amended by substitutionon Feb. 15, 1994),FN2 which, in turn, followed the Supreme Court’s decision in St. Mary’s Honor Ctr. v. Hicks,509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ( Hicks III ), reversing our earlier decision, Hicks v.St.Mary’sHonor Ctr., 970 F.2d 487 (8th Cir.1992) ( Hicks II ), which had reversed the district court’s original judgment infavor of defendants, id., 756 F.Supp. 1244 (E.D.Mo.1991) ( Hicks I ). For reversal, plaintiff now argues that thedistrict court clearly erred in finding that his demotion and discharge were not motivated by racial discriminationor a desire to retaliate against him for filing charges of employment discrimination with the Equal EmploymentOpportunity Commission (EEOC). FN3 Applying the analytical principles set forth by the Supreme Court inHicks III, we now affirm.

FN1. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.

FN2. The unamended version of the panel’s opinion is printed in the bound Volume 2 of the Federal Reporter,3d Series. The final amended version of the panel opinion is available on Westlaw. Hicks v.St.Mary’s Honor Ctr.,2 F.3d 265 (8th Cir.1993) (amended by substitution on Feb. 15, 1994) ( Hicks IV ).

FN3. The district court reaffirmed its findings of fact from its 1991 decision and declared those findings applicableto both the issue of whether defendants’ personal animosity toward plaintiff was racially motivated and plain-tiff’s retaliation claim. Hicks v. St. Mary’s Honor Ctr., slip op. at 288, No. 88-109C (5) (E.D.Mo. Aug. 31, 1995)( Hicks V ). In its 1991 decision, the district court found that defendants’ proffered reasons for demoting and dis-charging plaintiff were pretextual and that he was treated unfairly, but nevertheless found that defendants’ “unfairtreatment” of plaintiff was not motivated by race. Id., 756 F.Supp. 1244, 1252 (E.D.Mo.1991) ( Hicks I ), rev’d andremanded, 970 F.2d 487 (8th Cir.1992) ( Hicks II ), rev’d and remanded, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407(1993) ( Hicks III ).

I.

The facts of this case are stated in detail in the district court’s 1991 decision, Hicks I, 756 F.Supp. at 1246-49,1250-52, and supplemented in Hicks V, slip op. at 288-289. Plaintiff, an African American male, was hired inAugust 1978 as a correctional officer at St. Mary’s, a minimum security correctional facility (also referred to as a“halfway house”) operated by the Missouri Department of Corrections and Human Resources. In February 1980,plaintiff was promoted to shift commander, a supervisory position. In January 1984, St. Mary’s underwent extensivesupervisory changes and, among them, Long became the superintendent of St. Mary’s and John Powell becamethe chief of custody (and plaintiff’s immediate supervisor). Hicks I, 756 F.Supp.at 1246. Prior to these personnelchanges, plaintiff enjoyed a satisfactory employment record and had not been disciplined for any rule violations.Id. at 1249. Immediately afterward, however, he became the subject of repeated, and increasingly severe,disciplinary sanctions. Id. at 1246-48; Hicks III, 509 U.S. at 505, 113 S.Ct. at 2746.

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Plaintiff was suspended for five days for rule violations committed on March 3, 1984, by his subordinates. Hicks I,756 F.Supp. at 1246-47. Powell testified at trial that “it was his policy to discipline only the shift commander forviolations which occurred on the commander’s shift.” Id. at 1250. However, the district court found that “plain-tiff demonstrated such a policy only applied to violations which occurred on plaintiff’s shift.” Id. For example,some of the very same infractions for which plaintiff was suspended occurred under the watch of shift com-mander Sharon Hefele (who is white) and yet she was not disciplined. Id. at 1246 & n. 3, 1250-51.

Later that month, a fight broke out between two inmates during plaintiff’s shift. On March 29, 1984, plaintiff wasgiven a letter of reprimand for allegedly failing to investigate the fight adequately. Id. at 1247. The district courtfound that, in comparison to this and other violations for which plaintiff was disciplined, “much more serious vio-lations, when committed by plaintiff’s co-workers, were either disregarded or treated much more leniently.” Id. at1251. For example, on one occasion, transportation officer Ed Ratliff (who is white) permitted an unescorted inmateaccess to Long’s locked office. Id. at 1247 n. 8, 1248, 1251. The district court described this rule violation as “a strik-ing and obvious breach of security,” noting that “the inmate had access to Long’s private files” and “could haveacquired a weapon to use against a correctional officer or another inmate.” Id. at 1251. In response, however,“Powell not only refused to discipline Ratliff but praised him for ‘diffusing a volatile situation.’ ” Id.

On March 19, 1984, two correctional officers under plaintiff’s supervision used a St. Mary’s vehicle without enter-ing the vehicle use in a log book. Id. at 1247. Following that incident, Powell recommended that plaintiff be dis-ciplined—not for authorizing the use of the vehicle, but rather for failing to ensure that the use was logged. Id.A disciplinary review board comprised of two African Americans and two Caucasians voted on April 6, 1984, insupport of plaintiff’s demotion. Id. Powell was one of the four members of the disciplinary review board whichvoted on his recommendation that plaintiff be demoted; as a member of the disciplinary review board, Powellthen voted to terminate rather than merely demote plaintiff. Id. at 1247 n. 7.

On April 11, 1984, plaintiff filed a complaint with the EEOC. Hicks V, slip op. at 289. The complaint alleged racial dis-crimination in his employment conditions. Joint Appendix, Vol. I, at 9 (Plaintiff’s First Amended Complaint, 10). Atthat point, plaintiff had received the five-day suspension and the letter of reprimand, but had not been notifiedof his demotion.

On April 19, 1984, plaintiff was notified in a meeting with Powell, Long, and the assistant superintendent, VincentBanks, that he was being demoted from shift commander to correctional officer. Hicks I, 756 F.Supp. at 1247.Upon review of plaintiff’s demotion, the district court found that this was an example of how plaintiff was treatedmuch more harshly than co-workers whose rule violations were equally severe or more severe. Id. at 1251. Forexample, acting shift commander Michael Doss (who is white) allowed an inmate to escape during his shift.Id. at 1251, 1248 & n. 12. Doss admitted that his negligence permitted the escape. Id. at 1251. The district courtnoted “[a]lthough the escape of an inmate is clearly much more serious than the failure to log the authorized useof a vehicle, Doss was only given a letter of reprimand for the violation.” Id.

On May 7, 1984, plaintiff filed another complaint with the EEOC. Hicks V, slip op. at 289. He alleged in his secondEEOC complaint that he had been demoted due to racial discrimination and in retaliation for having filed thefirst EEOC complaint. Joint Appendix, Vol. I, at 9-10 (Plaintiff’s First Amended Complaint, 15).

On June 7, 1984, plaintiff was discharged ostensibly for threatening Powell during an argument, which occurredafter plaintiff was informed of his demotion. According to the district court’s findings, plaintiff requested the dayoff upon being told of the demotion. Long granted the request and, as plaintiff attempted to leave, Powellfollowed him and ordered him to open his locker so that Powell could retrieve plaintiff’s shift commander’smanual. Plaintiff refused to comply, and the two exchanged heated words. Plaintiff indicated that he would “stepoutside” with Powell, to which Powell warned that his words could be perceived as a threat. Plaintiff then left.Hicks I, 756 F.Supp. at 1247. Powell claimed that plaintiff had threatened him and sought disciplinary actionagainst plaintiff. On May 9, 1984, a four-member disciplinary board, including at least two African Americans,voted to suspend plaintiff for three days. Id. However, contrary to the disciplinary review board’s decision, Longrecommended to his superiors that plaintiff be terminated. Id. at 1247-48. At trial, Long testified that his recom-mendation was based upon “the severity and accumulation of plaintiff’s violations.” Id. at 1248. With respect toplaintiff’s alleged threats to Powell, the district court found “the evidence suggests that Powell manufactured theconfrontation between plaintiff and himself in order to terminate plaintiff.” Id. at 1251. As to the severity andaccumulation of plaintiff’s violations, upon which Long allegedly relied in recommending plaintiff’s termination,the district court concluded that those reasons were pretextual. Id.



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Plaintiff brought this employment discrimination action in federal district court, asserting Title VII claims againstSt. Mary’s and a § 1983 equal protection claim against Long. The district court held a bench trial at which plain-tiff presented a disparate treatment case. Addressing plaintiff’s racial discrimination claim only, the district courtfound for defendants. In considering the evidence according to the analytical framework established inMcDonnell Douglas Corp.v.Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the district court held that“[p]laintiff proved a prima facie case of race discrimination” and that “defendant has succeeded in setting fortha legitimate, non-discriminatory reason for the adverse employment action.” Hicks I, 756 F.Supp. at 1250. At thattime, defendants had proffered “two legitimate, non-discriminatory reasons for their actions: the severity and theaccumulation of rules violations committed by [plaintiff].” Hicks III, 509 U.S. at 507, 113 S.Ct. at 2747 (citingHicks I, 756 F.Supp. at 1250). Upon consideration of the evidence at trial, the district court found that defen-dants’ proffered reasons were not the real reasons for their adverse treatment of plaintiff because plaintiff wasthe only supervisor disciplined for rule violations committed by subordinates; similar and even more serious vio-lations committed by plaintiff’s co-workers were disregarded or treated more leniently; and Powell had manu-factured the final argument with plaintiff in order to provoke plaintiff into threatening him. Id. at 508, 113 S.Ct.at 2747 (citing Hicks I, 756 F.Supp. at 1250-51). Thus, the district court concluded “[p]laintiff has carried hisburden in proving that the reasons given for his demotion and termination were pretextual.” Hicks I, 756 F.Supp.at 1251. Nevertheless, the district court held that plaintiff had failed to prove that his race motivated defendants’decisions to demote and to discharge him. The district court relied on evidence that: each of the two four-memberdisciplinary review boards which recommended disciplining plaintiff included two African Americans FN4; plain-tiff’s African American subordinates (i.e., non-supervisors), who actually committed the rule violations, were notdisciplined; and the total number of African American employees at St. Mary’s remained relatively constantdespite the numerous personnel changes that occurred.FN5 Hicks III, 509 U.S. at 508 n. 2, 113 S.Ct. at 2748 n. 2(citing Hicks I, 756 F.Supp. at 1244, 1252). The district court stated “although plaintiff has proven the existenceof a crusade to terminate him, he has not proven that the crusade was racially rather than personally motivated.”Hicks I, 756 F.Supp. at 1252. Thus, the district court entered judgment for defendants. Id. at 1253. The districtcourt did not address plaintiff’s additional claim that defendants had demoted and terminated him in retaliationfor filing two charges of unlawful employment practices with the EEOC.

FN4. According to the district court’s findings, the first disciplinary review board, which approved Powell’s rec-ommendation to demote plaintiff, included Powell himself as a member and, as a member of the review board,Powell voted for plaintiff’s termination. Hicks I, 756 F.Supp. at 1247 & n. 7. The second disciplinary reviewboard, which voted to have plaintiff suspended for three days, was disregarded by Long who instead recom-mended plaintiff’s discharge. Id. at 1247-48.

FN5. In the period from December 1983 to December 1984, approximately twelve African American employeeswere terminated. Only one Caucasian employee was terminated. Long hired approximately the same number ofAfrican Americans as were fired. Id. at 1249. Consequently, the total number of African American employeesremained relatively constant, although the number of African American supervisors declined. See infra note 8and accompanying text.

On appeal to this court, we reversed because the district court’s analysis was inconsistent with cases previouslydecided in our circuit. Hicks II, 970 F.2d at 493 (citing cases). We held that once plaintiff had proven all of defen-dants’ proffered reasons for the demotion and discharge to be pretextual, plaintiff was entitled to judgment as amatter of law. Id. at 492. Having reversed the district court’s judgment on the merits of plaintiff’s racial discrim-ination claim, we declined to reach plaintiff’s separate argument that the district court had erred in failing toaddress his retaliation claim. Id. at 493 n. 9.

Defendants petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted defendants’petition to address the legal issue presented by this case, upon which the circuits were fairly evenly divided.See Hicks III, 509 U.S. at 512-13, 113 S.Ct. at 2750-51 (citing cases). The Supreme Court, in a 5-4 decision,reversed our decision. Justice Scalia, writing for the majority, held:

The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompaniedby a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show inten-tional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to inferthe ultimate fact of discrimination,[ ] and the Court of Appeals was correct when it noted that, upon such rejec-tion, “[n]o additional proof of discrimination is required,” 970 F.2d at 493 (emphasis added). But the Court of

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Appeals’ holding that rejection of the defendant’s proffered reasons compels judgment for the plaintiff disregardsthe fundamental principle of Rule 301 that a presumption does not shift the burden of proof, and ignores ourrepeated admonition that the Title VII plaintiff at all times bears the “ultimate burden of persuasion.”

Id. at 511, 113 S.Ct. at 2749 (footnote and citations omitted).

On remand from the Supreme Court, this court remanded the case to the district court in order to provide the par-ties and the district court a full and fair opportunity to apply the Supreme Court’s clarification. Hicks IV, 2 F.3d at 267.Initially, the Hicks IV opinion stated the following.

In particular, the district court may decide to hold an evidentiary hearing in order to permit the parties to pres-ent additional evidence on the now-critical question of personal animosity. For example, Hicks may be able todemonstrate that defendants were not motivated by personal animosity or that defendants’ personal animositywas itself racially motivated.

Id. (as published in bound volume). Six months later, however, this court entered an order denying a petitionfor rehearing by the panel and substituting the following language for the language quoted above.

The issue of retaliatory discharge as a basis for Title VII liability was not reached in the district court’s first opinion.[ Hicks II, 970 F.2d at 493 n. 9]. The district court may decide to hold an evidentiary hearing in order to permitthe parties to present additional evidence.

Hicks v. St. Mary’s Honor Ctr., No. 91-1571 (8th Cir. Feb. 15, 1994) (order denying petition for rehearing by thepanel and substituting a new page 4 for page 4 of the opinion as originally filed). Thereafter, a suggestion forrehearing en banc was denied.

On remand, the district court correctly opined that the language that accompanied the February 15, 1994, ordersuperseded the language in the original Hicks IV opinion. Nevertheless, noting the confusion created by the pagesubstitution, the district court decided to address both (1) the issue of whether defendants’ personal animositytoward plaintiff was motivated by race and (2) plaintiff’s retaliation claim. See Hicks V, slip op. at 286.

The parties agreed, with the district court’s approval, that, rather than hold a rehearing, plaintiff would be permittedto take new depositions of Powell and Long. Id. at 287. The transcripts of Powell’s and Long’s depositions, alongwith other forms of documentary evidence, were then submitted to the district court for its consideration. Id. Uponreview of the evidence related to the personal animosity issue, the district court concluded “[e]xtensive findings offact were initially made by this Court and there is no new reason to change those findings. The Court determinesthat those findings are applicable ··· to the alleged racially motivated personal animosity directed at plaintiff by defen-dants.” Id. at 288. In other words, the district court reaffirmed its earlier finding that defendants’ unfair treatment ofplaintiff was motivated by personal animosity; the district court, as factfinder, further concluded that this personalanimosity was not motivated by race. The district court stated “[t]here is no suspicion of mendacity here, and the ulti-mate fact of intentional discrimination, therefore, should not be inferred.” Id. at 289.

On plaintiff’s separate retaliation claim, the district court noted that its initial findings were applicable to thatclaim as well, id. at 288, and concluded that plaintiff’s discharge was not motivated by a desire to retaliate againstplaintiff for filing a complaint with the EEOC. Id. at 289. In an effort to be more specific, the district courtexplained:

Plaintiff filed his initial complaint with the Equal Employment Opportunity Commission on April 11, 1984 and asecond complaint was filed May 7, 1984. The decision to discharge plaintiff was made May 21, 1984, four daysafter the Department of Corrections received notice of the second complaint on May 17, 1984. The decision-maker was the Director of the Division of Adult Institutions, Donald Wyrick. There is no evidence to indicatethat Wyrick was aware of the filing of the second complaint. In any event, the Court as the trier of fact deter-mines that there was a lack of racial motivation in the decision to demote and discharge the plaintiff as retalia-tion for his filing of complaints with the Equal Employment Opportunity Commission. The same reasons areapplicable as were stated in this Court’s initial decision and finding.

Id. at 289.

The district court entered judgment for defendants on the merits of plaintiffs’ claims, id. at 9, and this appeal followed.



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II.

Plaintiff argues in the present appeal that the district court clearly erred in finding that defendants treated himunfairly because of personal animosity unrelated to his race. Plaintiff argues that the overwhelming evidence ofdisparate treatment between himself, an African American, and similarly situated Caucasians who also held super-visory positions at St. Mary’s, leads inescapably to the conclusion that race was an underlying motivation indefendants’ “crusade to terminate him.” Hicks I, 756 F.Supp. at 1252. Moreover, he emphasizes, the only reasonsgiven by defendants at trial for demoting and discharging him were the severity and accumulation of his allegedrule violations—reasons which were conclusively proven to be pretextual. Id. at 1251. Finally, plaintiff notes that,when Long and Powell were deposed following the remand from this court, each testified that he did not feelany personal animosity toward plaintiff.FN6 In fact, notwithstanding the district court’s finding of pretext, Longcontinued to maintain that the only reason why he recommended plaintiff’s termination was that plaintiff hadcommitted rule violations.

FN6. Long testified in his deposition as follows.

Q. Did you have any personal animosity towards Mr. Hicks?

A. No, sir.

Q. Was there any reason other than his alleged violation of rules that caused you to make a recommendationfor his termination?

A. No, sir.

Joint Appendix, Vol. II at 121-22 (deposition Steve Long).

Powell testified in his deposition as follows.

Q. Okay. Just directing your attention to then Mr. Hicks, did you have any personal problems with him ofany nature?

A. Personal, no.

. . . . .

Q. Okay. Now, what I’m trying to find out, Mr. Powell, the court has made certain findings that you andMr. Long put him on an express track for dismissal. And I’m trying to find out if there was any reasonother than your feeling that he had violated some rules for your actions.

A. No, sir. I just reported the activities.

Q. You just reported on his activities?

A. Yes, sir.

Q. So you had no personal animosity?

A. No, sir. None whatsoever.

Joint Appendix, Vol. II at 146, 147 (deposition of John Powell).

In response, defendants’ counsel now abandons the rule violations explanation (even though Long himselfdoes not) and astutely embraces “personal animosity” as the justification for defendants’ actions. Brief forAppellees at 13, 17-19. Defendants now argue that Powell’s personal animosity toward plaintiff is “the lawfulreason for [plaintiff’s] discharge.” Id. at 19. In addition, even though Powell’s own personal animosity nowpurportedly constitutes the real reason for plaintiff’s demotion and discharge, defendants continue to relyon statistical evidence concerning, for example, the constancy in the overall number of African Americansemployed at St. Mary’s (i.e., the total number of supervisors and non-supervisors) and the fact that the four-member disciplinary review boards which recommended disciplining plaintiff included at least two African

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Americans. Id. at 14, 19-20. FN7 Defendants also highlight the fact that the number of African Americans andCaucasians in supervisory positions would have been equal (3 and 3) but for the decision by an AfricanAmerican male to turn down the chief of custody position (which was later offered to Powell).FN8 Id.

FN7. But see supra notes 4, 5 and infra note 8.

FN8. Consequently, the ratio of African American to Caucasian supervisors changed from 5:1 in 1983 to 2:4 afterJanuary 1984 (but could have been 3:3 in 1984). Brief for Appellees at 12, 14, 20, 29; Joint Appendix, Vol. I, at70. Of the two African Americans retained after January 1984, one was plaintiff. Joint Appendix, Vol. I, at 70.

[1] Upon review for clear error of the district court’s finding that racial discrimination did not motivate plaintiff’s demo-tion and discharge, we affirm in light of the Supreme Court’s mandate in Hicks III. 509 U.S. at 514-15, 113 S.Ct. at 2751(“We have no authority to impose liability upon an employer for alleged discriminatory employment practicesunless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfullydiscriminated···· [N]othing in law would permit us to substitute for the required finding that the employer’s actionwas the product of unlawful discrimination, the much different (and much lesser) finding that the employer’sexplanation of its action was not believable.”)

III.

[2] Plaintiff separately argues that the district court clearly erred in concluding that “the decision to discharge plaintiffwas not motivated by a desire to retaliate against plaintiff for instituting a complaint with the Equal EmploymentOpportunity Commission.” Hicks V, slip op. at 289 (citing Greenwood v.Ross, 778 F.2d 448, 456 (8th Cir.1985) (revers-ing district court’s dismissal of plaintiff’s Title VII retaliatory discharge claim and holding that plaintiff establisheda prima facie case by showing that defendants, knowing that plaintiff had engaged in protected activity, refusedto renew his employment contract)). In response, defendants argue that the lawful nondiscriminatory reasondefendants now rely upon to rebut plaintiff’s racial discrimination claim (i.e., Powell’s personal animosity)equally applies to plaintiff’s retaliation claim and, together with evidence that is “inconsistent” with racial dis-crimination, “compels” a finding for defendants on plaintiff’s retaliation claim. Brief for Appellees at 24-25.

We begin by noting that, in discussing plaintiff’s retaliation claim, the district court stated the following.

Plaintiff filed his initial complaint with the Equal Employment Opportunity Commission on April 11, 1984 and asecond complaint was filed May 7, 1984. The decision to discharge plaintiff was made May 21, 1984, four daysafter the Department of Corrections received notice of the second complaint on May 17, 1984. The decision-maker was the Director of the Division of Adult Institutions, Donald Wyrick. There is no evidence to indicatethat Wyrick was aware of the filing of the second complaint. In any event, the Court as the trier of factdetermines that there was a lack of racial motivation in the decision to demote and discharge the plaintiff asretaliation for his filing of complaints with the Equal Employment Opportunity Commission. The same reasons are applicable as were stated in this Court’s initial decision and finding.

Slip op. at 289 (emphasis added). The sentence underlined above clearly suggests that defendants made a “decisionto demote and discharge the plaintiff as retaliation for his filing of complaints with the [EEOC],” but that these adverseactions were not unlawful because they were not racially motivated. The sentence therefore indicates that the districtcourt assumed plaintiff was required to prove racial motivation in order to prevail on his retaliation claim. Racial moti-vation was not an element of plaintiff’s burden of proof.FN9 See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employ-ment practice for an employer to discriminate against any of his [or her] employees ··· because he [or she] has madea charge ··· under this subchapter.”); Womack v.Munson, 619 F.2d 1292, 1296 (8th Cir.1980) ( Womack ) (setting forthlegal standards applicable to Title VII retaliatory discharge claim), cert.denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d814 (1981); cf.Wentz v.Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir.1989) ( Wentz ) (analogizing Title VIIand ADEA retaliation claims and citing Womack as providing applicable analytical framework) (reversing summaryjudgment granted to defendant on plaintiff’s ADEA retaliatory discharge claim where district court relied on the fail-ure of plaintiff’s age discrimination claim to decide plaintiff’s retaliation claim).

FN9. Likewise, contrary to defendants’ argument on appeal, the statistical evidence relied upon by defendantsas inconsistent with a finding of racial discrimination is not relevant to plaintiff’s retaliation claim. Brief forAppellees at 25 (“Other evidence is inconsistent with intentional, racial discrimination. That evidence of a lawful,nonracial motive for his demotion and discharge equally proves the absence of a retaliatory motive.”)



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In Wentz, the district court had stated the following reasons for holding, on summary judgment, that the plaintiff had failed as a matter of law to establish his prima facie case of unlawful retaliation under the ADEA.

The [c]ourt finds that Wentz did not engage in protected opposition to age discrimination in light of its rulingabove that Maryland did not discriminate against Wentz on the basis of age. While Wentz’[ ] complaint may havebeen a legitimate reaction to allegedly rude conduct by [a supervisor], it could not constitute justifiable opposi-tion to age discrimination, as Wentz was criticized and ultimately terminated because of his poor work perform-ance, and not because of his age.

869 F.2d at 1154 (quoting the district court’s opinion below, No. 4-87-195, slip op. at 289 (D.Minn. Dec. 3,1987)). On appeal, this court reversed and remanded the case to the district court, explaining that, in orderto establish statutorily protected activity, a plaintiff need not show that the conduct he or she opposed wasin fact discriminatory. Id. at 1155. Instead, the plaintiff “must demonstrate a good faith, reasonable beliefthat the underlying challenged action violated the law.” Id. In the present case, there can be little doubt thatplaintiff demonstrated a good faith reasonable belief that defendants’ actions violated the law in light of thedistrict court’s extensive findings which illustrated that “[a]lthough plaintiff committed several violations ofinstitutional rules, plaintiff was treated much more harshly than his co-workers who committed equallysevere or more severe violations.” Hicks I, 756 F.Supp. at 1251. However, by contrast to the plaintiff inWentz, plaintiff in the present case has failed to raise on appeal the district court’s apparent error, and wehold that it does not rise to the level of plain error.

As to whether the district court clearly erred in deciding that defendants were not motivated by a desire toretaliate against plaintiff for engaging in protected activity, which plaintiff did raise on appeal, we considerthe district court’s additional findings regarding some of the significant dates in the present case. The districtcourt specifically noted the dates on which plaintiff filed with the EEOC (April 11, 1984, and May 7, 1984), thedate on which the Department of Corrections received notice of the second complaint (May 17, 1984), andthe date the decision was made to discharge plaintiff (May 21, 1984). Hicks V, slip op. at 289. The district courtfurther found “[t]he decision-maker was the Director of the Division of Adult Institutions, Donald Wyrick.There is no evidence to indicate that Wyrick was aware of the filing of the second complaint.” Id.

The finding that Donald Wyrick was unaware of plaintiff’s second EEOC filing reveals nothing with respect tothe relationship between plaintiff’s discharge and his first EEOC filing.FN10 Moreover, Wyrick was not solelyresponsible for plaintiff’s discharge as it was Powell who initiated the disciplinary proceedings, and it was Longwho recommended plaintiff’s termination notwithstanding the disciplinary review board’s endorsement of athree-day suspension. Hicks I, 756 F.Supp. at 1247-48 (describing the roles of Powell and Long in the context ofplaintiff’s claim that his discharge was racially motivated, but nowhere mentioning Donald Wyrick’s role). Finally,to the extent that “personal animosity” led to plaintiff’s termination, clearly it was not solely Wyrick’s personalfeelings that made it so. See id. at 1251 (“It is clear that Powell had placed plaintiff on the express track to ter-mination. It is also clear that Powell received the aid of Ed Ratliff and Steve Long in this endeavor.”)

FN10. With respect to plaintiff’s first EEOC filing and his demotion, plaintiff failed even to establish a prima faciecase. The April 6, 1984, vote by a disciplinary review board in favor of his demotion occurred five days beforeplaintiff filed his first EEOC complaint. Powell, therefore, had to have recommended the demotion at least fivedays before plaintiff’s first filing. By contrast, however, Long’s decision to recommend plaintiff’s discharge(despite the disciplinary review board’s vote on May 9, 1984, in favor of a three-day suspension) as well asDonald Wyrick’s formal decision to accept Long’s recommendation, occurred approximately one month after thedate on which plaintiff filed his first EEOC complaint (April 11, 1984), and at least nine days after the date onwhich, according to defendants, they received actual notice of plaintiff’s first EEOC complaint (April 30, 1984).See Brief for Appellees at 24 n. 5, & Addendum, at 7 (memorandum from Long to Leigh Wayne, Human RelationsOfficer, stating that notice was received on April 30). Therefore, the timing of events supports the inference thatplaintiff’s first EEOC filing was causally related to his discharge. See Greenwood v. Ross, 778 F.2d 448, 456(8th Cir.1985) (holding that the facts were sufficient to establish a prima facie case of retaliatory discharge where(1) the plaintiff had filed an EEOC complaint and a federal lawsuit, (2) the defendants knew about his protectedactivity and considered it detrimental, and (3) his immediate supervisor, with the knowledge and consent of hissuperiors, refused to renew the plaintiff’s employment contract).

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Nevertheless, the district court did state in its opinion the ultimate factual conclusion that defendants’ decisionto discharge plaintiff “was not motivated by a desire to retaliate against plaintiff for instituting a complaint withthe [EEOC].” Hicks V, slip op. at 289. Therefore, we affirm in light of the Supreme Court’s mandate in Hicks III.

IV.

For the foregoing reasons, the judgment of the district court is affirmed.

544 U.S. 228, 125 S.Ct. 1536, 95 Fair Empl.Prac.Cas. (BNA) 641, 86 Empl. Prac. Dec. P 41,882, 161 L.Ed.2d 410, 73 USLW 4251, 05 Cal. Daily Op. Serv. 2716, 2005 Daily Journal D.A.R. 3713, 18 Fla. L.Weekly Fed. S 211

Supreme Court of the United StatesAzel P. SMITH, et al., Petitioners,

v.CITY OF JACKSON, MISSISSIPPI, et al.

No. 03-1160.Argued Nov. 3, 2004.

Decided March 30, 2005.

Background: Police and public safety officers brought suit against city, under Age Discrimination inEmployment Act (ADEA), alleging that salary increases they received were less generous than increases receivedby younger officers. The United States District Court for the Southern District of Mississippi, William H. Barbour, Jr.,J., granted summary judgment for city. Officers appealed. The United States Court of Appeals for the Fifth Circuit,351 F.3d 183, affirmed dismissal of disparate-impact claim. Certiorari was granted.

Holdings: The Supreme Court, Justice Stevens, held that:(1) ADEA authorizes recovery in disparate-impact cases, but(2) complaint did not set forth valid disparate-impact claim.

Affirmed.

Justice Scalia concurred in part and concurred in the judgment, and filed opinion.

Justice O’Connor concurred in the judgment, and filed opinion in which Justices Kennedy and Thomas joined.

Chief Justice Rehnquist took no part in the decision.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter ofDecisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,337, 26 S.Ct. 282, 50 L.Ed. 499.

In revising its employee pay plan, respondent City granted raises to all police officers and police dispatchers inan attempt to bring their starting salaries up to the regional average. Officers with less than five years’ servicereceived proportionately greater raises than those with more seniority, and most officers over 40 had more thanfive years of service. Petitioners, a group of older officers, filed suit under the Age Discrimination in EmploymentAct of 1967 (ADEA), claiming, inter alia, that they were adversely affected by the plan because of their age. TheDistrict Court granted the City summary judgment. Affirming, the Fifth Circuit ruled that disparate-impact claimsare categorically unavailable under the ADEA, but it assumed that the facts alleged by petitioners would entitlethem to relief under Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, which announced adisparate-impact theory of recovery for cases brought under Title VII of the Civil Rights Act of 1964 (Title VII).Held: The judgment is affirmed.351 F.3d 183, affirmed.



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Justice STEVENS delivered the opinion of the Court with respect to Parts I, II, and IV, concluding:

1. The ADEA authorizes recovery in disparate-impact cases comparable to Griggs. Except for the substitutionof “age” for “race, color, religion, sex, or national origin,” the language of ADEA § 4(a)(2) and Title VII§ 703(a)(2) is identical. Unlike Title VII, however, ADEA § 4(f)(1) significantly narrows its coverage bypermitting any “otherwise prohibited” action “where the differentiation is based on reasonable factorsother than age” (hereinafter RFOA provision). Pp. 1539-1541.

2. Petitioners have not set forth a valid disparate-impact claim. Two textual differences between the ADEAand Title VII make clear that the disparate-impact theory’s scope is narrower under the ADEA thanunder Title VII. One is the RFOA provision. The other is the amendment to Title VII in the Civil RightAct of 1991, which modified this Court’s Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115,104 L.Ed.2d 733, holding that narrowly construed the scope of liability on a disparate-impact theory.Because the relevant 1991 amendments expanded Title VII’s coverage but did not amend the ADEA orspeak to age discrimination, Wards Cove’s pre-1991 interpretation of Title VII’s identical language remainsapplicable to the ADEA. Congress’ decision to limit the ADEA’s coverage by including the RFOA provisionis consistent with the fact that age, unlike Title VII’s protected classifications, not uncommonly hasrelevance to an individual’s capacity to engage in certain types of employment. Here, petitioners havedone little more than point out that the pay plan is relatively less generous to older workers than toyounger ones. They have not, as required by Wards Cove, identified any specific test, requirement, orpractice within the pay plan that has an adverse impact on older workers. Further, the record makes clearthat the City’s plan was based on reasonable factors other than age. The City’s explanation for thedifferential between older and younger workers was its perceived need to make junior officers’ salariescompetitive with comparable positions in the market. Thus, the disparate impact was attributable to theCity’s decision to give raises based on seniority and position. Reliance on these factors is unquestionablyreasonable given the City’s goal. Pp. 1544-1546.

Justice STEVENS, joined by Justice SOUTER, Justice GINSBURG, and Justice BREYER, concluded in Part III thatthe ADEA’s text, the RFOA provision, and Equal Employment Opportunity Commission (EEOC) regulations allsupport the conclusion that a disparate-impact theory is cognizable under the ADEA. Pp. 1541-1544.

Justice SCALIA concluded that the reasoning in Part III of Justice STEVENS’ opinion is a basis for deferring,pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694, to the EEOC’s reasonable view that the ADEA authorizes disparate-impact claims. Pp. 1546-1549.

Justice O’CONNOR, joined by Justice KENNEDY and Justice THOMAS, concluded that the judgment should beaffirmed on the ground that disparate impact claims are not cognizable under the ADEA. Pp. 1549-1560.STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to PartsI, II, and IV, in which SCALIA, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect toPart III, in which SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in partand concurring in the judgment. O’CONNOR, J., filed an opinion concurring in the judgment, in which KENNEDYand THOMAS, JJ., joined. REHNQUIST, C. J., took no part in the decision of the case.

Counsel for petitioners were principally assisted by the following students in the Stanford Law School SupremeCourt Litigation Clinic: Michael P. Abate and C. Lee Reeves, Clinic members, Eric J. Feigin, Daniel S. Goldman,David B. Sapp, Mara Silver, and Sean Tonolli also participated.

Pamela S. Karlan, Stanford, CA, Dennis L. Horn, Horn & Payne, PLLC, Madison, MS, Thomas C. Goldstein,Counsel of Record, Amy Howe, Goldstein & Howe, P.C., Washington, DC, Brief of the Petitioners.

Laurie A. McCann, Daniel B. Kohrman and Melvin Radowitz, AARP, Washington DC, John G. Crabtree, KeyBiscayne FL, Academy of Florida Trial Lawyers, and Michael Evan Gold, Ithaca NY, Cornell University Chapterof American Association of University Professors, Amici Curiae in support of petitioners.

Terry Wallace, City Attorney, City of Jackson, Mississippi, Jackson, MS, Samuel L. Begley, Begley Law Firm, PLLC,Jackson, MS, Glen D. Nager, Counsel of Record, Michael A. Carvin, Louis K. Fisher, Jones Day, Washington, DC,Counsel for Respondents.

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Ann Elizabeth Reesman, McGuiness Norris & Williams, LLP, Washington DC, Equal Employment AdvisoryCouncil, Peter Buscemi, Grace Speights, Anne Brafford, Morgan, Lewis & Bockius LLP, Washington DC, MarkDichter, Morgan, Lewis & Bockius LLP, Philadelphia PA, and Stephen A. Bokat, Robin S. Conrad, Ellen DunhamBryant, National Chamber Litigation Center, Washington DC, Chamber of Commerce of the United States, PaulGrossman, Paul W. Cane, Jr., Neal D. Mollen, Carson H. Sullivan, Paul, Hastings, Janofsky & Walker LLP, Los Angeles CA California Employment Law Council, and John H. Findley, Pacific Legal Foundation,Sacramento CA, Amici Curiae in support of respondents.

For U.S. Supreme Court briefs, see:2004 WL 1369172 (Pet.Brief)2004 WL 1881768 (Resp.Brief)2004 WL 2190435(Reply.Brief)

Justice STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect toParts I, II, and IV, and an opinion with respect to Part III, in which Justice SOUTER, Justice GINSBURG, andJustice BREYER join.

Petitioners, police and public safety officers employed by the city of Jackson, Mississippi (hereinafter City), con-tend that salary increases received in 1999 violated the Age Discrimination in Employment Act of 1967 (ADEA)because they were less generous to officers over the age of 40 than to younger officers. Their suit raises the ques-tion whether the “disparate-impact” theory of recovery announced in Griggs v. Duke Power Co., 401 U.S. 424,91 S.Ct. 849, 28 L.Ed.2d 158 (1971), for cases brought under Title VII of the Civil Rights Act of 1964, is cognizableunder the ADEA. Despite the age of the ADEA, it is a question that we have not yet addressed. See Hazen PaperCo. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993); Markham v. Geller, 451 U.S. 945,101 S.Ct. 2028, 68 L.Ed.2d 332 (1981) (REHNQUIST, J., dissenting from denial of certiorari).

I

On October 1, 1998, the City adopted a pay plan granting raises to all City employees. The stated purpose of theplan was to “attract and retain qualified people, provide incentive for performance, maintain competitivenesswith other public sector agencies and ensure equitable compensation to all employees regardless of age, sex,race and/or disability.” FN1 On May 1, 1999, a revision of the plan, which was motivated, at least in part, by theCity’s desire to bring the starting salaries of police officers up to the regional average, granted raises to all policeofficers and police dispatchers. Those who had less than five years of tenure received proportionately greaterraises when compared to their former pay than those with more seniority. Although some officers over the ageof 40 had less than five years of service, most of the older officers had more.

FN1. App. 15.

Petitioners are a group of older officers who filed suit under the ADEA claiming both that the City deliberatelydiscriminated against them because of their age (the “disparate-treatment” claim) and that they were “adverselyaffected” by the plan because of their age (the “disparate-impact” claim). The District Court granted summaryjudgment to the City on both claims. The Court of Appeals held that the ruling on the former claim was prema-ture because petitioners were entitled to further discovery on the issue of intent, but it affirmed the dismissal ofthe disparate-impact claim. 351 F.3d 183 (C.A.5 2003). Over one judge’s dissent, the majority concluded that disparate-impact claims are categorically unavailable under the ADEA. Both the majority and the dissent assumedthat the facts alleged by petitioners would entitle them to relief under the reasoning of Griggs.

We granted the officers’ petition for certiorari, 541 U.S. 958, 124 S.Ct. 1724, 158 L.Ed.2d 398 (2004), and now holdthat the ADEA does authorize recovery in “disparate-impact” cases comparable to Griggs. Because, however, weconclude that petitioners have not set forth a valid disparate-impact claim, we affirm.

II

During the deliberations that preceded the enactment of the Civil Rights Act of 1964, Congress considered andrejected proposed amendments that would have included older workers among the classes protected fromemployment discrimination.FN2 General Dynamics Land Systems, Inc.v.Cline, 540 U.S. 581, 587, 124 S.Ct. 1236,157 L.Ed.2d 1094 (2004). Congress did, however, request the Secretary of Labor to “make a full and completestudy of the factors which might tend to result in discrimination in employment because of age and of the



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consequences of such discrimination on the economy and individuals affected.” § 715, 78 Stat. 265. TheSecretary’s report, submitted in response to Congress’ request, noted that there was little discrimination arisingfrom dislike or intolerance of older people, but that “arbitrary” discrimination did result from certain age limits. Reportof the Secretary of Labor, The Older American Worker: Age Discrimination in Employment 5 (June 1965), reprintedin U.S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination in EmploymentAct (1981) Doc. No. 5 (hereinafter Wirtz Report). Moreover, the report observed that discriminatory effects resultedfrom “[i]nstitutional arrangements that indirectly restrict the employment of older workers.” Id., at 15.

FN2. See 110 Cong. Rec. 2596-2599 (1964) (amendment offered by Rep. Dowdy, voted down 123 to 94); id., at9911-9913, 13490-13492 (amendment offered by Sen. Smathers, voted down 63 to 28).

In response to that report Congress directed the Secretary to propose remedial legislation, see Fair LaborStandards Amendments of 1966, Pub.L. 89-601, § 606, 80 Stat. 845, and then acted favorably on his proposal. Asenacted in 1967, § 4(a)(2) of the ADEA, now codified as 29 U.S.C. § 623(a) (2), provided that it shall be unlaw-ful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend todeprive any individual of employment opportunities or otherwise adversely affect his status as an employee,because of such individual’s age ····” 81 Stat. 603. Except for substitution of the word “age” for the words “race,color, religion, sex, or national origin,” the language of that provision in the ADEA is identical to that found in § 703(a)(2) of the Civil Rights Act of 1964 (Title VII). Other provisions of the ADEA also parallel the earlierstatute.FN3 Unlike Title VII, however, § 4(f)(1) of the ADEA, 81 Stat. 603, contains language that significantly nar-rows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reason-able factors other than age” (hereinafter RFOA provision).

FN3. Like Title VII with respect to all protected classes except race, the ADEA provides an affirmative defenseto liability where age is “a bona fide occupational qualification reasonably necessary to the normal operation ofthe particular business ···,” § 4(f)(1), 81 Stat. 603; Cf. Civil Rights Act of 1964, § 703(e), 78 Stat. 256 (“Notwithstandingany other provision of this title, ··· it shall not be [unlawful to perform any of the prohibited activities in §§ 703(a)-(d) ] on the basis of his religion, sex, or national origin in those certain instances where religion, sex,or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of thatparticular business or enterprise ···.”)

III

In determining whether the ADEA authorizes disparate-impact claims, we begin with the premise that whenCongress uses the same language in two statutes having similar purposes, particularly when one is enactedshortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in bothstatutes. Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973)(per curiam). We have consistently applied that presumption to language in the ADEA that was “derived in haecverba from Title VII.” Lorillard v.Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). FN4 our unanimousinterpretation of § 703(A)(2) of Title VII in Griggs is therefore a precedent of compelling importance.

FN4. Oscar Mayer & Co.v.Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) (interpreting § 14(b) ofthe ADEA in light of § 706(c) of Title VII); Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 416, 105 S.Ct. 2743,86 L.Ed.2d 321 (1985) (interpreting ADEA’s bona fide occupational qualification exception in light of Title VII’sBFOQ exception); Trans World Airlines, Inc. v.Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)(interpreting the ADEA to apply to denial of privileges cases in a similar manner as under Title VII).

In Griggs, a case decided four years after the enactment of the ADEA, we considered whether § 703 of Title VIIprohibited an employer “from requiring a high school education or passing of a standardized general intelligencetest as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantlyrelated to successful job performance, (b) both requirements operate to disqualify Negroes at a substantiallyhigher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employeesas part of a longstanding practice of giving preference to whites.” 401 U.S., at 425-426, 91 S.Ct. 849. Acceptingthe Court of Appeals’ conclusion that the employer had adopted the diploma and test requirements without anyintent to discriminate, we held that good faith “does not redeem employment procedures or testing mecha-nisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”Id., at 432, 91 S.Ct. 849.

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We explained that Congress had “directed the thrust of the Act to the consequences of employment practices,not simply the motivation.” Ibid. We relied on the fact that history is “filled with examples of men and womenwho rendered highly effective performance without the conventional badges of accomplishment in terms of cer-tificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the common-sense proposition that they are not to become masters of reality.” Id., at 433, 91 S.Ct. 849. And we noted that theEqual Employment Opportunity Commission (EEOC), which had enforcement responsibility, had issued guide-lines that accorded with our view. Id., at 433-434, 91 S.Ct. 849. We thus squarely held that § 703(a)(2) of Title VIIdid not require a showing of discriminatory intent.FN5

FN5. The congressional purposes on which we relied in Griggs have a striking parallel to two important pointsmade in the Wirtz Report. Just as the Griggs opinion ruled out discrimination based on racial animus as a prob-lem in that case, the Wirtz Report concluded that there was no significant discrimination of that kind so far asolder workers are concerned. Wirtz Report 6. And just as Griggs recognized that the high school diploma require-ment, which was unrelated to job performance, had an unfair impact on African-Americans who had receivedinferior educational opportunities in segregated schools, 401 U.S., at 430, 91 S.Ct. 849, the Wirtz Report identi-fied the identical obstacle to the employment of older workers. “Any formal employment standard whichrequires, for example, a high school diploma will obviously work against the employment of many older work-ers unfairly if, despite his limited schooling, an older worker’s years of experience have given him the relevantequivalent of a high school education.” Wirtz Report 3. Thus, just as the statutory text is identical, there is aremarkable similarity between the congressional goals we cited in Griggs and those present in the Wirtz Report.

While our opinion in Griggs relied primarily on the purposes of the Act, buttressed by the fact that the EEOChad endorsed the same view, we have subsequently noted that our holding represented the better reading of the statu-tory text as well. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988).Neither § 703(a)(2) nor the comparable language in the ADEA simply prohibits actions that “limit, segregate, orclassify” persons; rather the language prohibits such actions that “deprive any individual of employment oppor-tunities or otherwise adversely affect his status as an employee, because of such individual’s” race or age. Ibid.(explaining that in disparate-impact cases, “the employer’s practices may be said to ‘adversely affect [an individ-ual’s status] as an employee’ ” (alteration in original) (quoting 42 U.S.C. § 2000e-2(a)(2))). Thus the text focuseson the effects of the action on the employee rather than the motivation for the action of the employer.FN6

FN6. In reaching a contrary conclusion, Justice O’CONNOR ignores key textual differences between § 4(a)(1),which does not encompass-disparate-impact liability, and § 4(a)(2). Paragraph (a)(1) makes it unlawful for anemployer “to fail or refuse to hire ··· any individual (3)27 because of such individual’s age.” (Emphasis added.)The focus of the paragraph is on the employer’s actions with respect to the targeted individual. Paragraph (a)(2),however, makes it unlawful for an employer “to limit ··· his employees in any way which would deprive or tendto deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,because of such individual’s age.” (Emphasis added.) Unlike in paragraph (a)(1), there is thus an incongruitybetween the employer’s actions-which are focused on his employees generally-and the individual employee whoadversely suffers because of those actions. Thus, an employer who classifies his employees without respect toage may still be liable under the terms of this paragraph if such classification adversely affects the employeebecause of that employee’s age-the very definition of disparate impact. Justice O’CONNOR is therefore quitewrong to suggest that the textual differences between the two paragraphs are unimportant.

Griggs, which interpreted the identical text at issue here, thus strongly suggests that a disparate-impacttheory should be cognizable under the ADEA. FN7 Indeed, for over two decades after our decision in Griggs,the Courts of Appeal uniformly interpreted the ADEA as authorizing recovery on a “disparate-impact” theoryin appropriate cases.FN8 IT WAS ONLY AFTER our decision in hazen paper co. v. biggIns, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), that some of those courts concluded that the ADEA did not author-ize a disparate-impact theory of liability.FN9 Our opinion in Hazen Paper, however, did not address or com-ment on the issue we decide today. In that case, we held that an employee’s allegation that he wasdischarged shortly before his pension would have vested did not state a cause of action under a disparate-treatment theory. The motivating factor was not, we held, the employee’s age, but rather his years of serv-ice, a factor that the ADEA did not prohibit an employer from considering when terminating an employee.Id., at 612, 113 S.Ct. 1701.FN10 While we noted that disparate-treatment “ captures the essence of whatCongress sought to prohibit in the ADEA,” id., at 610, 113 S.Ct. 1701, we were careful to explain that we



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were not deciding “whether a disparate impact theory of liability is available under the ADEA ····” Ibid. Insum, there is nothing in our opinion in Hazen Paper that precludes an interpretation of the ADEA that par-allels our holding in Griggs.

FN7. Justice O’CONNOR reaches a contrary conclusion based on the text of the statute, the legislative history,and the structure of the statute. As we explain above, n. 6, supra, her textual reasoning is not persuasive. Further,while Congress may have intended to remedy disparate-impact type situations through “noncoercive measures”in part, there is nothing to suggest that it intended such measures to be the sole method of achieving the desiredresult of remedying practices that had an adverse effect on older workers. Finally, we agree that the differencesbetween age and the classes protected in Title VII are relevant, and that Congress might well have intended totreat the two differently. See infra, at 1552 (O’CONNOR, J., concurring in judgment). However, Congress obvi-ously considered those classes of individuals to be sufficiently similar to warrant enacting identical legislation, atleast with respect to employment practices it sought to prohibit. While those differences, coupled with adifference in the text of the statute such as the RFOA provision, may warrant addressing disparate-impact claimsin the two statutes differently, see infra, at 1544-1545, it does not justify departing from the plain text and oursettled interpretation of that text.

FN8. B. Lindemann & D. Kadue, Age Discrimination in Employment Law 416, and n. 16 (2003) (citing Holt v.Gamewell Corp., 797 F.2d 36, 37 (C.A.1 1986); Maresco v.Evans Chemetics, 964 F.2d 106, 115 (C.A.2 1992); Blumv.Witco Chemical Corp., 829 F.2d 367, 372 (C.A.3 1987); Wooden v.Board of Ed.of Jefferson Cty., Ky., 931 F.2d 376,379 (C.A.6 1991); Monroe v. United Air Lines, 736 F.2d 394, 404, n. 3 (C.A.7 1984); Dace v.ACF Industries,722 F.2d 374, 378 (C.A.8 1983), modified, 728 F.2d 976 (1984) (per curiam);Palmer v.United States, 794 F.2d 534,536 (C.A.9 1986); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419 (C.A.10 1993) (assuming disparate-impacttheory); MacPherson v.University of Montevallo, 922 F.2d 766, 771 (C.A.11 1991); Arnold v.United States PostalServ., 863 F.2d 994, 998 (C.A.D.C.1988) (assuming disparate-impact theory).

FN9. See, e.g., Mullin v.Raytheon Co., 164 F.3d 696, 700 (C.A.1 1999) (“[T]ectonic plates shifted when the Courtdecided [Hazen Paper] ”); Gantt v.Wilson Sporting Goods Co., 143 F.3d 1042, 1048 (C.A.6 1998) (“[T]here is nowconsiderable doubt as to whether a claim of age discrimination may exist under a disparate-impact theory” (inter-nal quotation marks omitted)). See also Lindemann & Kadue, Age Discrimination in Employment Law, at 417-418,n. 23 (collecting cases). In contrast to the First, Seventh, Tenth, and Eleventh Circuits, which have held that thereis no disparate-impact theory, the Second, Eighth, and Ninth Circuits continue to recognize such a theory. Id., at417, and n. 22.

FN10. We did note, however, that the challenged conduct was actionable under § 510 of the Employee RetirementIncome Security Act of 1974. 507 U.S., at 612, 113 S.Ct. 1701.

The Court of Appeals’ categorical rejection of disparate-impact liability, like Justice O’CONNOR’s, rested primarilyon the RFOA provision and the majority’s analysis of legislative history. As we have already explained, we thinkthe history of the enactment of the ADEA, with particular reference to the Wirtz Report, supports the pre- HazenPaper consensus concerning disparate-impact liability. And Hazen Paper itself contains the response to the con-cern over the RFOA provision.

The RFOA provision provides that it shall not be unlawful for an employer “to take any action otherwise pro-hibited under subsectio[n] (a) ··· where the differentiation is based on reasonable factors other than age discrim-ination ····” 81 Stat. 603. In most disparate-treatment cases, if an employer in fact acted on a factor other thanage, the action would not be prohibited under subsection (a) in the first place. See Hazen Paper, 507 U.S., at609, 113 S.Ct. 1701 (“[T]here is no disparate treatment under the ADEA when the factor motivating the employeris some feature other than the employee’s age.”) In those disparate-treatment cases, such as in Hazen Paper itself,the RFOA provision is simply unnecessary to avoid liability under the ADEA, since there was no prohibited actionin the first place. The RFOA provision is not, as Justice O’CONNOR suggests, a “safe harbor from liability,” post,at 1551 (emphasis deleted), since there would be no liability under § 4(a). See Texas Dept.of Community Affairsv.Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (noting, in a Title VII case, that an employercan defeat liability by showing that the employee was rejected for “a legitimate, nondiscriminatory reason” with-out reference to an RFOA provision).

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In disparate-impact cases, however, the allegedly “otherwise prohibited” activity is not based on age. Ibid.(“ ‘[C]laims that stress “disparate impact” [by contrast] involve employment practices that are facially neutral intheir treatment of different groups but that in fact fall more harshly on one group than another ···’ ” (quotingTeamsters v.United States, 431 U.S. 324, 335-336, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977))). It is, accordingly,in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liabil-ity if the adverse impact was attributable to a nonage factor that was “reasonable.” Rather than support an argu-ment that disparate impact is unavailable under the ADEA, the RFOA provision actually supports the contraryconclusion.FN11

FN11. We note that if Congress intended to prohibit all disparate-impact claims, it certainly could have doneso. For instance, in the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1), Congress barred recovery if a pay dif-ferential was based “on any other factor”-reasonable or unreasonable-“other than sex.” The fact thatCongress provided that employers could use only reasonable factors in defending a suit under the ADEAis therefore instructive.

Finally, we note that both the Department of Labor, which initially drafted the legislation, and the EEOC, whichis the agency charged by Congress with responsibility for implementing the statute, 29 U.S.C. § 628, have con-sistently interpreted the ADEA to authorize relief on a disparate-impact theory. The initial regulations, while notmentioning disparate impact by name, nevertheless permitted such claims if the employer relied on a factor thatwas not related to age. 29 CFR § 860.103(f)(1)(i) (1970) (barring physical fitness requirements that were not “rea-sonably necessary for the specific work to be performed”). See also § 1625.7 (2004) (setting forth the standardsfor a disparate-impact claim).

The text of the statute, as interpreted in Griggs, the RFOA provision, and the EEOC regulations all supportpetitioners’ view. We therefore conclude that it was error for the Court of Appeals to hold that the disparate-impact theory of liability is categorically unavailable under the ADEA.

IV

Two textual differences between the ADEA and Title VII make it clear that even though both statutes authorizerecovery on a disparate-impact theory, the scope of disparate-impact liability under ADEA is narrower than under Title VII. The first is the RFOA provision, which we have already identified. The second is the amendmentto Title VII contained in the Civil Rights Act of 1991, 105 Stat. 1071. One of the purposes of that amendment wasto modify the Court’s holding in Wards Cove Packing Co.v.Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989),a case in which we narrowly construed the employer’s exposure to liability on a disparate-impact theory. SeeCivil Rights Act of 1991, § 2, 105 Stat. 1071. While the relevant 1991 amendments expanded the coverage of Title VII,they did not amend the ADEA or speak to the subject of age discrimination. Hence, Wards Cove’s pre-1991interpretation of Title VII’s identical language remains applicable to the ADEA.

Congress’ decision to limit the coverage of the ADEA by including the RFOA provision is consistent withthe fact that age, unlike race or other classifications protected by Title VII, not uncommonly has relevanceto an individual’s capacity to engage in certain types of employment. To be sure, Congress recognized thatthis is not always the case, and that society may perceive those differences to be larger or more consequen-tial than they are in fact. However, as Secretary Wirtz noted in his report, “certain circumstances ··· unques-tionably affect older workers more strongly, as a group, than they do younger workers.” Wirtz Report 11.Thus, it is not surprising that certain employment criteria that are routinely used may be reasonable despitetheir adverse impact on older workers as a group. Moreover, intentional discrimination on the basis of agehas not occurred at the same levels as discrimination against those protected by Title VII. While the ADEAreflects Congress’ intent to give older workers employment opportunities whenever possible, the RFOA pro-vision reflects this historical difference.

Turning to the case before us, we initially note that petitioners have done little more than point out that the payplan at issue is relatively less generous to older workers than to younger workers. They have not identified anyspecific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As weheld in Wards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to ageneralized policy that leads to such an impact. Rather, the employee is “ ‘responsible for isolating and identifying



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the specific employment practices that are allegedly responsible for any observed statistical disparities.’ ”490 U.S., at 656, 109 S.Ct. 2115 (emphasis added) (quoting Watson, 487 U.S., at 994, 108 S.Ct. 2777). Petitionershave failed to do so. Their failure to identify the specific practice being challenged is the sort of omission thatcould “result in employers being potentially liable for ‘the myriad of innocent causes that may lead to statisticalimbalances ····’ ” 490 U.S., at 657, 109 S.Ct. 2115. In this case not only did petitioners thus err by failing to iden-tify the relevant practice, but it is also clear from the record that the City’s plan was based on reasonable factorsother than age.

The plan divided each of five basic positions-police officer, master police officer, police sergeant, policelieutenant, and deputy police chief-into a series of steps and half-steps. The wage for each range was basedon a survey of comparable communities in the Southeast. Employees were then assigned a step (or half-step) within their position that corresponded to the lowest step that would still give the individual a 2% raise.Most of the officers were in the three lowest ranks; in each of those ranks there were officers under age 40and officers over 40. In none did their age affect their compensation. The few officers in the two highestranks are all over 40. Their raises, though higher in dollar amount than the raises given to junior officers,represented a smaller percentage of their salaries, which of course are higher than the salaries paid to theirjuniors. They are members of the class complaining of the “disparate impact” of the award.

Petitioners’ evidence established two principal facts: First, almost two-thirds (66.2%) of the officers under40 received raises of more than 10% while less than half (45.3%) of those over 40 did.FN12 Second, the averagepercentage increase for the entire class of officers with less than five years of tenure was somewhat higher thanthe percentage for those with more seniority.FN13 Because older officers tended to occupy more senior positions,on average they received smaller increases when measured as a percentage of their salary. The basic explanationfor the differential was the City’s perceived need to raise the salaries of junior officers to make them competitivewith comparable positions in the market.

FN12. Exh. C, Record 1192.

FN13. App. to Pet. for Cert. 41a.

Thus, the disparate impact is attributable to the City’s decision to give raises based on seniority and position.Reliance on seniority and rank is unquestionably reasonable given the City’s goal of raising employees’ salariesto match those in surrounding communities. In sum, we hold that the City’s decision to grant a larger raise tolower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces wasa decision based on a “reasonable factor other than age” that responded to the City’s legitimate goal of retain-ing police officers. Cf. MacPherson v.University of Montevallo, 922 F.2d 766, 772 (C.A.11 1991).

While there may have been other reasonable ways for the City to achieve its goals, the one selected was notunreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer toachieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includesno such requirement.

Accordingly, while we do not agree with the Court of Appeals’ holding that the disparate-impact theory of recov-ery is never available under the ADEA, we affirm its judgment.

It is so ordered.

THE CHIEF JUSTICE took no part in the decision of this case.

Justice SCALIA, concurring in part and concurring in the judgment.I concur in the judgment of the Court, and join all except Part III of its opinion. As to that Part, I agree with allof the Court’s reasoning, but would find it a basis, not for independent determination of the disparate-impactquestion, but for deferral to the reasonable views of the Equal Employment Opportunity Commission (EEOC orCommission) pursuant to Chevron U.S.A.Inc.v.Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778,81 L.Ed.2d 694 (1984). See General Dynamics Land Systems, Inc. v.Cline, 540 U.S. 581, 601-602, 124 S.Ct. 1236,157 L.Ed.2d 1094 (2004) (SCALIA, J., dissenting).

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This is an absolutely classic case for deference to agency interpretation. The Age Discrimination in EmploymentAct of 1967 (ADEA), 29 U.S.C. § 621 et seq., confers upon the EEOC authority to issue “such rules and regulations asit may consider necessary or appropriate for carrying out the” ADEA. § 628. Pursuant to this authority, the EEOCpromulgated, after notice-and-comment rulemaking, see 46 Fed.Reg. 47724, 47727 (1981), a regulation that readsas follows:

“When an employment practice, including a test, is claimed as a basis for different treatment of employees or appli-cants for employment on the grounds that it is a ‘factor other than’ age, and such a practice has an adverse impact onindividuals within the protected age group, it can only be justified as a business necessity.” 29 CFR § 1625.7(d) (2004).

The statement of the EEOC which accompanied publication of the agency’s final interpretation of the ADEAsaid the following regarding this regulation: “Paragraph (d) of § 1625.7 has been rewritten to make it clearthat employment criteria that are age-neutral on their face but which nevertheless have a disparate impacton members of the protected age group must be justified as a business necessity. See Laugesen v.AnacondaCo., 510 F.2d 307 (6th Cir.1975); Griggs v.Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).”46 Fed.Reg., at 47725. The regulation affirmed, moreover, what had been the longstanding position of the Departmentof Labor, the agency that previously administered the ADEA, see ante, at 1544; 29 CFR § 860.103(f)(1)(i) (1970). Andfinally, the Commission has appeared in numerous cases in the lower courts, both as a party and as amicus curiae,to defend the position that the ADEA authorizes disparate-impact claims.FN1 Even under the unduly constrained stan-dards of agency deference recited in United States v.Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001),the EEOC’s reasonable view that the ADEA authorizes disparate-impact claims is deserving of deference. Id., at229-231, and n. 12, 121 S.Ct. 2164. A fortiori, it is entitled to deference under the pre- Mead formulation ofChevron, to which I continue to adhere. See 533 U.S., at 256-257, 121 S.Ct. 2164 (SCALIA, J., dissenting).

FN1. See, e.g., Brief for EEOC as Amicus Curiae Supporting Plaintiffs-Appellees in Meacham v.Knolls Atomic PowerLab., No. 02-4083(L) etc. (CA2), p. 12, available at http://www.eeoc.gov/briefs/ meacha.txt (all Internet materialsas visited Mar. 24, 2005, and available in Clerk of Court’s case file) (“The Commission has consistently defended[the interpretation announced in 29 CFR § 1625.7(d) (2004)], arguing that a claim of discrimination under a disparateimpact theory is cognizable.”); Brief for EEOC as Amicus Curiae Supporting Plaintiffs-Appellants Seeking Reversalin Sitko v.Goodyear Tire & Rubber Co., No. 02-4083(CA6), p. 8, available at http://www.eeoc.gov/sitkov.txt (pend-ing); EEOC v.McDonnell Douglas Corp., 191 F.3d 948, 950-951 (C.A.8 1999).

Justice O’CONNOR both denies that the EEOC has taken a position on the existence of disparate-impact claimsand asserts that, even if it has, its position does not deserve deference. See post, at 1558-1560 opinion concurringin judgment). The first claim cannot be squared with the text of the EEOC’s regulation, quoted above. This cannotpossibly be read as agnostic on the question whether the ADEA prohibits employer practices that have adisparate impact on the aged. It provides that such practices “can only be justified as a business necessity,”compelling the conclusion that, absent a “business necessity,” such practices are prohibited.FN2

FN2. Perhaps Justice O’CONNOR adopts the narrower position that, while the EEOC has taken the view that theADEA prohibits actions that have a disparate impact, it has stopped short of recognizing “disparate impactclaims.” Post, at 1558 (opinion concurring in judgment) (emphasis added). If so, this position is equally mis-guided. The EEOC need not take the extra step of recognizing that individuals harmed by prohibited actionshave a right to sue; the ADEA itself makes that automatic. 29 U.S.C. § 626(c) (“Any person aggrieved may bringa civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the pur-poses of this chapter ···.”)

Justice O’CONNOR would not defer to the EEOC regulation, even if it read as it does, because, she says, the reg-ulation “does not purport to interpret the language of § 4(a) at all,” but is rather limited to an interpretation ofthe “reasonable factors other than age” (RFOA) clause of § 4(f)(1) of the ADEA, which she says is not at issue.Post, at 19. This argument assumes, however, that the RFOA clause operates independently of the remainder ofthe ADEA. It does not. Section 4(f)(1) provides, in relevant part:

“It shall not be unlawful for an employer, employment agency, or labor organization ··· to take any actionotherwise prohibited under subsections (a), (b), (c), or (e) of this section ··· where the differentiation is basedon reasonable factors other than age ····” 29 U.S.C. § 623(f)(1) (emphasis added).



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As this text makes clear, the RFOA defense is relevant only as a response to employer actions “otherwise pro-hibited” by the ADEA. Hence, the unavoidable meaning of the regulation at issue is that the ADEA prohibitsemployer actions that have an “adverse impact on individuals within the protected age group.” 29 CFR § 1625.7(d)(2004). And, of course, the only provision of the ADEA that could conceivably be interpreted to effect such aprohibition is § 4(a)(2)-the provision that Justice O’CONNOR maintains the EEOC “does not purport to interpret··· at all.” Post, at 1559.FN3

FN3. Justice O’CONNOR argues that the regulation does not necessarily construe subsection (4)(a)(2) to prohibitdisparate impact, because disparate treatment also can have the effect which the regulation addresses-viz., “anadverse impact on individuals within the protected age group,” 29 CFR § 1625.7(d). See post, at 1559. That is trueenough. But the question here is not whether disparate treatment claims (when they have a disparate impact)are also covered by the regulation; it is whether disparate impact claims of all sorts are covered; and there is noway to avoid the conclusion (consistently reaffirmed by the agency’s actions over the years) that they are. Thatis also a complete response to Justice O’CONNOR’s point that the regulation could not refer to § 4(a)(2) becauseit includes “applicants for employment,” who are protected only under § 4(a)(1). Perhaps applicants for employ-ment are covered only when (as Justice O’CONNOR posits) disparate treatment results in disparate impact; orperhaps the agency’s attempt to sweep employment applications into the disparate impact prohibition is mis-taken. But whatever in addition it may cover, or may erroneously seek to cover, it is impossible to contend thatthe regulation does not cover actions that “limit, segregate or classify” employees in a way that produces a dis-parate impact on those within the protected age group; and the only basis for its interpretation that those actionsare prohibited is § (4)(a)(2).

Lastly, Justice O’CONNOR argues that the EEOC’s interpretation of what is “otherwise prohibited” by the ADEAis not entitled to deference because the Court concludes that the same regulation’s interpretation of anotherterm—the term “reasonable factors other than age,” which the regulation takes to include only “business neces-sity”—is unreasonable. Post, at 1560. Her logic seems to be that, because the two interpretations appear in thesame paragraph, they should stand or fall together. She cites no case for this proposition, and it makes little sense.If the two simultaneously adopted interpretations were contained in distinct paragraphs, the invalidation of onewould not, of course, render the other infirm. (Justice O’CONNOR does not mean to imply, I assume, that ourrejection of the EEOC’s application of the phrase “reasonable factors other than age” to disparate impact claimsin paragraph (d) of § 1625.7 relieves the lower courts of the obligation to defer to the EEOC’s other applicationsof the same phrase in paragraph (c) or (e)). I can conceive no basis for a different rule simply because the twosimultaneously adopted interpretations appear in the same paragraph.

The EEOC has express authority to promulgate rules and regulations interpreting the ADEA. It has exercised thatauthority to recognize disparate-impact claims. And, for the reasons given by the plurality opinion, its positionis eminently reasonable. In my view, that is sufficient to resolve this case.

Justice O’CONNOR, with whom Justice KENNEDY and Justice THOMAS join, concurring in the judgment.

“Disparate treatment ··· captures the essence of what Congress sought to prohibit in the [Age Discrimination inEmployment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.] It is the very essence of age discrimination for an olderemployee to be fired because the employer believes that productivity and competence decline with old age.”Hazen Paper Co.v.Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). In the nearly four decadessince the ADEA’s enactment, however, we have never read the statute to impose liability upon an employer withoutproof of discriminatory intent. See ibid.; Markham v.Geller, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981)(REHNQUIST, J., dissenting from denial of certiorari). I decline to join the Court in doing so today.

I would instead affirm the judgment below on the ground that disparate impact claims are not cognizable under the ADEA. The ADEA’s text, legislative history, and purposes together make clear that Congress did notintend the statute to authorize such claims. Moreover, the significant differences between the ADEA and Title VIIof the Civil Rights Act of 1964 counsel against transposing to the former our construction of the latter in Griggsv. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Finally, the agencies charged with admin-istering the ADEA have never authoritatively construed the statute’s prohibitory language to impose disparateimpact liability. Thus, on the precise question of statutory interpretation now before us, there is no reasoned agencyreading of the text to which we might defer.

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I

A

Our starting point is the statute’s text. Section 4(a) of the ADEA makes it unlawful for an employer:

“(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual withrespect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; [or]

“(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any indi-vidual of employment opportunities or otherwise adversely affect his status as an employee, because of suchindividual’s age ····” 29 U.S.C. § 623(a).

Neither petitioners nor the plurality contend that the first paragraph, § 4(a)(1), authorizes disparate impact claims,and I think it obvious that it does not. That provision plainly requires discriminatory intent, for to take an actionagainst an individual “ because of such individual’s age” is to do so “by reason of” or “on account of” her age.See Webster’s Third New International Dictionary 194 (1961); see also Teamsters v. United States, 431 U.S. 324,335-336, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) ( “ ‘Disparate treatment’ ··· is the most easily understood typeof discrimination. The employer simply treats some people less favorably than others because of their [protectedcharacteristic]. Proof of discriminatory motive is critical” (emphasis added)).

Petitioners look instead to the second paragraph, § 4(a)(2), as the basis for their disparate impact claim. But peti-tioners’ argument founders on the plain language of the statute, the natural reading of which requires proof ofdiscriminatory intent. Section 4(a)(2) uses the phrase “because of ··· age” in precisely the same manner as doesthe preceding paragraph-to make plain that an employer is liable only if its adverse action against an individualis motivated by the individual’s age.

Paragraphs (a)(1) and (a)(2) do differ in one informative respect. The employer actions targeted by paragraph(a)(1)- i.e., refusing to hire, discharging, or discriminating against-are inherently harmful to the targeted individ-ual. The actions referred to in paragraph (a)(2), on the other hand—i.e., limiting, segregating, or classifying—arefacially neutral. Accordingly, paragraph (a)(2) includes additional language which clarifies that, to give rise to lia-bility, the employer’s action must actually injure someone: The decision to limit, segregate, or classify employeesmust “deprive or tend to deprive [an] individual of employment opportunities or otherwise adversely affect hisstatus as an employee.” That distinction aside, the structures of paragraphs (a)(1) and (a)(2) are otherwise iden-tical. Each paragraph prohibits an employer from taking specified adverse actions against an individual “becauseof such individual’s age.”

The plurality instead reads paragraph (a)(2) to prohibit employer actions that “adversely affect [an individual’s]status as an employe[e] because of such individual’s age.” Under this reading, “because of ··· age” refers to thecause of the adverse effect rather than the motive for the employer’s action. See ante, at 1542. This reading isunpersuasive for two reasons. First, it ignores the obvious parallel between paragraphs (a)(1) and (a)(2) by givingthe phrase “because of such individual’s age” a different meaning in each of the two paragraphs. And second, itignores the drafters’ use of a comma separating the “because of ··· age” clause from the preceding language. Thatcomma makes plain that the “because of ··· age” clause should not be read, as the plurality would have it, tomodify only the “adversely affect” phrase. See, e.g., United States v.Ron Pair Enterprises, Inc., 489 U.S. 235, 241,109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (interpreting statute in light of the drafters’ use of a comma to set aside aparticular phrase from the following language); see also B. Garner, A Dictionary of Modern Legal Usage 101 (2d ed. 1995) (“Generally, the word because should not follow a comma.”) Rather, the “because of ··· age” clauseis set aside to make clear that it modifies the entirety of the preceding paragraph: An employer may not, becauseof an individual’s age, limit, segregate, or classify his employees in a way that harms that individual.

The plurality also argues that its reading is supported by the supposed “incongruity” between paragraph (a)(2)’suse of the plural in referring to the employer’s actions (“limit, segregate, or classify his employees ”) and its useof the singular in the “because of such individual’s age” clause. (Emphases added.) Ante, at 1542, n. 6. Not so.For the reasons just stated, the “because of ··· age” clause modifies all of the preceding language of paragraph(a)(2). That preceding language is phrased in both the plural (insofar as it refers to the employer’s actions relat-ing to employees ) and the singular (insofar as it requires that such action actually harm an individual ). The



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use of the singular in the “ because of ··· age” clause simply makes clear that paragraph (a)(2) forbids an employerto limit, segregate, or classify his employees if that decision is taken because of even one employee’s age andthat individual (alone or together with others) is harmed.

B

While § 4(a)(2) of the ADEA makes it unlawful to intentionally discriminate because of age, § 4(f)(1) clari-fies that “[i]t shall not be unlawful for an employer ··· to take any action otherwise prohibited under sub-sections (a), (b), (c), or (e) of this section ··· where the differentiation is based on reasonable factors otherthan age ····” 29 U.S.C. § 623(f)(1). This “reasonable factors other than age” (RFOA) provision “insure[s] thatemployers [are] permitted to use neutral criteria” other than age, EEOC v.Wyoming, 460 U.S. 226, 232-233,103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), even if this results in a disparate adverse impact on older workers. The pro-vision therefore expresses Congress’ clear intention that employers not be subject to liability absent proof ofintentional age-based discrimination. That policy, in my view, cannot easily be reconciled with the plurality’sexpansive reading of § 4(a)(2).

The plurality however, reasons that the RFOA provision’s language instead confirms that § 4(a) authorizes dis-parate impact claims. If § 4(a) prohibited only intentional discrimination, the argument goes, then the RFOA pro-vision would have no effect because any action based on a factor other than age would not be “ ‘otherwiseprohibited’ ” under § 4(a). See ante, at 1543-1544. Moreover, the plurality says, the RFOA provision applies onlyto employer actions based on reasonable factors other than age-so employers may still be held liable for actionsbased on un reasonable nonage factors. See ante, at 1544.

This argument misconstrues the purpose and effect of the RFOA provision. Discriminatory intent is requiredunder § 4(a), for the reasons discussed above. The role of the RFOA provision is to afford employers an inde-pendent safe harbor from liability. It provides that, where a plaintiff has made out a prima facie case of inten-tional age discrimination under § 4(a)—thus “creat [ing] a presumption that the employer unlawfullydiscriminated against the employee,” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct.1089, 67 L.Ed.2d 207 (1981)—the employer can rebut this case by producing evidence that its action was basedon a reasonable nonage factor. Thus, the RFOA provision codifies a safe harbor analogous to the “legitimate,nondiscriminatory reason” (LNR) justification later recognized in Title VII suits. Ibid.; McDonnell Douglas Corp.v.Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Assuming the McDonnell Douglas framework applies to ADEA suits, see O’Connor v.Consolidated Coin CaterersCorp., 517 U.S. 308, 311, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), this “rebuttal” function of the RFOA provisionis arguably redundant with the judicially established LNR justification. See ante, at 1543-1544. But, at most, thatmerely demonstrates Congress’ abundance of caution in codifying an express statutory exemption from liabilityin the absence of discriminatory intent. See Fort Stewart Schools v. FLRA, 495 U.S. 641, 646, 110 S.Ct. 2043,109 L.Ed.2d 659 (1990) (provisions that, although “technically unnecessary,” are sometimes “inserted out of anabundance of caution-a drafting imprecision venerable enough to have left its mark on legal Latin (ex abundanticautela) ”). It is noteworthy that even after McDonnell Douglas was decided, lower courts continued to relyon the RFOA exemption, in lieu of the LNR justification, as the basis for rebutting a prima facie case of agediscrimination. See, e.g., Krieg v. Paul Revere Life Ins. Co., 718 F.2d 998, 999 (C.A.11 1983) (per curiam);Schwager v. Sun Oil Co. of Pa., 591 F.2d 58, 61 (C.A.10 1979); Bittar v. Air Canada, 512 F.2d 582, 582-583(C.A.5 1975) (per curiam).

In any event, the RFOA provision also plays a distinct (and clearly nonredundant) role in “mixed-motive” cases.In such cases, an adverse action taken in substantial part because of an employee’s age may be “otherwise pro-hibited” by § 4(a). See Desert Palace, Inc. v. Costa, 539 U.S. 90, 93, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003);Price Waterhouse v.Hopkins, 490 U.S. 228, 262-266, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O’CONNOR, J., con-curring in judgment). The RFOA exemption makes clear that such conduct is nevertheless lawful so long as it is“based on” a reasonable factor other than age.

Finally, the RFOA provision’s reference to “reasonable” factors serves only to prevent the employer from gain-ing the benefit of the statutory safe harbor by offering an irrational justification. Reliance on an unreasonablenonage factor would indicate that the employer’s explanation is, in fact, no more than a pretext for intentionaldiscrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d105 (2000); see also Hazen Paper, 507 U.S., at 613-614, 113 S.Ct. 1701.

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II

The legislative history of the ADEA confirms what its text plainly indicates-that Congress never intended the statuteto authorize disparate impact claims. The drafters of the ADEA and the Congress that enacted it understood thatage discrimination was qualitatively different from the kinds of discrimination addressed by Title VII, and that manylegitimate employment practices would have a disparate impact on older workers. Accordingly, Congress deter-mined that the disparate impact problem would best be addressed through noncoercive measures, and that theADEA’s prohibitory provisions should be reserved for combating intentional age-based discrimination.

A

Although Congress rejected proposals to address age discrimination in the Civil Rights Act of 1964, § 715 of thatAct directed the Secretary of Labor to undertake a study of age discrimination in employment and to submit toCongress a report containing “such recommendations for legislation to prevent arbitrary discrimination inemployment because of age as he determines advisable,” 78 Stat. 265. See General Dynamics Land Systems, Inc.v.Cline, 540 U.S. 581, 586-587, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004); EEOC v.Wyoming, supra, at 229, 103 S.Ct.1054. In response, Secretary Willard Wirtz submitted the report that provided the blueprint for the ADEA. SeeReport of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment (June 1965),reprinted in U.S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination inEmployment Act Doc. No. 5 (1981) (hereinafter Wirtz Report or Report). Because the ADEA was modeled on theWirtz Report’s findings and recommendations, the Report provides critical insights into the statute’s meaning. Seegenerally Blumrosen, Interpreting the ADEA: Intent or Impact 14-20, in Age Discrimination in and LitigationEmployment Act: A Compliance Manual for Lawyers and Personnel Practitioners 83-89 (M. Lake ed.1982); seealso General Dynamics, supra, at 587-590, 124 S.Ct. 1236 (relying on the Wirtz Report to interpret the ADEA);EEOC v.Wyoming, 460 U.S., at 230-231, 103 S.Ct. 1054 (discussing the Report’s role in the drafting of the ADEA).

The Wirtz Report reached two conclusions of central relevance to the question presented by this case. First, theReport emphasized that age discrimination is qualitatively different from the types of discrimination prohibitedby Title VII of the Civil Rights Act of 1964 ( i.e., race, color, religion, sex, and national origin discrimination).Most importantly-in stark contrast to the types of discrimination addressed by Title VII-the Report found noevidence that age discrimination resulted from intolerance or animus towards older workers. Rather, age discrim-ination was based primarily upon unfounded assumptions about the relationship between an individual’s ageand her ability to perform a job. Wirtz Report 2. In addition, whereas ability is nearly always completely unrelated tothe characteristics protected by Title VII, the Report found that, in some cases, “there is in fact a relationshipbetween [an individual’s] age and his ability to perform the job.” Ibid. (emphasis deleted).

Second, the Wirtz Report drew a sharp distinction between “ ‘arbitrary discrimination’ ” (which the Report clearlyequates with disparate treatment) and circumstances or practices having a disparate impact on older workers.See id., at 2, 21-22. The Report defined “arbitrary” discrimination as adverse treatment of older workers “becauseof assumptions about the effect of age on their ability to do a job when there is in fact no basis for theseassumptions.” Id., at 2 (emphasis in original). While the “most obvious kind” of arbitrary discrimination is thesetting of unjustified maximum age limits for employment, id., at 6, naturally the Report’s definition encompassesa broad range of disparate treatment.

The Report distinguished such “arbitrary” ( i.e., intentional and unfounded) discrimination from two other phe-nomena. One involves differentiation of employees based on a genuine relationship between age and ability toperform a job. See id., at 2. In this connection, the Report examined “circumstances which unquestionably affectolder workers more strongly, as a group, than they do younger workers,” including questions of health, educa-tional attainment, and technological change. Id., at 11-14.FN1 In addition, the Report assessed “institutional arrange-ments”—such as seniority rules, workers’ compensation laws, and pension plans—which, though intended tobenefit older workers, might actually make employers less likely to hire or retain them. Id., at 2, 15-17.

FN1. It is in this connection that the Report refers to formal employment standards requiring a high schooldiploma. See Wirtz Report 3. The Wirtz Report did say that such a requirement would be “unfair” if an olderworker’s years of experience had given him an equivalent education. Ibid. But the plurality is mistaken to findin this statement a congressional “goal” of eliminating job requirements with a disparate impact on older work-ers. See ante, at 1541, n. 5. Rather, the Wirtz Report discussed the diploma requirement in the context of a broaderdiscussion of the effects of “wholly impersonal forces-most of them part of what is properly, if sometimes too



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casually, called ‘progress.’ ” Wirtz Report 3. These forces included “the pace of changing technology, changingjobs, changing educational requirements, and changing personnel practices,” which “increase[d] the need forspecial efforts if older workers’ employment prospects are to improve significantly.” Ibid. (emphasis added); seealso id., at 11-15 (discussing the educational attainments of older workers, together with health and technologi-cal change, in a section entitled “The Necessary Recognition of Forces of Circumstance”). The Report recom-mended that such forces be addressed through noncoercive instead of prohibitory measures, and it specificallyfocused on the need for educational opportunities for older workers. See id., at 23-25.

The Report specifically recommended legislative action to prohibit “arbitrary discrimination,” i.e., disparatetreatment. Id., at 21-22. In sharp contrast, it recommended that the other two types of “discrimination”—bothinvolving factors or practices having a disparate impact on older workers—be addressed through noncoercivemeasures: programs to increase the availability of employment; continuing education; and adjustment ofpension systems, workers’ compensation, and other institutional arrangements. Id., at 22-25. These recommen-dations found direct expression in the ADEA, which was drafted at Congress’ command that the Secretary ofLabor make “specific legislative recommendations for implementing the [Wirtz Report’s] conclusions,” Fair LaborStandards Amendments of 1966, § 606, 80 Stat. 845. See also General Dynamics, 540 U.S., at 589, 124 S.Ct. 1236(“[T]he ADEA ··· begins with statements of purpose and findings that mirror the Wirtz Report.”)

B

The ADEA’s structure confirms Congress’ determination to prohibit only “arbitrary” discrimination ( i.e., disparatetreatment based on unfounded assumptions), while addressing practices with a disparate adverse impact on olderworkers through noncoercive measures. Section 2-which sets forth the findings and purposes of the statute-drawsa clear distinction between “the setting of arbitrary age limits regardless of potential for job performance” and “cer-tain otherwise desirable practices [that] may work to the disadvantage of older persons.” 29 U.S.C. § 621(a)(2). Inresponse to these problems, § 2 identifies three purposes of the ADEA: “[1] to promote employment of older personsbased on their ability rather than age; [2] to prohibit arbitrary age discrimination in employment; [and 3] to helpemployers and workers find ways of meeting problems arising from the impact of age on employment.” § 621(b).

Each of these three purposes corresponds to one of the three substantive statutory sections that follow. Section 3seeks to “promote employment of older persons” by directing the Secretary of Labor to undertake a program ofresearch and education related to “the needs and abilities of older workers, and their potentials for continuedemployment and contribution to the economy.” § 622(a). Section 4, which contains the ADEA’s core prohibitions,corresponds to the second purpose: to “prohibit arbitrary age discrimination in employment.” Finally, § 5 addressesthe third statutory purpose by requiring the Secretary of Labor to undertake a study of “institutional and otherarrangements giving rise to involuntary retirement” and to submit any resulting findings and legislative recommen-dations to Congress. § 624(a)(1).

Section 4-including § 4(a)(2)-must be read in light of the express statutory purpose the provision was intended toeffect: the prohibition of “arbitrary age discrimination in employment.” § 621(b). As the legislative history makesplain, “arbitrary” age discrimination had a very specific meaning for the ADEA’s drafters. It meant disparate treatmentof older workers, predominantly because of unfounded assumptions about the relationship between age andability. See supra, at 1553-1554. Again, such intentional discrimination was clearly distinguished from circum-stances and practices merely having a disparate impact on older workers, which—as ADEA §§ 2, 3, and 5 makeclear—Congress intended to address through research, education, and possible future legislative action.

C

In addition to this affirmative evidence of congressional intent, I find it telling that the legislative history is devoidof any discussion of disparate impact claims or of the complicated issues such claims raise in the ADEA context.See Gold, Disparate Impact Under the Age Discrimination in Employment Act of 1967, 25 Berkeley J. Emp. &Lab. L. 1, 40 (2004). At the time the ADEA was enacted, the predominant focus of antidiscrimination law was onintentional discrimination; the concept of disparate impact liability, by contrast, was quite novel. See, e.g., Gold,Griggs ‘ Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of EmploymentDiscrimination and a Recommendation for Reform, 7 Indus. Rel. L.J. 429, 518-520 (1985); Blumrosen, Strangersin Paradise: Griggs v.Duke Power Co. and the Concept of Employment Discrimination, 71 Mich. L.Rev. 59, 69-71(1972-1973). Had Congress intended to inaugurate disparate impact liability in the ADEA, one would expect tofind some indication of that intent in the text and the legislative history. There is none.

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D

Congress’ decision not to authorize disparate impact claims is understandable in light of the questionable utilityof such claims in the age-discrimination context. No one would argue that older workers have suffered disad-vantages as a result of entrenched historical patterns of discrimination, like racial minorities have. SeeMassachusetts Bd.of Retirement v.Murgia, 427 U.S. 307, 313-314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam);see also Wirtz Report 5-6. Accordingly, disparate impact liability under the ADEA cannot be justified, and is not nec-essary, as a means of redressing the cumulative results of past discrimination. Cf. Griggs, 401 U.S., at 430, 91 S.Ct. 849(reasoning that disparate impact liability is necessary under Title VII to prevent perpetuation of the results of pastracial discrimination).

Moreover, the Wirtz Report correctly concluded that-unlike the classifications protected by Title VII-there often isa correlation between an individual’s age and her ability to perform a job. Wirtz Report 2, 11-15. That is to beexpected, for “physical ability generally declines with age,” Murgia, supra, at 315, 96 S.Ct. 2562, and in some cases,so does mental capacity, see Gregory v.Ashcroft, 501 U.S. 452, 472, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Perhapsmore importantly, advances in technology and increasing access to formal education often leave older workers ata competitive disadvantage vis-á-vis younger workers. Wirtz Report 11-15. Beyond these performance-affecting factors, there is also the fact that many employment benefits, such as salary, vacation time, and so forth, increaseas an employee gains experience and seniority. See, e.g., Finnegan v.Trans World Airlines, Inc., 967 F.2d 1161, 1164(C.A.7 1992) (“[V]irtually all elements of a standard compensation package are positively correlated with age.”)Accordingly, many employer decisions that are intended to cut costs or respond to market forces will likely havea disproportionate effect on older workers. Given the myriad ways in which legitimate business practices can havea disparate impact on older workers, it is hardly surprising that Congress declined to subject employers to civil lia-bility based solely on such effects.

III

The plurality and Justice SCALIA offer two principal arguments in favor of their reading of the statute: that therelevant provision of the ADEA should be read in pari materia with the parallel provision of Title VII, and thatwe should give interpretive weight or deference to agency statements relating to disparate impact liability. I findneither argument persuasive.

A

The language of the ADEA’s prohibitory provisions was modeled on, and is nearly identical to, parallel provisions inTitle VII. See McKennon v.Nashville Banner Publishing Co., 513 U.S. 352, 357, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995);Lorillard v.Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). Because Griggs, supra, held that Title VII’s§ 703(a)(2) permits disparate impact claims, the plurality concludes that we should read § 4(a)(2) of the ADEAsimilarly. Ante, at 1541-1544.

Obviously, this argument would be a great deal more convincing had Griggs been decided before the ADEA wasenacted. In that case, we could safely assume that Congress had notice (and therefore intended) that the languageat issue here would be read to authorize disparate impact claims. See, e.g., Department of Energy v.Ohio, 503 U.S.607, 626, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992); Holmes v.Securities Investor Protection Corporation, 503 U.S. 258,268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). But Griggs was decided four years after the ADEA’s enactment, andthere is no reason to suppose that Congress in 1967 could have foreseen the interpretation of Title VII that was tocome. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 523, n. 9, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994); see also supra,at 1544 (discussing novelty of disparate impact theory at the time of the ADEA’s enactment).

To be sure, where two statutes use similar language we generally take this as “a strong indication that [they]should be interpreted pari passu.” Northcross v.Board of Ed.of Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct.2201, 37 L.Ed.2d 48 (1973) (per curiam). But this is not a rigid or absolute rule, and it “ ‘readily yields’ ” to otherindicia of congressional intent. General Dynamics, 540 U.S., at 595, 124 S.Ct. 1236 (quoting Atlantic Cleaners &Dyers, Inc. v.United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932)). Indeed, “ ‘the meaning [of thesame words] well may vary to meet the purposes of the law.’ ” United States v.Cleveland Indians Baseball Co.,532 U.S. 200, 213, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001) (alteration in original) (quoting Atlantic Cleaners &Dyers, supra, at 433, 52 S.Ct. 607). Accordingly, we have not hesitated to give a different reading to the samelanguage-whether appearing in separate statutes or in separate provisions of the same statute-if there is strong



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evidence that Congress did not intend the language to be used uniformly. See, e.g., General Dynamics, supra,at 595-597, 124 S.Ct. 1236 (“age” has different meaning where used in different parts of the ADEA); ClevelandIndians, supra, at 213, 121 S.Ct. 1433 (“wages paid” has different meanings in different provisions of Title 26U.S.C.); Robinson v. Shell Oil Co., 519 U.S. 337, 343-344, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“employee”has different meanings in different parts of Title VII); Fogerty, supra, at 522-525, 114 S.Ct. 1023 (Copyright Act’sattorney’s fees provision has different meaning than the analogous provision in Title VII, despite their “virtuallyidentical language.”) Such is the case here.

First, there are significant textual differences between Title VII and the ADEA that indicate differences incongressional intent. Most importantly, whereas the ADEA’s RFOA provision protects employers from lia-bility for any actions not motivated by age, see supra, at 1551-1552, Title VII lacks any similar provision. Inaddition, the ADEA’s structure demonstrates Congress’ intent to combat intentional discrimination through§ 4’s prohibitions while addressing employment practices having a disparate impact on older workersthrough independent noncoercive mechanisms. See supra, at 1553-1554. There is no analogy in the struc-ture of Title VII. Furthermore, as the Congresses that adopted both Title VII and the ADEA clearly recog-nized, the two statutes were intended to address qualitatively different kinds of discrimination. See supra,at 1552-1553. Disparate impact liability may have a legitimate role in combating the types of discriminationaddressed by Title VII, but the nature of aging and of age discrimination makes such liability inappropriatefor the ADEA. See supra, at 1555.

Finally, nothing in the Court’s decision in Griggs itself provides any reason to extend its holding to the ADEA.As the plurality tacitly acknowledges, ante, at 1542, the decision in Griggs was not based on any analysis of Title VII’sactual language. Rather, the ratio decidendi was the statute’s perceived purpose, i.e.,

“to achieve equality of employment opportunities and remove barriers that have operated in the past to favoran identifiable group of white employees over other employees. Under the Act, practices, procedures, or testsneutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ thestatus quo of prior discriminatory employment practices.” 401 U.S., at 429-430, 91 S.Ct. 849.

In other words, the Court in Griggs reasoned that disparate impact liability was necessary to achieve Title VII’sostensible goal of eliminating the cumulative effects of historical racial discrimination. However, that rationalefinds no parallel in the ADEA context, see Murgia, 427 U.S., at 313-314, 96 S.Ct. 2562, and it therefore shouldnot control our decision here.

Even venerable canons of construction must bow, in an appropriate case, to compelling evidence of congres-sional intent. In my judgment, the significant differences between Title VII and the ADEA are more than suffi-cient to overcome the default presumption that similar language is to be read similarly. See Fogerty, supra, at523-524, 114 S.Ct. 1023 (concluding that the “normal indication” that similar language should be read similarlyis “overborne” by differences between the legislative history and purposes of two statutes).

B

The plurality asserts that the agencies charged with the ADEA’s administration “have consistently interpretedthe [statute] to authorize relief on a disparate-impact theory.” Ante, at 1544. In support of this claim, the plu-rality describes a 1968 interpretive bulletin issued by the Department of Labor as “permitt[ing]” disparateimpact claims. Ibid. (citing 29 CFR § 860.103(f)(1)(i) (1970)). And the plurality cites, without comment, anEqual Employment Opportunities Commission (EEOC) policy statement construing the RFOA provision.Ante, at 1544 (citing 29 CFR § 1625.7 (2004)). It is unclear what interpretive value the plurality means to assign to these agency statements. But Justice SCALIA, at least, thinks that the EEOC statement is entitledto deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct.2778, 81 L.Ed.2d 694 (1984), and that “that is sufficient to resolve this case.” Ante, at 1549 (opinion concur-ring in part and concurring in judgment). I disagree and, for the reasons that follow, would give no weightto the statements in question.

The 1968 Labor Department bulletin to which the plurality alludes was intended to “provide ‘a practical guide to employers and employees as to how the office representing the public interest in its enforcement willseek to apply it.’ ” 29 CFR § 860.1 (1970) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 138, 65 S.Ct. 161, 89L.Ed. 124 (1944)). In discussing the RFOA provision, the bulletin states that “physical fitness requirements” and

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“[e]valuation factors such as quantity or quality of production, or educational level” can qualify as reasonablenonage factors, so long as they have a valid relationship to job qualifications and are uniformly applied. §§ 860.103(f)(1), (2). But the bulletin does not construe the ADEA’s prohibitory provisions, nor does it stateor imply that § 4(a) authorizes disparate impact claims. Rather, it establishes “a nonexclusive objective test foremployers to use in determining whether they could be certain of qualifying for the” RFOA exemption. PublicEmployees Retirement System of Ohio v. Betts, 492 U.S. 158, 172, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989) (dis-cussing 1968 bulletin’s interpretation of the § 4(f)(2) exemption). Moreover, the very same bulletin statesunequivocally that “[t]he clear purpose [of the ADEA] is to insure that age, within the limits prescribed by theAct, is not a determining factor in making any decision regarding the hiring, dismissal, promotion or anyother term condition or privilege of employment of an individual.” § 860.103(c) (emphasis added). That lan-guage is all about discriminatory intent.

The EEOC statement cited by the plurality and relied upon by Justice SCALIA is equally unhelpful. This “inter-pretative rule or policy statement,” promulgated in 1981, superseded the 1968 Labor Department bulletin afterresponsibility for enforcing the ADEA was transferred from Labor to the EEOC. See 46 Fed.Reg. 47724 (1981). Itstates, in relevant part:

“[W]hen an employment practice, including a test, is claimed as a basis for different treatment of employees orapplicants for employment on the grounds that it is a ‘factor other than’ age, and such a practice has anadverse impact on individuals within the protected age group, it can only be justified as a business neces-sity.” 29 CFR § 1625.7(d) (2004).

Like the 1968 bulletin it replaces, this statement merely spells out the agency’s view, for purposes of its enforce-ment policy, of what an employer must do to be certain of gaining the safety of the RFOA haven. It saysnothing about whether disparate impact claims are authorized by the ADEA.

For Justice SCALIA, “[t]his is an absolutely classic case for deference to agency interpretation.” Ante, at 1546 (opin-ion concurring in part and concurring in judgment). I disagree. Under Chevron, we will defer to a reasonableagency interpretation of ambiguous statutory language, see 467 U.S., at 843-844, 104 S.Ct. 2778, provided thatthe interpretation has the requisite “force of law,” Christensen v.Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655,146 L.Ed.2d 621 (2000). The rationale for such deference is that Congress has explicitly or implicitly delegatedto the agency responsible for administering a statute the authority to choose among permissible constructions ofambiguous statutory text. See Chevron, supra, at 844, 104 S.Ct. 2778. The question now before us is not what ittakes to qualify for the RFOA exemption, but rather whether § 4(a)(2) of the ADEA authorizes disparate impactclaims. But the EEOC statement does not purport to interpret the language of § 4(a) at all. Quite simply, theagency has not actually exercised its delegated authority to resolve any ambiguity in the relevant provision’s text,much less done so in a reasonable or persuasive manner. As to the specific question presented, therefore, theregulation is not entitled to any deference. See John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank,510 U.S. 86, 106-109, and n. 17, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993); see also SEC v. Sloan, 436 U.S. 103,117-118, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978); Adamo Wrecking Co. v. United States, 434 U.S. 275, 287-289, andn. 5, 98 S.Ct. 566, 54 L.Ed.2d 538 (1978).FN2

FN2. Because the EEOC regulation does not actually interpret the text at issue, we need not address the degreeof deference to which the regulation would otherwise be entitled. Cf. General Dynamics Land Systems, Inc. v.Cline, 540 U.S. 581, 600, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) (declining to address whether EEOC’s regula-tions interpreting the ADEA are entitled to Chevron deference).

Justice SCALIA’s attempt to link the EEOC’s RFOA regulation to § 4(a)(2) is premised on a dubious chain ofinferences that, in my view, highlights the hazards of his approach. Because the RFOA provision is “rele-vant only as a response to employer actions ‘otherwise prohibited’ by the ADEA,” he reasons, the “unavoidablemeaning” of the EEOC statement is that the agency “interprets the ADEA to prohibit employer actions thathave an ‘adverse impact on individuals within the protected age group.’ ” Ante, at 1548 (opinion concur-ring in part and concurring in judgment) (quoting 29 CFR § 1625.7(d) (2004)). But, of course, disparate treatmentclearly has an “adverse impact on individuals within the protected age group,” ibid., and Justice SCALIA’sreading of the EEOC’s rule is hardly “unavoidable.” The regulation says only that if an employer wants torely on a practice-say, a physical fitness test-as the basis for an exemption from liability, and that test



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adversely affects older workers, the employer can be sure of qualifying for the exemption only if the test issufficiently job related. Such a limitation makes sense in disparate treatment cases. A test that harms olderworkers and is unrelated to the job may be a pretext for—or even a means of effectuating—intentional dis-crimination. See supra, at 1551—1552. Justice SCALIA completes his analytical chain by inferring that theEEOC regulation must be read to interpret § 4(a)(2) to allow disparate impact claims because that is the only provision of the ADEA that could “conceivably” be so interpreted. Ante, at 1548 But the supportfor that inference is doubtful, to say the least. The regulation specifically refers to employment practicesclaimed as a basis for “different treatment of employees or applicants for employment,” 29 CFR § 1625.7(d)(2004) (emphasis added). Section 4(a)(2), of course, does not apply to “applicants for employment” at all—it is only § 4(a)(1) that protects this group. See 29 U.S.C. § 623(a). That suggests that the EEOC musthave read the RFOA to provide a defense against claims under § 4(a)(1)-which unquestionably permits onlydisparate treatment claims, see supra, at 1549.

This discussion serves to illustrate why it makes little sense to attribute to the agency a construction of the rele-vant statutory text that the agency itself has not actually articulated so that we can then “defer” to that reading.Such an approach is particularly troubling where applied to a question as weighty as whether a statute does ordoes not subject employers to liability absent discriminatory intent. This is not, in my view, what Chevroncontemplated.

As an interpretation of the RFOA provision, moreover, the EEOC regulation is both unreasonable on its faceand directly at odds with the Court’s holding in today’s case. It says that the RFOA exemption is availableonly if the employer’s practice is justified by a “business necessity.” But the Court has rejected that readingof the RFOA provision, and rightly so: There may be many “reasonable” means by which an employer canadvance its goals, and a given nonage factor can certainly be “reasonable” without being necessary. Ante,at 1546; see also Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 419, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985)(distinguishing “ ‘reasonable necessity’ ” standard from “ ‘reasonableness’ ”). Of course, it is elementary that“no deference is due to agency interpretations at odds with the plain language of the statute itself.” Betts,492 U.S., at 171, 109 S.Ct. 2854. The agency clearly misread the RFOA provision it was attempting to con-strue. That error is not necessarily dispositive of the disparate impact question. But I think it highlights theimprovidence of giving weight (let alone deferring) to the regulation’s purported assumption that anentirely different provision of the statute, which is not even the subject of the regulation, authorizes dis-parate impact claims. In my view, we should simply acknowledge that this regulation is of no help inanswering the question presented.

IV

Although I would not read the ADEA to authorize disparate impact claims, I agree with the Court that, ifsuch claims are allowed, they are strictly circumscribed by the RFOA exemption. See ante, at 1545-1546.That exemption requires only that the challenged employment practice be based on a “reasonable” nonagefactor; that is, one that is rationally related to some legitimate business objective. I also agree with the Court,ante, at 1544, that, if disparate impact claims are to be permitted under the ADEA, they are governed bythe standards set forth in our decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). That means, as the Court holds, ante, at 1545, that “a plaintiff must demonstratethat it is the application of a specific or particular employment practice that has created the disparateimpact under attack,” Wards Cove, supra, at 657, 109 S.Ct. 2115 (emphasis added); see also Watson v. FortWorth Bank & Trust, 487 U.S. 977, 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (opinion of O’CONNOR, J.).It also means that once the employer has produced evidence that its action was based on a reasonablenonage factor, the plaintiff bears the burden of disproving this assertion. See Wards Cove, supra, at 659-660,109 S.Ct. 2115; see also Watson, supra, at 997, 108 S.Ct. 2777 (opinion of O’CONNOR, J.). Even if petition-ers’ disparate impact claim were cognizable under the ADEA, that claim clearly would fail in light of theserequirements.

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Chapter 10

The People of the State of Illinois v.Oehrke, 369 Ill. App. 3d 63, 860 N.E. 2d 416 (2006).

Crawford v.Washington, 541 U.S. 36, 53-54, 124 S.CT. 1354, 1366, 158 L.Ed.2d 177, 194-95 (2004)

Estate of Laura Marie Lowrie, Lynelle Goodreau v. Sheldon Lawrence Lowrie, as Trustee, 118 Cal. App. 4th 220,12 Cal. Rptr. 3d 828, (2004).

Santucci et al. v. Citizens Bank of Rhode Island, 799 A.2d 254 (R.I. 2002).

799 A.2d 254

Supreme Court of Rhode Island.Robert M. SANTUCCI et al.

v.CITIZENS BANK OF RHODE ISLAND.

No. 2001-163-Appeal.June 4, 2002.

Elderly account holder’s guardians sued bank, alleging breach of statutory duty to report exploitation of elderly,negligence, breach of contract, and breach of fiduciary duty. The Superior Court, Providence County, Hurst, J.,dismissed statutory claim and granted bank’s motion for summary judgment as to other counts. Guardiansappealed. The Supreme Court held that: (1) statute creating a duty to report abuse of elderly persons did notgive rise to a new duty of care flowing from bank to elderly account holder or her guardians; (2) guardians failedto set forth specific facts to show that bank employee manual established a duty on part of bank to preventaccount holder from withdrawing funds; (3) rules that governed certificate of deposit account give rise to a dutyon part of bank; and (4) guardians failed to establish existence of a fiduciary relationship between bank andaccount holder.Affirmed; appeal dismissed.

Stephen A. Rodio, Providence, for Plaintiff.Randall L. Souza, Ian C. Ridlon, Providence, for Defendant.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

OPINION

PER CURIAM.Does a bank owe a duty of care to an elderly depositor, to investigate and report an alleged suspected financialexploitation? The plaintiffs, Robert M. Santucci and Rose J. Volpe (Volpe) (collectively, plaintiffs), as co-guardiansof their mother, Assunta Santucci (Santucci), have appealed a summary judgment in favor of the defendant,Citizens Bank of Rhode Island (Citizens or defendant). This case came before the Supreme Court for oral argu-ment on May 14, 2002, pursuant to an order directing the parties to show cause why the issues raised in thisappeal should not be summarily decided. After examining the record and the memoranda of the parties, andafter hearing the oral arguments of counsel, we are of the opinion that cause has not been shown, and we sum-marily affirm the judgment of the Superior Court.

In December 1995, Santucci opened an eighteen-month certificate of deposit account at Citizens, with an initialbalance of approximately $39,000. Volpe stated in an affidavit that Santucci was a long-term customer at Citizens’Mineral Spring Avenue branch and was well-known by bank employees. Shortly after opening the account,Santucci began to withdraw funds averaging about $300 per month. According to Volpe, Santucci’s physical andmental health began to rapidly deteriorate in June 1996. Beginning in August 1996, Santucci began making morefrequent and larger withdrawals from her Citizens account. In August 1996, she withdrew $2,400, and inSeptember, she withdrew $3,468.58. Volpe stated that this pattern continued until April 1997, by which time



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Santucci had withdrawn $27,012.34 from her account. Volpe also indicated that a man named David Baccari(Baccari), who had a history of drug abuse, was accompanying her mother to the bank. According to Volpe, allthe money withdrawn by Santucci was stolen by Baccari. In May 1997, Volpe and her brother were appointedco-guardians of their mother, who was declared incompetent by the Providence Probate Court.

The plaintiffs filed a four-count complaint against Citizens in June 1998, alleging a breach of Citizens’ statutoryduty to report exploitation of the elderly pursuant to G.L.1956 § 42-66-8 FN1 (count 1); negligence (count 2);breach of contract (count 3); and breach of fiduciary duty (count 4). Count 1 of plaintiffs’ complaint was dis-missed pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. The defendant’s subsequentmotion for summary judgment with respect to the remaining counts was granted in February 2001. Final judg-ment was entered, and plaintiffs appealed.

FN1. General Laws 1956 § 42-66-8 provides:

“Any person who has reasonable cause to believe that any person sixty (60) years of age or older has beenabused, neglected, exploited, or abandoned shall make an immediate report to the director of the depart-ment of elderly affairs or his or her designee. Any person who fails to make the report shall be punished bya fine of not more than one thousand dollars ($1,000) or shall be imprisoned for a term of not more thanone year, or both.”

This Court reviews the granting of a summary judgment de novo, applying the same standard as the motion jus-tice. Nonnenmacher v.City of Warwick, 722 A.2d 1199, 1202 (R.I.1999); McKinnon v.Rhode Island Hospital TrustNational Bank, 713 A.2d 245, 247 (R.I.1998). We shall affirm the judgment if, “after reviewing the admissible evi-dence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material factexists and that the moving party is entitled to judgment as a matter of law.” McKinnon, 713 A.2d at 247 (quot-ing Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I.1996)).

On appeal, plaintiffs did not challenge the dismissal of count 1, conceding that § 42-66-8 did not provide for aprivate right of action, but they argued that the motion justice erred in granting summary judgment with respectto their remaining counts of negligence, breach of contract, and breach of fiduciary duty. We address each ofthese counts.

It is well settled that “[a] defendant cannot be liable under a negligence theory unless the defendant owes a dutyto the plaintiff.” Ferreira v. Strack, 636 A.2d 682, 685 (R.I.1994) (citing Rodrigues v. Miriam Hospital, 623 A.2d456, 460 (R.I.1993) and Ryan v. State Department of Transportation, 420 A.2d 841, 843 (R.I.1980)). Whether aduty exists in a particular case is a question of law for the trial or motion justice. Ohms v. State Department ofTransportation, 764 A.2d 725, 727 (R.I.2001) (per curiam); Ferreira, 636 A.2d at 685; Banks v.Bowen’s LandingCorp., 522 A.2d 1222, 1224 (R.I.1987). In Banks, this Court articulated several factors that may be considered indetermining whether a duty exists, including the foreseeability and likelihood of the injury to the plaintiff, theconnection between the defendant’s conduct and the injury suffered, the policy of preventing future harm, andthe consequences to the defendant and to the community of imposing a duty of care on the defendant withresulting liability for breach. Banks, 522 A.2d at 1225. In the instant case, the motion justice determined thatplaintiffs failed to articulate specific facts that would trigger a duty of care. We agree.

The plaintiffs offered two principal theories to support their assertion that Citizens owed a duty to Santucci. First,although plaintiffs admitted that § 42-66-8 did not create a private right of action, plaintiffs argued that the statutecreated a legal duty to report financial exploitation of the elderly, a violation of which constitutes prima facieevidence of negligence. For support, plaintiffs cited Errico v.LaMountain, 713 A.2d 791 (R.I.1998), in which theplaintiff-tenant sued the defendant-landlords to recover for injuries suffered when a faulty railing causedthe plaintiff to fall from the second-floor balcony of her rented apartment. In that case, however, we concludedthat the Residential Landlord and Tenant Act, G.L.1956 chapter 18 of title 34, “created a duty that the [defendants]owed to [the plaintiff] by operation of law.” Errico, 713 A.2d at 794.

In contrast, § 42-66-8 contains no indication that its drafters intended to alter the preexisting legal relationshipbetween bank and depositor. In general, “[u]nless it is specially agreed otherwise, a banking institution and itsdepositors stand in the debtor and creditor relationship,” Griffin v.Centreville Savings Bank, 93 R.I. 47, 52, 171A.2d 204, 206-07 (1961) (citing, inter alia, R.H.Kimball, Inc.v.Rhode Island Hospital National Bank, 72 R.I. 144,153, 48 A.2d 420, 426 (1946)), and “[t]he rights and obligations of each with respect to the fund on deposit [are]

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governed by the terms of the contract which they enter into at the time of the establishment of the relationship.”Griffin, 93 R.I. at 52, 171 A.2d at 207. Therefore, we reject plaintiffs’ argument that § 42-66-8 gave rise to a newduty of care flowing from Citizens to plaintiffs that could form the basis of a private action for negligence.

Second, plaintiffs attempted to establish a duty by reference to a document entitled “Bank Reporting Project:Employee Training Manual” (manual). The manual apparently was written by staff members at the Office of theAttorney General, with the assistance of the Department of Elderly Affairs, the Department of BusinessRegulation, and the Rhode Island Bankers Association. The plaintiffs argued that Citizens was a participant in theproject and should be held to the standards contained in the manual. However, there was no showing by plain-tiffs that Santucci was abused or neglected or exploited, and the bank failed to act. The motion justice rejectedplaintiffs’ argument that the manual evidenced a duty of care, finding instead that there was a failure of proofon the part of plaintiffs. We agree with the motion justice.

It is well established that a litigant opposing a motion for summary judgment has the burden of proving by com-petent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denialsin the pleadings, mere conclusions, or mere legal opinions. Rotelli, 686 A.2d at 93; Accent Store Design, Inc. v.Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996). A letter from Citizens’ counsel to plaintiffs’ attorney allegedthat the manual had never been finalized or officially adopted by the Rhode Island Bankers Association. Counselalso stated that Citizens received a copy of this manual after the commencement of this litigation and did nothave it or use it at the time of the events alleged in the complaint. Moreover, Linda Connors, the head bank tellerat Citizens’ Mineral Spring Avenue branch, stated in her deposition that she was not familiar with the manual. Atthe conclusion of the hearing on the summary judgment motion, the motion justice gave plaintiffs an opportu-nity to amend their pleadings to allege that defendant violated an industry standard. The plaintiffs apparently didnot amend their pleadings and filed no further documentation opposing the motion. We therefore conclude thatplaintiffs failed to set forth specific facts to show that the employee manual they introduced as evidence consti-tuted an industry standard, sufficient to establish a duty on the part of defendant.

The plaintiffs next argued that Citizens breached its contract with Santucci by releasing funds in her account. Intheir complaint, plaintiffs contended that the funds were released without Santucci’s authorization. There was noevidence, however, that Santucci did not request the withdrawals or that Citizens released funds to her after shewas declared to be incompetent. The crux of plaintiffs’ argument is that Citizens had the right to refuse Santucci’swithdrawal requests and that the bank was negligent when it did not exercise this right.FN2 We disagree.

FN2. At the hearing on the motion for summary judgment, plaintiffs’ attorney agreed that counts 2 and 3 bothinvolved the same act of negligence and could be treated together.

Under the rules that governed Santucci’s certificate of deposit account, the account holder could make with-drawals before the maturity date only if the bank agreed to the withdrawal. But the document did not specifythe circumstances under which the bank could refuse to allow an account holder to withdraw his or her funds,nor did it require that the bank inquire into the reasons for the withdrawal. In these circumstances, we are ofthe opinion that the contract between Citizens and Santucci did not give rise to the duty advocated by plaintiffs.

Last, the plaintiffs argued that the motion justice erred in failing to find that a fiduciary relationship existedbetween Santucci and Citizens. The plaintiffs contended that the question of whether a fiduciary relationshipexists is a fact-intensive inquiry that depends on various factors, “including the reliance of one party upon theother, the relationship of the parties prior to the incidents complained of, the relative business capacities or lackthereof between the parties, and the readiness of one party to follow the other’s guidance in complicated trans-actions.” Simpson v.Dailey, 496 A.2d 126, 129 (R.I.1985). Noting that, in general, “a depositor relationship doesnot in and of itself give rise to a fiduciary relationship,” the motion justice found that the plaintiffs failed to pres-ent facts “to demonstrate [that Santucci] was relying on [Citizens] as a fiduciary.” On appeal, the plaintiffs chal-lenged this conclusion, but did not set forth any specific facts to support their assertion that Citizens owed afiduciary duty to Santucci. Again, parties opposing a summary judgment motion may not rely upon mere allega-tions or denials in the pleadings. “Rather, by affidavits or otherwise they have an affirmative duty to set forthspecific facts showing that there is a genuine issue of material fact.” Bourg v.Bristol Boat Co., 705 A.2d 969, 971(R.I.1998). We are of the opinion that the plaintiffs failed to satisfy this burden.

Therefore, we deny and dismiss the plaintiffs’ appeal, and we affirm the judgment of the Superior Court, to whichwe return the papers in the case.



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Chapter 11

Bower v.Matula, 943 S.W. 2d 536 (1997)

Dolman v.Dolman, 586 S.W. 2d 606 (1979)

Troxel v.Granville, 530 U.S.57, 120 S.Ct.2054, 147 L.Ed. 2d 46 (2000)

Succession of Reiss, 25 L.R.A. 798 (1894)

943 S.W.2d 536

Court of Appeals of Texas,Houston (1st Dist.).

Stephen BOWERS, and Wife, Martha Bowers, Appellants,v.

David A. MATULA, and Wife, Kathleen B. Matula, Appellees.No. 01-96-01099-CV.

April 3, 1997.

Maternal grandparents brought action seeking access to grandchild. After termination of parents’ rights as tograndchild and grant of adoption in paternal grandparents’ separate action, paternal grandparents moved to dismissfor lack of standing. The 300th District Court, Brazoria County, Ogden Bass, J., granted motion. On appeal, theCourt of Appeals, Taft, J., held that maternal grandparents had standing to request access to grandchild whenthey filed their petition requesting access, and subsequent termination of parents’ rights as to grandchild andgrant of adoption did not deprive maternal grandparents of standing in present action.Reversed and remanded.

D. Channing Bradshaw, Houston, for appellants.Joseph Hunter, Houston, for appellees.

Before TAFT, MIRABAL and WILSON, JJ.

OPINION

TAFT, Justice.

The Texas Family Code requires existing parental rights before grandparents can request court-ordered accessto their grandchildren. In this case, maternal grandparents filed suit seeking access to a grandchild before theparents’ rights were terminated. When that termination occurred, paternal grandparents filed a motion to dismissfor lack of standing, which the trial court granted. We hold that standing is determined at the time suit is filed.Standing was not revoked by the termination of parental rights. We reverse and remand.

Facts

The parties involved in this suit include: (1) the subject of this case, the grandchild, John Andrew Rivera, Jr.,whose name has been changed to John Andrew Rivera Matula by the decree of termination and adoption (thegrandchild); (2) his parents, Angelic Mimi Bowers Rivera and John Andrew Rivera; (3) appellants, Stephen andMartha Bowers, maternal grandparents (the Bowers); and (4) appellees, David A. Matula and Kathleen B. Matula,paternal grandparents (the Matulas).

A little more than a year after the grandchild was born, the Matulas were appointed sole managing conservatorsof the child. The grandchild’s parents divorced a few months later, maintaining their status as possessoryconservators. Two years passed before the Bowers filed this lawsuit requesting reasonable access to the grandchild.The Matulas answered, and on the same date, filed a separate lawsuit for termination of the parents’ rights andfor adoption. No notice was given to the Bowers, nor was it required. See TEX.FAM.CODE ANN. § 102.009(Vernon 1996). The court granted the termination and adoption. Then the Matulas filed a motion to dismiss thislawsuit, contending the Bowers did not have standing. The trial court granted the motion to dismiss.

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The dismissal order provided that the original petition for grandparent access was dismissed. The trial court’sconclusion of law stated, “The maternal grandparents no longer have the right to seek grandparent access sub-sequent to the termination of their daughters [sic] parental rights by virtue of Judge Mills’ Order.”

No Loss of Standing

In the Bowers’ sole point of error, they contend the trial court erred in granting the motion to dismiss becausethe later termination and adoption orders did not affect standing once acquired by them. The Bowers rely on aplain reading of the pertinent statutory provisions. The Matulas urge upholding the trial court’s dismissal becausethe parental rights termination order severed any right the Bowers had to seek access.

A. Standard of Review

We review the trial court’s grant of a motion to dismiss for abuse of discretion. Mercure Co. v. Rowland,715 S.W.2d 677, 680-81 (Tex.App.-Houston [1st Dist.] 1986, writ ref’d n.r.e.). Our scope of review is limited tothose grounds alleged in the Matulas’ motion to dismiss. Id. at 682.

B. Motion to Dismiss

The Matulas’ motion to dismiss alleged the Bowers had no standing because the parents’ rights had been ter-minated. The decree of termination and adoption was included as an exhibit. The motion to dismiss relied onsection 153.434 of the Texas Family Code, which prohibits a grandparent’s request for access when both par-ents’ rights have been terminated and the grandchild has been adopted by someone other than a stepparent:

A biological or adoptive grandparent may not request possession of or access to a grandchild if:

(1) the grandparent is a parent of a person whose parental rights with the child have been terminated by courtorder or death; and

(2) the other biological parent has died or has had that parent’s parental rights terminated and the grandchildhas been adopted by a person other than the child’s stepparent.

TEX.FAM.CODE ANN. § 153.434 (Vernon 1996) (emphasis added).

The Matulas filed a brief in support of their motion to dismiss. The cases they cited did not address whetherstanding is destroyed by the granting of a termination and adoption order while a request for access is pending.

C. Response Below

The Bowers acknowledged the Matulas reliance on Texas Family Code, section 153.434. The Bowers relied onTexas Family Code, section 153.433, pointing out that it also governs possession of and access to a grandchild.It requires the existence of at least one biological or adoptive parent’s parental rights at the time a grandparentrequests access to a grandchild:

The court may order reasonable access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had thatparent’s parental rights terminated; and

(2) access is in the best interest of the child, and at least one of the following facts is present:····

(B) the parents of the child are divorced····

TEX.FAM.CODE ANN. § 153.433 (Vernon 1996) (emphasis added).

The Bowers contended that section 153.434 did not apply to this case because they had requested access to theirgrandchild before the parental rights termination order was granted. They argued that they had requested accessin their pleadings, which is the instrument by which relief is requested in all litigation. See Cunningham v.Parkdale Bank, 660 S.W.2d 810, 812 (Tex.1983).



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D. Standing

Sections 153.433 and 153.434 together establish a bright line before which a grandparent’s request for access ofa grandchild may be made and after which it may not. That line is when all parents’ rights have been terminatedand the grandchild has been adopted by someone other than a stepparent. Here, the Bowers filed suit request-ing access before parental rights were terminated. This appears to comply with both sections 153.433 and153.434, unless filing suit requesting access does not constitute requesting relief. The issue of standing thus turnson what is meant by requesting relief. Does it occur at the time of filing suit requesting access, or at some othertime nearer the trial court’s ruling?

The Texas Family Code sets out the rights of a grandparent in four sections under subchapter H of subtitle Bregarding suits affecting the parent-child relationship. The parties rely on two of the four sections, but we findguidance in determining when relief is requested in a third section of subchapter H. The plain language ofsection 153.432 provides that a request for the relief of access is made by filing a lawsuit:

(a) A biological or adoptive grandparent may request access to a grandchild by filing:

(1) an original suit; or

(2) a suit for modification as provided by Chapter 156.

(b) A grandparent may request access to a grandchild in a suit filed for the sole purpose of requesting the relief,without regard to whether the appointment of a managing conservator is an issue in the suit.

TEX.FAM.CODE ANN. § 153.432(a) (Vernon 1996) (emphasis added).

Under rules of statutory construction, when a statute is clear and unambiguous, construction by the court isunnecessary; the words will be given their common meaning. Raines v. Sugg, 930 S.W.2d 912, 913 (Tex.App.-Fort Worth 1996, no writ). We hold that the plain meaning of the phrase “at the time relief is requested” is thetime a petition is filed requesting access. This is the time standing is determined for purposes of grandparentrequests for access.

Determining standing in grandparent access suits at the time of filing the lawsuit comports with general proceduralrules that standing is determined at the time a suit is filed. See Texas Ass’n of Business v. Texas Air Control Bd.,852 S.W.2d 440, 443 (Tex.1993). This resolution is also consistent with express legislative intent that parental termi-nation and adoption orders not affect grandparent access. See TEX.FAM.CODE ANN. § 161.206(c) (Vernon 1996)(“Nothing in this chapter [termination of parent-child relationship] precludes or affects the rights of a biological oradoptive maternal or paternal grandparent to reasonable access under Chapter 153.”); TEX.FAM.CODE ANN.§ 162.017(d) (Vernon 1996) (same regarding adoption chapter). It also makes clear that had the Matulas obtainedtermination of parental rights and adoption before the Bowers filed suit seeking access, section 153.434 would haveprohibited the filing of such a suit.

When the Bowers filed their petition requesting access to their grandchild, no termination order or adop-tion order was in place. Therefore, the Bowers had standing to request grandparent access under section153.433(1) and (2)(B); they were not prohibited by section 153.434. The later termination and adoption didnot affect the rights of the Bowers under Chapter 153. See TEX.FAM.CODE ANN. §§ 161.206(c) & 162.017(d)(Vernon 1996). It did not deprive the Bowers of standing. Therefore, the trial court abused its discretion bydismissing the Bowers’ action.

Conclusion

We sustain the sole point of error. We reverse the trial court’s dismissal order and remand for further proceedings.

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586 S.W.2d 606

Court of Civil Appeals of Texas, Austin.Carolyn Farmer DOLMAN, Appellant,

v.Mrs. Louise P. DOLMAN, Appellee.

No. 12993.Aug. 1, 1979.

Rehearing Denied Aug. 22, 1979.

Mother appealed from judgment of the 26th District Court, Williamson County, William S. Lott, J., which grantedpaternal grandmother visitation rights. The Court of Civil Appeals, Shannon, J., held that: (1) although divorcehad been entered prior to the enactment of the Family Code, the mother’s custody of the child had the sameeffect as if she had been appointed managing conservator, so that the paternal grandmother was entitled to main-tain her suit for access, but (2) evidence did not demonstrate by preponderance of the evidence that the welfareor social needs of the child would be served by the grandmother’s visitation.Reversed and remanded.

Mary P. Beeman, Florence, Bill Buckner, Georgetown, for appellant.Edgar A. Nooning, III, Georgetown, for appellee.

SHANNON, Justice.This appeal involves questions concerning grandparents’ rights to access pursuant to Tex.Family Code Ann. s 14.03(d) (Supp.1978).

On June 16, 1967, the district court of Travis County entered a judgment granting appellant Carolyn F. Dolmana divorce from Denver Floyd Dolman. The judgment awarded custody of Lise Nicole Dolman, an infant daughter,to Carolyn with reasonable visitation privileges awarded to Denver.

On May 23, 1978, appellee Louise P. Dolman, the paternal grandmother of Lise, appearing Pro se, filed a “motion tomodify” the divorce judgment of June 16, 1967. By her motion appellee sought to be named “Possessor Conservator”and in addition, sought visitation rights pursuant to s 14.03(d). Appellee acquiesced in the transfer of the cause to thedistrict court of Williamson County. By a subsequent filing, which we construe to be an amended motion, appelleeabandoned her plea to be named “Possessor Conservator” and sought only “right of access” to the child.

Trial was to a jury. The court’s charge contained two special issues. The jury answered: (1) that it was in the bestinterest of the child to grant the grandmother access rights to the child, and (2) that one day each calendar monthfor eight consecutive hours was reasonable access. “Access rights” were defined in the charge to mean “rightsof visitation with the child.” The parties made no complaint of the charge.

Appellant attacks the judgment by a number of points of error.[FN1] She complains by her first point that the districtcourt erred in entering judgment for appellee because Tex.Family Code Ann. s 14.03 does not provide a grandparentan independent cause of action for reasonable access rights to a child in the custody of a fit custodial parent.

FN1. Appellant does not complain of appellee’s failure to plead and prove that the circumstances of the child orperson affected by the order have materially and substantially changed since the entry of the order sought to bemodified. Tex.Family Code Ann. s 14.08(c) (Supp.1978). Any possible error caused by such failure was waived.

Generally, the obligation of the custodial parent to permit visitation by a grandparent is a moral obligation, nota legal one. Deweese v. Crawford, 520 S.W.2d 522 (Tex.Civ.App.1975, writ ref’d n. r. e.). It is held generally thatthe courts will not enforce a right of visitation by a grandparent nor intervene in the relationship betweenthe grandchild and the custodial parent. Deweese v. Crawford, supra ; Gault, Statutory Grandchild Visitation, 5 St. Mary’s L.J. 474 (1973).

Texas Family Code Ann. s 14.03 (Supp.1978), as amended, effective August 29, 1977, provides:

“(a) If a managing conservator is appointed, the court may appoint one or more possessory conservators and setthe time and conditions for possession of or access to the child by the possessory conservators and others.

“(b) On the appointment of a possessory conservator, the court shall prescribe the rights, privileges, duties, andpowers of the possessory conservator.



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“(c) The court may not deny possession of or access to a child to either or both parents unless it finds thatparental possession or access is not in the best interest of the child and that parental possession or access wouldendanger the physical or emotional welfare of the child.

“(d) If the court finds that it is in the best interests of the child as provided in Section 14.07 of this code, the courtmay grant reasonable access rights to either the maternal or paternal grandparents of the child; and to either thenatural maternal or paternal grandparents of a child whose parent-child relationship has been terminated or whohas been adopted before or after the effective date of this code. Such relief shall not be granted unless one ofthe child’s legal parents at the time the relief is requested is the child’s natural parent. The court may issue anynecessary orders to enforce said decree.”

The Tyler Court of Civil Appeals construed the statute in Goolsbee v. Heft, 549 S.W.2d 34 (Tex.Civ.App. 1977, no writ).In Goolsbee the maternal grandparents sought access to the child of their deceased daughter. The district courtgranted right of access to the grandparents. The child’s father, on appeal, contended that a parent, absent plead-ing and proof of unfitness, has an absolute right of custody and control, and that the district court could notaward access to grandparents over the objection of the sole surviving parent. The Tyler court rejected the father’sargument, quoting s 14.03(d) and holding: “This statute clearly gives the grandparents the right to judicially seekvisitation rights to the child, and the court has the authority to order such visitation rights in favor of the grand-parents. Such power is not subject to the will of the parent; otherwise, the statute would be without force.”

The Dallas Court of Civil Appeals in Barrientos v. Garza, 559 S.W.2d 399 (Tex.Civ.App. 1977, no writ), declinedto follow the rule in Goolsbee. Candleria Garza, the maternal grandmother, sought right of access to the chil-dren of her deceased daughter. The children were residing with their father and stepmother. The district courtentered an order awarding the grandmother “access to and visitation with the children.” The Court of CivilAppeals reversed the judgment and rendered judgment denying the grandmother all relief.

In Barrientos the father contended, as does appellant in the case at bar, that s 14.03 does not provide a grandparentan independent cause of action for access rights to a child in the custody of a fit custodial parent. The court heldthat the condition expressed in subdivision (a) of s 14.03, “If a managing conservator is appointed,” applies tothe subsequent subdivisions. Stated another way, s 14.03(a) limits the application of s 14.03(d) to those caseswhere the court appoints a managing conservator. If the court has not appointed a managing conservator, thenthe statute does not empower the court to award access to the grandparents.

In this appeal we need not choose between the rule in Goolsbee and that in Barrientos. Under the rule in eithercase appellee is entitled to maintain her suit for access. Appellant’s possession of Lise is pursuant to a court order.Although the divorce judgment, being prior to the enactment of the Texas Family Code, did not name appellantas managing conservator, her appointment by the judgment as custodian of Lise has the same effect. Point oferror one is overruled.

We also overrule appellant’s constitutional attack on the grandparents’ access provision of the Family Code. “The statehas sufficient interest in the family relationship to permit legislation in this area.” Deweese v. Crawford, supra.

Point of error four is that the district court erred in rendering judgment for appellee because the finding by thejury that access by appellee was in the best interest of the child was against the great weight and preponderanceof the evidence. Appellant does not attack the judgment by a “no evidence” point of error.

In reviewing factual sufficiency points of error, the court considers all of the evidence to determine whetherthe findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. Inre King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellee established that she was Lise’s paternal grandmother. Lise was about eleven years and nine months oldat trial time. Before trial, appellee had not seen Lise since the child was about nineteen months old. Accordingto appellee, she had never learned to pronounce the child’s name correctly. She had not written Lise since thechild had learned to read. During the intervening years, appellee had tried to see the child several times, butappellant had prevented the visits. In May of 1977, appellee attempted to visit Lise during school hours. Sheasked a school custodian the whereabouts of Lise Dolman. The custodian directed appellee to a fourth gradeclass where a child, Lisa Bruce, attended. Lisa Bruce was called from the classroom to see her “grandmother.”Lisa protested that appellee was not her grandmother and that she was not at all familiar with places or transactionsappellee recounted. Nevertheless, appellee insisted that indeed she was the child’s grandmother and persisted

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in having the child pose for pictures with her. The pictures were taken and appellee introduced them as exhibitsin the trial of this case. Appellant called the teacher, Elizabeth Ramsel, to prove that the pictures depicted LisaBruce, not Lise Dolman. Appellant herself also testified that the child in the pictures was not her daughter. Evenafter this testimony, appellee did not appear entirely persuaded of her mistake.

As neither party called Lise as a witness, there is no evidence reflecting her desires with respect to visitation.

Appellee testified that she loved the child. Appellee testified further that the child, by knowing her, would have“added security and another steadfast pillar to lean on as she faces life.” Appellee felt that Lise, by knowing herpaternal grandmother, would be given variety and additional love and affection. Appellee testified that she hada nice home in San Antonio.

Denver Dolman, appellee’s son and Lise’s father, testified that if he were still married to appellant he would not con-sent to his mother visiting Lise. He recounted his very unhappy childhood with appellee. He chose to live withsomeone else as a child because life with his mother was “intolerable.” He described his mother as a “very strongwoman, a very powerful personality,” capable of overwhelming a child. His life with his mother was “miserable,”being loved by his mother one moment and despised by her the next for reasons that he has never understood.

In his capacity as “possessory conservator” of Lise, Dolman testified that he would not voluntarily consent to hismother’s visitation. He claimed that Lise would be harmed and hurt “psychologically” by that visitation. Appellee,in Denver’s opinion, would give Lise a “terrible self-image.” Dolman believed that his mother was a “very sickwoman and should not be allowed to have possession by law of any small child.”

Appellant, naturally, testified in effect that appellee’s visitation with the child would not be in the best interestsof the child. Appellant viewed appellee as an aggressive person who by her energy and lavish responses madeappellant feel as if she were “being pushed into a corner.” Although not very well articulated, appellant’s testi-mony was that appellee would, if given the opportunity, take over the rearing of the child. Appellant decidedearly in the child’s life to resist appellee by cutting off all communication with her. She returned birthday andChristmas gifts that appellee sent Lise in 1969.

From our review of the record, we are convinced that the jury’s answer is based upon little more than the wellaccepted notion that it is meet and right for a grandparent to know his grandchild. Appellee did not demonstrateby a preponderance of the evidence that the welfare or special needs of Lise would be served by appellee’s vis-itation. Indeed, there is considerable support in the record that visitation would Not be in the best interests ofLise. There was evidence that allowance of visitation by appellee could be disruptive and emotionally detrimen-tal to the child. In addition, the record raises doubt concerning appellee’s fitness to be placed in a position ofauthority over a child even for short periods of time. In sum, this Court, after considering all of the evidence, is of the opinion that the jury’s answer to special issue one is so contrary to the great weight and preponderanceof the evidence as to be manifestly unjust.

The judgment is reversed and the cause is remanded to the district court for new trial.

530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, 68 USLW 4458, 00 Cal. Daily Op. Serv. 4345, 2000 DailyJournal D.A.R. 5831, 13 Fla. L. Weekly Fed. S 365

Supreme Court of the United StatesJenifer TROXEL, et vir., Petitioners,

v.Tommie GRANVILLE.

No. 99-138.Argued Jan. 12, 2000.Decided June 5, 2000.

Paternal grandparents petitioned for visitation with children born out-of-wedlock. The Superior Court, SkagitCounty, Michael Rickert, J., awarded visitation, and mother appealed. The Court of Appeals, 87 Wash.App. 131,940 P.2d 698, reversed, and grandparents appealed. The Washington Supreme Court, Madsen, J., affirmed.Certiorari was granted. The Supreme Court, Justice O’Connor, held that Washington statute providing that any



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person may petition court for visitation at any time, and that court may order visitation rights for any personwhen visitation may serve best interest of child, violated substantive due process rights of mother, as applied topermit paternal grandparents, following death of children’s father, to obtain increased court-ordered visitation,in excess of what mother had thought appropriate, based solely on state trial judge’s disagreement with motheras to whether children would benefit from such increased visitation.Affirmed.Justice Souter concurred in judgment and filed opinion.Justice Thomas concurred in judgment and filed opinion.Justice Stevens dissented and filed opinion.Justice Scalia dissented and filed opinion.Justice Kennedy dissented and filed opinion.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter ofDecisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,337, 26 S.Ct. 282, 50 L.Ed. 499.

Washington Rev.Code § 26.10.160(3) permits “[a]ny person” to petition for visitation rights “at any time” andauthorizes state superior courts to grant such rights whenever visitation may serve a child’s best interest.Petitioners Troxel petitioned for the right to visit their deceased son’s daughters. Respondent Granville, the girls’mother, did not oppose all visitation, but objected to the amount sought by the Troxels. The Superior Courtordered more visitation than Granville desired, and she appealed. The State Court of Appeals reversed anddismissed the Troxels’ petition. In affirming, the State Supreme Court held, inter alia, that § 26.10.160(3) uncon-stitutionally infringes on parents’ fundamental right to rear their children. Reasoning that the Federal Constitutionpermits a State to interfere with this right only to prevent harm or potential harm to the child, it found that§ 26.10.160(3) does not require a threshold showing of harm and sweeps too broadly by permitting any personto petition at any time with the only requirement being that the visitation serve the best interest of the child.Held: The judgment is affirmed.137 Wash.2d 1, 137 Wash.2d 1, 969 P.2d 21, affirmed.Justice O’CONNOR, joined by THE CHIEF JUSTICE, Justice GINSBURG, and Justice BREYER, concluded that§ 26.10.160(3), as applied to Granville and her family, violates her due process right to make decisions concern-ing the care, custody, and control of her daughters. Pp. 2059-2065.

(a) The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightenedprotection against government interference with certain fundamental rights and liberty interests,” Washington v.Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772, including parents’ fundamental right to makedecisions concerning the care, custody, and control of their children, see, e.g., Stanley v. Illinois, 405 U.S. 645,651, 92 S.Ct. 1208, 31 L.Ed.2d 551. Pp. 2059-2060.

(b) Washington’s breathtakingly broad statute effectively permits a court to disregard and overturn any decisionby a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitationpetition, based solely on the judge’s determination of the child’s best interest. A parent’s estimation of the child’sbest interest is accorded no deference. The State Supreme Court had the opportunity, but declined, to give§ 26.10.160(3) a narrower reading. A combination of several factors compels the conclusion that § 26.10.160(3),as applied here, exceeded the bounds of the Due Process Clause. First, the Troxels did not allege, and no courthas found, that Granville was an unfit parent. There is a presumption that fit parents act in their children’s bestinterests, Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101; there is normally no reason for theState to inject itself into the private realm of the family to further question fit parents’ ability to make the bestdecisions regarding their children, see, e.g., Reno v. Flores, 507 U.S. 292, 304, 113 S.Ct. 1439, 123 L.Ed.2d 1. Theproblem here is not that the Superior Court intervened, but that when it did so, it gave no special weight toGranville’s determination of her daughters’ best interests. More importantly, that court appears to have appliedthe opposite presumption, favoring grandparent visitation. In effect, it placed on Granville the burden ofdisproving that visitation would be in her daughters’ best interest and thus failed to provide any protection forher fundamental right. The court also gave no weight to Granville’s having assented to visitation even before thefiling of the petition or subsequent court intervention. These factors, when considered with the Superior Court’s

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slender findings, show that this case involves nothing more than a simple disagreement between the court andGranville concerning her children’s best interests, and that the visitation order was an unconstitutional infringe-ment on Granville’s right to make decisions regarding the rearing of her children. Pp. 2060-2064.

(c) Because the instant decision rests on § 26.10.160(3)’s sweeping breadth and its application here, there is noneed to consider the question whether the Due Process Clause requires all nonparental visitation statutes toinclude a showing of harm or potential harm to the child as a condition precedent to granting visitation orto decide the precise scope of the parental due process right in the visitation context. There is also no reason toremand this case for further proceedings. The visitation order clearly violated the Constitution, and the partiesshould not be forced into additional litigation that would further burden Granville’s parental right. Pp. 2064-2065.

Justice SOUTER concluded that the Washington Supreme Court’s second reason for invalidating its own statestatute-that it sweeps too broadly in authorizing any person at any time to request (and a judge to award) visi-tation rights, subject only to the State’s particular best-interests standard-is consistent with this Court’s prior cases.This ends the case, and there is no need to decide whether harm is required or to consider the precise scope ofa parent’s right or its necessary protections. Pp. 2065-2067.

Justice THOMAS agreed that this Court’s recognition of a fundamental right of parents to direct their children’supbringing resolves this case, but concluded that strict scrutiny is the appropriate standard of review to apply toinfringements of fundamental rights. Here, the State lacks a compelling interest in second-guessing a fit parent’sdecision regarding visitation with third parties. Pp. 2067-2068.

O’CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., andGINSBURG and BREYER, JJ., joined. SOUTER, J., post, p. 2065, and THOMAS, J., post, p. 2067, filed opinionsconcurring in the judgment. STEVENS, J., post, p. 2068, SCALIA, J., post, p. 2074, and KENNEDY, J., post, p. 2075,filed dissenting opinions.

Mark D. Olson, for petitioners.Catherine W. Smith, Howard Goodfriend, for respondent.For U.S. Supreme Court briefs, see:1999 WL 1079965 (Pet.Brief)1999 WL 1146868 (Resp.Brief)1999 WL 1272929(Reply.Brief)

Justice O’CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE,Justice GINSBURG, and Justice BREYER join.Section 26.10.160(3) of the Revised Code of Washington permits “[a]ny person” to petition a superior court forvisitation rights “at any time,” and authorizes that court to grant such visitation rights whenever “visitation mayserve the best interest of the child.” Petitioners Jenifer and Gary Troxel petitioned a Washington Superior Courtfor the right to visit their grandchildren, Isabelle and Natalie Troxel. Respondent Tommie Granville, the motherof Isabelle and Natalie, opposed the petition. The case ultimately reached the Washington Supreme Court, whichheld that § 26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children.

I

Tommie Granville and Brad Troxel shared a relationship that ended in June 1991. The two never married, butthey had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brad’s parents, and thus the paternalgrandparents of Isabelle and Natalie. After Tommie and Brad separated in 1991, Brad lived with his parents andregularly brought his daughters to his parents’ home for weekend visitation. Brad committed suicide in May 1993.Although the Troxels at first continued to see Isabelle and Natalie on a regular basis after their son’s death,Tommie Granville informed the Troxels in October 1993 that she wished to limit their visitation with her daughtersto one short visit per month. In re Smith, 137 Wash.2d 1, 6, 969 P.2d 21, 23-24 (1998); In re Troxel, 87 Wash.App. 131,133, 940 P.2d 698, 698-699 (1997).

In December 1993, the Troxels commenced the present action by filing, in the Washington Superior Court forSkagit County, a petition to obtain visitation rights with Isabelle and Natalie. The Troxels filed their petition undertwo Washington statutes, Wash. Rev.Code §§ 26.09.240 and 26.10.160(3) (1994). Only the latter statute is at issuein this case. Section 26.10.160(3) provides: “Any person may petition the court for visitation rights at any timeincluding, but not limited to, custody proceedings. The court may order visitation rights for any person whenvisitation may serve the best interest of the child whether or not there has been any change of circumstances.”



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At trial, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation eachsummer. Granville did not oppose visitation altogether, but instead asked the court to order one day of visitation permonth with no overnight stay. 87 Wash.App., at 133-134, 940 P.2d, at 699. In 1995, the Superior Court issued an oralruling and entered a visitation decree ordering visitation one weekend per month, one week during the summer,and four hours on both of the petitioning grandparents’ birthdays. 137 Wash.2d, at 6, 969 P.2d, at 23; App. toPet. for Cert. 76a-78a.

Granville appealed, during which time she married Kelly Wynn. Before addressing the merits of Granville’sappeal, the Washington Court of Appeals remanded the case to the Superior Court for entry of written findingsof fact and conclusions of law. 137 Wash.2d, at 6, 969 P.2d, at 23. On remand, the Superior Court found thatvisitation was in Isabelle’s and Natalie’s best interests:

“The Petitioners [the Troxels] are part of a large, central, loving family, all located in this area, and the Petitionerscan provide opportunities for the children in the areas of cousins and music.

“··· The court took into consideration all factors regarding the best interest of the children and considered all thetestimony before it. The children would be benefitted from spending quality time with the Petitioners, providedthat that time is balanced with time with the childrens’ [sic] nuclear family. The court finds that the childrens’[sic] best interests are served by spending time with their mother and stepfather’s other six children.” App. 70a.

Approximately nine months after the Superior Court entered its order on remand, Granville’s husband formallyadopted Isabelle and Natalie. Id., at 60a-67a.

The Washington Court of Appeals reversed the lower court’s visitation order and dismissed the Troxels’ petitionfor visitation, holding that nonparents lack standing to seek visitation under § 26.10.160(3) unless a custody actionis pending. In the Court of Appeals’ view, that limitation on nonparental visitation actions was “consistent withthe constitutional restrictions on state interference with parents’ fundamental liberty interest in the care, custody,and management of their children.” 87 Wash.App., at 135, 940 P.2d, at 700 (internal quotation marks omitted).Having resolved the case on the statutory ground, however, the Court of Appeals did not expressly pass onGranville’s constitutional challenge to the visitation statute. Id., at 138, 940 P.2d, at 701.

The Washington Supreme Court granted the Troxels’ petition for review and, after consolidating their case withtwo other visitation cases, affirmed. The court disagreed with the Court of Appeals’ decision on the statutoryissue and found that the plain language of § 26.10.160(3) gave the Troxels standing to seek visitation, irrespec-tive of whether a custody action was pending. 137 Wash.2d, at 12, 969 P.2d, at 26-27. The Washington SupremeCourt nevertheless agreed with the Court of Appeals’ ultimate conclusion that the Troxels could not obtainvisitation of Isabelle and Natalie pursuant to § 26.10.160(3). The court rested its decision on the FederalConstitution, holding that § 26.10.160(3) unconstitutionally infringes on the fundamental right of parents to reartheir children. In the court’s view, there were at least two problems with the nonparental visitation statute. First,according to the Washington Supreme Court, the Constitution permits a State to interfere with the right of par-ents to rear their children only to prevent harm or potential harm to a child. Section 26.10.160(3) fails that stan-dard because it requires no threshold showing of harm. Id., at 15-20, 969 P.2d, at 28-30. Second, by allowing “‘any person’ to petition for forced visitation of a child at ‘any time’ with the only requirement being that the vis-itation serve the best interest of the child,” the Washington visitation statute sweeps too broadly. Id., at 20, 969P.2d, at 30. “It is not within the province of the state to make significant decisions concerning the custody of chil-dren merely because it could make a ‘better’ decision.” Ibid., 969 P.2d, at 31. The Washington Supreme Courtheld that “[p]arents have a right to limit visitation of their children with third persons,” and that between parentsand judges, “the parents should be the ones to choose whether to expose their children to certain people orideas.” Id., at 21, 969 P.2d, at 31. Four justices dissented from the Washington Supreme Court’s holding on theconstitutionality of the statute. Id., at 23-43, 969 P.2d 21, 969 P.2d, at 32-42.

We granted certiorari, 527 U.S. 1069, 120 S.Ct. 11, 144 L.Ed.2d 842 (1999), and now affirm the judgment.

II

The demographic changes of the past century make it difficult to speak of an average American family. The com-position of families varies greatly from household to household. While many children may have two marriedparents and grandparents who visit regularly, many other children are raised in single-parent households. In

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1996, children living with only one parent accounted for 28 percent of all children under age 18 in the UnitedStates. U.S. Dept. of Commerce, Bureau of Census, Current Population Reports, 1997 Population Profile of theUnited States 27 (1998). Understandably, in these single-parent households, persons outside the nuclear family arecalled upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparentsplay an important role. For example, in 1998, approximately 4 million children—or 5.6 percent of all childrenunder age 18—lived in the household of their grandparents. U.S. Dept. of Commerce, Bureau of Census, CurrentPopulation Reports, Marital Status and Living Arrangements: March 1998 (Update), p. i (1998).

The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States’ recog-nition of these changing realities of the American family. Because grandparents and other relatives undertakeduties of a parental nature in many households, States have sought to ensure the welfare of the children thereinby protecting the relationships those children form with such third parties. The States’ nonparental visitationstatutes are further supported by a recognition, which varies from State to State, that children should have theopportunity to benefit from relationships with statutorily specified persons-for example, their grandparents. The extension of statutory rights in this area to persons other than a child’s parents, however, comes with an obvi-ous cost. For example, the State’s recognition of an independent third-party interest in a child can place a substan-tial burden on the traditional parent-child relationship. Contrary to Justice STEVENS’ accusation, our descriptionof state nonparental visitation statutes in these terms, of course, is not meant to suggest that “children are somuch chattel.” Post, at 2072 (dissenting opinion). Rather, our terminology is intended to highlight the fact thatthese statutes can present questions of constitutional import. In this case, we are presented with just such a ques-tion. Specifically, we are asked to decide whether § 26.10.160(3), as applied to Tommie Granville and her family,violates the Federal Constitution.

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without dueprocess of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment coun-terpart, “guarantees more than fair process.” Washington v.Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 (1997). TheClause also includes a substantive component that “provides heightened protection against government inter-ference with certain fundamental rights and liberty interests.” Id., at 720, 117 S.Ct. 2258; see also Reno v.Flores,507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).

The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—isperhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v.Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the “liberty” protected by the DueProcess Clause includes the right of parents to “establish a home and bring up children” and “to control the educa-tion of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070(1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and edu-cation of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State;those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and preparehim for additional obligations.” Id., at 535, 45 S.Ct. 571. We returned to the subject in Prince v.Massachusetts, 321 U.S.158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of par-ents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the childreside first in the parents, whose primary function and freedom include preparation for obligations the state can nei-ther supply nor hinder.” Id., at 166, 64 S.Ct. 438.

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerningthe care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208,31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and man-agement of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is madeto liberties which derive merely from shifting economic arrangements’ ” (citation omitted)); Wisconsin v.Yoder,406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect astrong tradition of parental concern for the nurture and upbringing of their children. This primary role of theparents in the upbringing of their children is now established beyond debate as an enduring American tradi-tion”); Quilloin v.Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized onnumerous occasions that the relationship between parent and child is constitutionally protected”); Parham v.J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (“Our jurisprudence historically has reflected Westerncivilization concepts of the family as a unit with broad parental authority over minor children. Our cases have



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consistently followed that course”); Santosky v.Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)(discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of theirchild”); Glucksberg, supra, at 720, 117 S.Ct. 2258 (“In a long line of cases, we have held that, in addition to thespecific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clauseincludes the righ [t] ··· to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). Inlight of this extensive precedent, it cannot now be doubted that the Due Process Clause of the FourteenthAmendment protects the fundamental right of parents to make decisions concerning the care, custody, and con-trol of their children.

Section 26.10.160(3), as applied to Granville and her family in this case, unconstitutionally infringes on that fun-damental parental right. The Washington nonparental visitation statute is breathtakingly broad. According to thestatute’s text, “ [a]ny person may petition the court for visitation rights at any time,” and the court may grantsuch visitation rights whenever “visitation may serve the best interest of the child.” § 26.10.160(3) (emphasesadded). That language effectively permits any third party seeking visitation to subject any decision by a parentconcerning visitation of the parent’s children to state-court review. Once the visitation petition has been filed incourt and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s bestinterest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent’sdecision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimationof the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect, in the State ofWashington a court can disregard and overturn any decision by a fit custodial parent concerning visitation when-ever a third party affected by the decision files a visitation petition, based solely on the judge’s determination ofthe child’s best interests. The Washington Supreme Court had the opportunity to give § 26.10.160(3) a narrowerreading, but it declined to do so. See, e.g., 137 Wash.2d, at 5, 969 P.2d, at 23 (“[The statute] allow[s] any person,at any time, to petition for visitation without regard to relationship to the child, without regard to changed cir-cumstances, and without regard to harm”); id., at 20, 969 P.2d, at 30 (“[The statute] allow[s] ‘any person’ to peti-tion for forced visitation of a child at ‘any time’ with the only requirement being that the visitation serve the bestinterest of the child.”)

Turning to the facts of this case, the record reveals that the Superior Court’s order was based on precisely thetype of mere disagreement we have just described and nothing more. The Superior Court’s order was notfounded on any special factors that might justify the State’s interference with Granville’s fundamental right tomake decisions concerning the rearing of her two daughters. To be sure, this case involves a visitation petitionfiled by grandparents soon after the death of their son-the father of Isabelle and Natalie-but the combination ofseveral factors here compels our conclusion that § 26.10.160(3), as applied, exceeded the bounds of the DueProcess Clause.

First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of thecase is important, for there is a presumption that fit parents act in the best interests of their children. As this Courtexplained in Parham:

“[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, onthe contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and pre-pare [their children] for additional obligations. ··· The law’s concept of the family rests on a presumption thatparents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’sdifficult decisions. More important, historically it has recognized that natural bonds of affection lead parents toact in the best interests of their children.” 442 U.S., at 602, 99 S.Ct. 2493 (alteration in original) (internal quota-tion marks and citations omitted).

Accordingly, so long as a parent adequately cares for his or her children ( i.e., is fit), there will normally be no reasonfor the State to inject itself into the private realm of the family to further question the ability of that parent to makethe best decisions concerning the rearing of that parent’s children. See, e.g., Flores, 507 U.S., at 304, 113 S.Ct. 1439.

The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no spe-cial weight at all to Granville’s determination of her daughters’ best interests. More importantly, it appears thatthe Superior Court applied exactly the opposite presumption. In reciting its oral ruling after the conclusion ofclosing arguments, the Superior Court judge explained:

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“The burden is to show that it is in the best interest of the children to have some visitation and some quality timewith their grandparents. I think in most situations a commonsensical approach [is that] it is normally in the bestinterest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are someissues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon thechildren. That certainly isn’t the case here from what I can tell.” Verbatim Report of Proceedings in In re Troxel,No. 93-3-00650-7 (Wash.Super.Ct., Dec. 14, 19, 1994), p. 213 (hereinafter Verbatim Report).

The judge’s comments suggest that he presumed the grandparents’ request should be granted unless the chil-dren would be “impact[ed] adversely.” In effect, the judge placed on Granville, the fit custodial parent, the burdenof disproving that visitation would be in the best interest of her daughters. The judge reiterated moments later:“I think [visitation with the Troxels] would be in the best interest of the children and I haven’t been shown it isnot in [the] best interest of the children.” Id., at 214, 113 S.Ct. 1439.

The decisional framework employed by the Superior Court directly contravened the traditional presumption thata fit parent will act in the best interest of his or her child. See Parham, supra, at 602, 99 S.Ct. 2493. In that respect,the court’s presumption failed to provide any protection for Granville’s fundamental constitutional right to makedecisions concerning the rearing of her own daughters. Cf., e.g., Cal. Fam.Code Ann. § 3104(e) (West 1994) (rebut-table presumption that grandparent visitation is not in child’s best interest if parents agree that visitation rightsshould not be granted); Me.Rev.Stat. Ann., Tit. 19A, § 1803(3) (1998) (court may award grandparent visitation ifin best interest of child and “would not significantly interfere with any parent-child relationship or with theparent’s rightful authority over the child”); Minn.Stat. § 257.022(2)(a)(2) (1998) (court may award grandparentvisitation if in best interest of child and “such visitation would not interfere with the parent-child relationship”);Neb.Rev.Stat. § 43-1802(2) (1998) (court must find “by clear and convincing evidence” that grandparent visitation“will not adversely interfere with the parent-child relationship”); R.I. Gen. Laws § 15-5-24.3(a)(2)(v) (Supp.1999)(grandparent must rebut, by clear and convincing evidence, presumption that parent’s decision to refuse grandparentvisitation was reasonable); Utah Code Ann. § 30-5-2(2)(e) (1998) (same); Hoff v. Berg, 595 N.W.2d 285, 291-292(N.D.1999) (holding North Dakota grandparent visitation statute unconstitutional because State has no “com-pelling interest in presuming visitation rights of grandparents to an unmarried minor are in the child’s best interestsand forcing parents to accede to court-ordered grandparental visitation unless the parents are first able to provesuch visitation is not in the best interests of their minor child”). In an ideal world, parents might always seek tocultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is farfrom perfect, and in it the decision whether such an intergenerational relationship would be beneficial in anyspecific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue herebecomes subject to judicial review, the court must accord at least some special weight to the parent’s owndetermination.

Finally, we note that there is no allegation that Granville ever sought to cut off visitation entirely. Rather, the pres-ent dispute originated when Granville informed the Troxels that she would prefer to restrict their visitation withIsabelle and Natalie to one short visit per month and special holidays. See 87 Wash.App., at 133, 940 P.2d, at 699;Verbatim Report 12. In the Superior Court proceedings Granville did not oppose visitation but instead asked thatthe duration of any visitation order be shorter than that requested by the Troxels. While the Troxels requestedtwo weekends per month and two full weeks in the summer, Granville asked the Superior Court to order onlyone day of visitation per month (with no overnight stay) and participation in the Granville family’s holiday cel-ebrations. See 87 Wash.App., at 133, 940 P.2d, at 699; Verbatim Report 9 (“Right off the bat we’d like to say thatour position is that grandparent visitation is in the best interest of the children. It is a matter of how much andhow it is going to be structured”) (opening statement by Granville’s attorney). The Superior Court gave no weightto Granville’s having assented to visitation even before the filing of any visitation petition or subsequent courtintervention. The court instead rejected Granville’s proposal and settled on a middle ground, ordering one week-end of visitation per month, one week in the summer, and time on both of the petitioning grandparents’ birth-days. See 87 Wash.App., at 133-134, 940 P.2d, at 699; Verbatim Report 216-221. Significantly, many other Statesexpressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonablydenied) visitation to the concerned third party. See, e.g., Miss.Code Ann. § 93-16-3(2)(a) (1994) (court must findthat “the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child”);Ore.Rev.Stat. § 109.121(1)(a)(B) (1997) (court may award visitation if the “custodian of the child has denied the



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grandparent reasonable opportunity to visit the child”); R.I. Gen. Laws §§ 15-5-24.3(a)(2)(iii)-(iv) (Supp.1999)(court must find that parents prevented grandparent from visiting grandchild and that “there is no other way thepetitioner is able to visit his or her grandchild without court intervention”).

Considered together with the Superior Court’s reasons for awarding visitation to the Troxels, the combination ofthese factors demonstrates that the visitation order in this case was an unconstitutional infringement onGranville’s fundamental right to make decisions concerning the care, custody, and control of her two daughters.The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any mate-rial weight. In fact, the Superior Court made only two formal findings in support of its visitation order. First, theTroxels “are part of a large, central, loving family, all located in this area, and the [Troxels] can provide oppor-tunities for the children in the areas of cousins and music.” App. 70a. Second, “[t]he children would be benefitted fromspending quality time with the [Troxels], provided that that time is balanced with time with the childrens’ [sic]nuclear family.” Ibid. These slender findings, in combination with the court’s announced presumption in favorof grandparent visitation and its failure to accord significant weight to Granville’s already having offered mean-ingful visitation to the Troxels, show that this case involves nothing more than a simple disagreement betweenthe Washington Superior Court and Granville concerning her children’s best interests. The Superior Court’sannounced reason for ordering one week of visitation in the summer demonstrates our conclusion well: “I lookback on some personal experiences ···. We always spen[t] as kids a week with one set of grandparents andanother set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyableexperience. Maybe that can, in this family, if that is how it works out.” Verbatim Report 220-221. As we haveexplained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents tomake child rearing decisions simply because a state judge believes a “better” decision could be made. Neitherthe Washington nonparental visitation statute generally-which places no limits on either the persons who maypetition for visitation or the circumstances in which such a petition may be granted-nor the Superior Court inthis specific case required anything more. Accordingly, we hold that § 26.10.160(3), as applied in this case, isunconstitutional.

Because we rest our decision on the sweeping breadth of § 26.10.160(3) and the application of that broad, unlim-ited power in this case, we do not consider the primary constitutional question passed on by the WashingtonSupreme Court-whether the Due Process Clause requires all nonparental visitation statutes to include a showingof harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not,define today the precise scope of the parental due process right in the visitation context. In this respect, we agreewith Justice KENNEDY that the constitutionality of any standard for awarding visitation turns on the specificmanner in which that standard is applied and that the constitutional protections in this area are best “elaboratedwith care.” Post, at 2079 (dissenting opinion). Because much state-court adjudication in this context occurs on acase-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the DueProcess Clause as a per se matter.FN* See, e.g., Fairbanks v.McCarter, 330 Md. 39, 49-50, 622 A.2d 121, 126-127 (1993)(interpreting best-interest standard in grandparent visitation statute normally to require court’s consideration ofcertain factors); Williams v.Williams, 256 Va. 19, 501 S.E.2d 417, 418 (1998) (interpreting Virginia nonparentalvisitation statute to require finding of harm as condition precedent to awarding visitation).

FN* All 50 States have statutes that provide for grandparent visitation in some form. See Ala.Code § 30-3-4.1 (1989);Alaska Stat. Ann. § 25.20.065 (1998); Ariz.Rev.Stat. Ann. § 25-409 (1994); Ark.Code Ann. § 9-13-103 (1998);Cal. Fam.Code Ann. § 3104 (West 1994); Colo.Rev.Stat. § 19-1-117 (1999); Conn. Gen.Stat. § 46b-59 (1995);Del.Code Ann., Tit. 10, § 1031(7) (1999); Fla. Stat. § 752.01 (1997); Ga.Code Ann. § 19-7-3 (1991);Haw.Rev.Stat. § 571-46.3 (1999); Idaho Code § 32-719 (1999); Ill. Comp. Stat., ch. 750, § 5/607 (1998);Ind.Code § 31-17-5-1 (1999); Iowa Code § 598.35 (1999); Kan. Stat. Ann. § 38-129 (1993); Ky.Rev.Stat. Ann.§ 405.021 (Baldwin 1990); La.Rev.Stat. Ann. § 9:344 (West Supp.2000); La. Civ.Code Ann., Art. 136 (West Supp.2000);Me.Rev.Stat. Ann., Tit. 19A, § 1803 (1998); Md. Fam. Law Code Ann. § 9-102 (1999); Mass. Gen. Laws § 119:39D (1996);Mich. Comp. Laws Ann. § 722.27b (West Supp.1999); Minn.Stat. § 257.022 (1998); Miss.Code Ann. § 93-16-3 (1994);Mo.Rev.Stat. § 452.402 (Supp.1999); Mont.Code Ann. § 40-9-102 (1997); Neb.Rev.Stat. § 43-1802 (1998);Nev.Rev.Stat. § 125C.050 (Supp.1999); N.H.Rev.Stat. Ann. § 458:17-d (1992); N.J. Stat. Ann. § 9:2-7.1 (West Supp.1999-2000); N.M. Stat. Ann. § 40-9-2 (1999); N.Y. Dom. Rel. Law § 72 (McKinney 1999); N.C. Gen.Stat. §§ 50-13.2, 50-13.2A (1999); N.D. Cent.Code § 14-09-05.1 (1997); Ohio Rev.Code Ann. §§ 3109.051, 3109.11 (Supp.1999);Okla. Stat., Tit. 10, § 5 (Supp.1999); Ore.Rev.Stat. § 109.121 (1997); 23 Pa. Cons.Stat. §§ 5311-5313 (1991);R.I. Gen. Laws §§ 15-5-24 to 15-5-24.3 (Supp.1999); S.C.Code Ann. § 20-7-420(33) (Supp.1999); S.D. Codified Laws

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§ 25-4-52 (1999); Tenn.Code Ann. §§ 36-6-306, 36-6-307 (Supp.1999); Tex. Fam.Code Ann. § 153.433 (Supp.2000);Utah Code Ann. § 30-5-2 (1998); Vt. Stat. Ann., Tit. 15, §§ 1011-1013 (1989); Va.Code Ann. § 20-124.2 (1995);W. Va.Code §§ 48-2B-1 to 48-2B-7 (1999); Wis. Stat. §§ 767.245, 880.155 (1993-1994); Wyo. Stat. Ann. § 20-7-101 (1999).

Justice STEVENS criticizes our reliance on what he characterizes as merely “a guess” about the Washington courts’interpretation of § 26.10.160(3). Post, at 2068 (dissenting opinion). Justice KENNEDY likewise states that “[m]ore spe-cific guidance should await a case in which a State’s highest court has considered all of the facts in the course ofelaborating the protection afforded to parents by the laws of the State and by the Constitution itself.” Post, at 2079(dissenting opinion). We respectfully disagree. There is no need to hypothesize about how the Washington courtsmight apply § 26.10.160(3) because the Washington Superior Court did apply the statute in this very case. Like theWashington Supreme Court, then, we are presented with an actual visitation order and the reasons why the SuperiorCourt believed entry of the order was appropriate in this case. Faced with the Superior Court’s applicationof § 26.10.160(3) to Granville and her family, the Washington Supreme Court chose not to give the statute a narrowerconstruction. Rather, that court gave § 26.10.160(3) a literal and expansive interpretation. As we have explained, thatbroad construction plainly encompassed the Superior Court’s application of the statute. See supra, at 2060-2061.

There is thus no reason to remand the case for further proceedings in the Washington Supreme Court. As JusticeKENNEDY recognizes, the burden of litigating a domestic relations proceeding can itself be “so disruptive of theparent-child relationship that the constitutional right of a custodial parent to make certain basic determinationsfor the child’s welfare becomes implicated.” Post, at 2079. In this case, the litigation costs incurred by Granvilleon her trip through the Washington court system and to this Court are without a doubt already substantial. Aswe have explained, it is apparent that the entry of the visitation order in this case violated the Constitution. Weshould say so now, without forcing the parties into additional litigation that would further burden Granville’sparental right. We therefore hold that the application of § 26.10.160(3) to Granville and her family violated herdue process right to make decisions concerning the care, custody, and control of her daughters.

Accordingly, the judgment of the Washington Supreme Court is affirmed.

It is so ordered.

Justice SOUTER, concurring in the judgment.I concur in the judgment affirming the decision of the Supreme Court of Washington, whose facial invalidationof its own state statute is consistent with this Court’s prior cases addressing the substantive interests at stake. Iwould say no more. The issues that might well be presented by reviewing a decision addressing the specificapplication of the state statute by the trial court, ante, at 2061-2064, are not before us and do not call for turning anyfresh furrows in the “treacherous field” of substantive due process. Moore v. East Cleveland, 431 U.S. 494,502, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (opinion of Powell, J.).

The Supreme Court of Washington invalidated its state statute based on the text of the statute alone, not its applica-tion to any particular case. FN1 Its ruling rested on two independently sufficient grounds: the failure of the statute torequire harm to the child to justify a disputed visitation order, In re Smith, 137 Wash.2d 1, 17, 969 P.2d 21, 29 (1998),and the statute’s authorization of “any person” at “any time” to petition for and to receive visitation rights sub-ject only to a free-ranging best-interests-of-the-child standard, id., at 20-21, 969 P.2d, at 30-31. Ante, at 2058-2059,969 P.2d 21. I see no error in the second reason, that because the state statute authorizes any person at any timeto request (and a judge to award) visitation rights, subject only to the State’s particular best-interests standard,the state statute sweeps too broadly and is unconstitutional on its face. Consequently, there is no need to decidewhether harm is required or to consider the precise scope of the parent’s right or its necessary protections.

FN1. The Supreme Court of Washington made its ruling in an action where three separate cases, including theTroxels’, had been consolidated. In re Smith, 137 Wash.2d 1, 6-7, 969 P.2d 21, 23-24 (1998). The court alsoaddressed two statutes, Wash. Rev.Code § 26.10.160(3) (Supp.1996) and former Wash. Rev.Code § 26.09.240 (1994),137 Wash.2d, at 7, 969 P.2d, at 24, the latter of which is not even at issue in this case. See Brief for Petitioners 6, n. 9;see also ante, at 2057-2058, 969 P.2d 21. Its constitutional analysis discussed only the statutory language and neithermentioned the facts of any of the three cases nor reviewed the records of their trial court proceedings below.137 Wash.2d, at 13-21, 969 P.2d, at 27-31. The decision invalidated both statutes without addressing theirapplication to particular facts: “We conclude petitioners have standing but, as written, the statutes violate theparents’ constitutionally protected interests. These statutes allow any person, at any time, to petition for visitationwithout regard to relationship to the child, without regard to changed circumstances, and without regard to



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harm.” Id., at 5, 969 P.2d, at 23 (emphasis added); see also id., at 21, 969 P.2d, at 31 (“RCW 26.10.160(3) andformer RCW 26.09.240 impermissibly interfere with a parent’s fundamental interest in the care, custody and com-panionship of the child” (citations and internal quotation marks omitted)).

We have long recognized that a parent’s interests in the nurture, upbringing, companionship, care, and custodyof children are generally protected by the Due Process Clause of the Fourteenth Amendment. See, e.g., Meyer v.Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v.Society of Sisters, 268 U.S. 510, 535,45 S.Ct. 571, 69 L.Ed. 1070 (1925); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972);Wisconsin v.Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Quilloin v.Walcott, 434 U.S. 246, 255,98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979);Santosky v.Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Washington v.Glucksberg, 521 U.S. 702,720, 117 S.Ct. 2258 (1997). As we first acknowledged in Meyer, the right of parents to “bring up children,” 262 U.S., at399, 43 S.Ct. 625, and “to control the education of their own” is protected by the Constitution, id., at 401, 43 S.Ct. 625.See also Glucksberg, supra, at 761 (SOUTER, J., concurring in judgment).

On the basis of this settled principle, the Supreme Court of Washington invalidated its statute because it authorized acontested visitation order at the intrusive behest of any person at any time subject only to a best-interests-of-the-childstandard. In construing the statute, the state court explained that the “any person” at “any time” language was tobe read literally, 137 Wash.2d, at 10-11, 969 P.2d, at 25-27, and that “[m]ost notably the statut[e] do[es] not require thepetitioner to establish that he or she has a substantial relationship with the child,” id., at 20-21, 969 P.2d, at 31. Althoughthe statute speaks of granting visitation rights whenever “visitation may serve the best interest of the child,” Wash.Rev.Code § 26.10.160(3) (1994), the state court authoritatively read this provision as placing hardly any limit ona court’s discretion to award visitation rights. As the court understood it, the specific best-interests provision inthe statute would allow a court to award visitation whenever it thought it could make a better decision than achild’s parent had done. See 137 Wash.2d, at 20, 969 P.2d, at 31 (“It is not within the province of the state tomake significant decisions concerning the custody of children merely because it could make a ‘better’decision.”)FN2 On that basis in part, the Supreme Court of Washington invalidated the State’s own statute: “Parentshave a right to limit visitation of their children with third persons.” Id., at 21, 969 P.2d, at 31.

FN2. As Justice O’CONNOR points out, the best-interests provision “contains no requirement that a court accordthe parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statuteplaces the best-interest determination solely in the hands of the judge.” Ante, at 2061, 969 P.2d 21.

Our cases, it is true, have not set out exact metes and bounds to the protected interest of a parent in the relationshipwith his child, but Meyer’s repeatedly recognized right of upbringing would be a sham if it failed to encompassthe right to be free of judicially compelled visitation by “any party” at “any time” a judge believed he “could makea ‘better’ decision” FN3 than the objecting parent had done. The strength of a parent’s interest in controlling a child’sassociates is as obvious as the influence of personal associations on the development of the child’s social andmoral character. Whether for good or for ill, adults not only influence but may indoctrinate children, and a choiceabout a child’s social companions is not essentially different from the designation of the adults who will influ-ence the child in school. Even a State’s considered judgment about the preferable political and religious characterof schoolteachers is not entitled to prevail over a parent’s choice of private school. Pierce, supra, at 535, 45 S.Ct. 571(“The fundamental theory of liberty upon which all governments in this Union repose excludes any generalpower of the State to standardize its children by forcing them to accept instruction from public teachers only.The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupledwith the high duty, to recognize and prepare him for additional obligations.”) It would be anomalous, then, tosubject a parent to any individual judge’s choice of a child’s associates from out of the general population merelybecause the judge might think himself more enlightened than the child’s parent.FN4 To say the least (and as theCourt implied in Pierce), parental choice in such matters is not merely a default rule in the absence of eithergovernmental choice or the government’s designation of an official with the power to choose for whateverreason and in whatever circumstances.

FN3. Cf. Chicago v. Morales, 527 U.S. 41, 71, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (BREYER, J., concurring inpart and concurring in judgment) (“The ordinance is unconstitutional, not because a policeman applied this dis-cretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion inevery case. And if every application of the ordinance represents an exercise of unlimited discretion, then theordinance is invalid in all its applications.”)

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FN4. The Supreme Court of Washington invalidated the broadly sweeping statute at issue on similarly limitedreasoning: “Some parents and judges will not care if their child is physically disciplined by a third person; someparents and judges will not care if a third person teaches the child a religion inconsistent with the parents’ reli-gion; and some judges and parents will not care if the child is exposed to or taught racist or sexist beliefs. Butmany parents and judges will care, and, between the two, the parents should be the ones to choose whether toexpose their children to certain people or ideas.” 137 Wash.2d, at 21, 969 P.2d, at 31 (citation omitted).

Since I do not question the power of a State’s highest court to construe its domestic statute and to apply ademanding standard when ruling on its facial constitutionality,FN5 see Chicago v.Morales, 527 U.S. 41, 55, n. 22,119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (opinion of STEVENS, J.), this for me is the end of the case. I would simplyaffirm the decision of the Supreme Court of Washington that its statute, authorizing courts to grant visitation rightsto any person at any time, is unconstitutional. I therefore respectfully concur in the judgment.

FN5. This is the pivot between Justice KENNEDY’S approach and mine.

Justice THOMAS, concurring in the judgment.

I write separately to note that neither party has argued that our substantive due process cases were wronglydecided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenu-merated rights under that constitutional provision. As a result, I express no view on the merits of this matter, andI understand the plurality as well to leave the resolution of that issue for another day.FN*

FN* This case also does not involve a challenge based upon the Privileges and Immunities Clause and thus doesnot present an opportunity to reevaluate the meaning of that Clause. See Saenz v. Roe, 526 U.S. 489, 527-528,119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (THOMAS, J., dissenting).

Consequently, I agree with the plurality that this Court’s recognition of a fundamental right of parents to direct theupbringing of their children resolves this case. Our decision in Pierce v.Society of Sisters, 268 U.S. 510, 45 S.Ct. 571,69 L.Ed. 1070 (1925), holds that parents have a fundamental constitutional right to rear their children, includingthe right to determine who shall educate and socialize them. The opinions of the plurality, Justice KENNEDY,and Justice SOUTER recognize such a right, but curiously none of them articulates the appropriate standard ofreview. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lackseven a legitimate governmental interest-to say nothing of a compelling one-in second-guessing a fit parent’s deci-sion regarding visitation with third parties. On this basis, I would affirm the judgment below.

Justice STEVENS, dissenting.

The Court today wisely declines to endorse either the holding or the reasoning of the Supreme Court ofWashington. In my opinion, the Court would have been even wiser to deny certiorari. Given the problematiccharacter of the trial court’s decision and the uniqueness of the Washington statute, there was no pressing needto review a State Supreme Court decision that merely requires the state legislature to draft a better statute.

Having decided to address the merits, however, the Court should begin by recognizing that the State SupremeCourt rendered a federal constitutional judgment holding a state law invalid on its face. In light of that judgment,I believe that we should confront the federal questions presented directly. For the Washington statute is not madefacially invalid either because it may be invoked by too many hypothetical plaintiffs, or because it leaves openthe possibility that someone may be permitted to sustain a relationship with a child without having to prove thatserious harm to the child would otherwise result.

I

In response to Tommie Granville’s federal constitutional challenge, the State Supreme Court broadly held thatWash. Rev.Code § 26.10.160(3) (Supp.1996) was invalid on its face under the Federal Constitution.FN1 Despitethe nature of this judgment, Justice O’CONNOR would hold that the Washington visitation statute violated theDue Process Clause of the Fourteenth Amendment only as applied. Ante, at 2059-2060, 2060-2061, 2064 (plural-ity opinion). I agree with Justice SOUTER, ante, at 2065-2066, and n. 1 (opinion concurring in judgment), thatthis approach is untenable.

FN1. The State Supreme Court held that, “as written, the statutes violate the parents’ constitutionally protectedinterests.” In re Smith, 137 Wash.2d 1, 5, 969 P.2d 21, 23 (1998).



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The task of reviewing a trial court’s application of a state statute to the particular facts of a case is one that should beperformed in the first instance by the state appellate courts. In this case, because of their views of the FederalConstitution, the Washington state appeals courts have yet to decide whether the trial court’s findings were adequateunder the statute.FN2 Any as-applied critique of the trial court’s judgment that this Court might offer could only bebased upon a guess about the state courts’ application of that State’s statute, and an independent assessment of thefacts in this case-both judgments that we are ill-suited and ill-advised to make.FN3

FN2. As the dissenting judge on the state appeals court noted, “[t]he trial court here was not presented with anyguidance as to the proper test to be applied in a case such as this.” In re Troxel, 87 Wash.App. 131, 143, 940 P.2d 698,703 (1997) (opinion of Ellington, J.). While disagreeing with the appeals court majority’s conclusion that the statestatute was constitutionally infirm, Judge Ellington recognized that despite this disagreement, the appropriateresult would not be simply to affirm. Rather, because there had been no definitive guidance as to the properconstruction of the statute, “[t]he findings necessary to order visitation over the objections of a parent are thusnot in the record, and I would remand for further proceedings.” Ibid.

FN3. Unlike Justice O’CONNOR, ante, at 2061-2062, I find no suggestion in the trial court’s decision in this casethat the court was applying any presumptions at all in its analysis, much less one in favor of the grandparents.The first excerpt Justice O’CONNOR quotes from the trial court’s ruling, ante, at 2062, says nothing one way oranother about who bears the burden under the statute of demonstrating “best interests.” There is certainly noindication of a presumption against the parents’ judgment, only a “ ‘commonsensical’ ” estimation that, usuallybut not always, visiting with grandparents can be good for children. Ibid. The second quotation, “ ‘I think [visi-tation] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of thechildren,’ ” ibid., sounds as though the judge has simply concluded, based on the evidence before him, that vis-itation in this case would be in the best interests of both girls. Verbatim Report of Proceedings in In re Troxel,No. 93-3-00650-7 (Wash.Super.Ct., Dec. 14, 1994), p. 214. These statements do not provide us with a definitiveassessment of the law the court applied regarding a “presumption” either way. Indeed, a different impression isconveyed by the judge’s very next comment: “That has to be balanced, of course, with Mr. and Mrs. Wynn [a.k.a.Tommie Granville], who are trying to put together a family that includes eight children, ··· trying to get all thosechildren together at the same time and put together some sort of functional unit wherein the children can beraised as brothers and sisters and spend lots of quality time together.” Ibid. The judge then went on to reject theTroxels’ efforts to attain the same level of visitation that their son, the girls’ biological father, would have had,had he been alive. “[T]he fact that Mr. Troxel is deceased and he was the natural parent and as much as thegrandparents would maybe like to step into the shoes of Brad, under our law that is not what we can do. The grandparents cannot step into the shoes of a deceased parent, per say [sic], as far as whole gamut of visita-tion rights are concerned.” Id., at 215. Rather, as the judge put it, “I understand your desire to do that as lovinggrandparents. Unfortunately that would impact too dramatically on the children and their ability to be integratedinto the nuclear unit with the mother.” Id., at 222-223.

However one understands the trial court’s decision-and my point is merely to demonstrate that it is surely opento interpretation-its validity under the state statute as written is a judgment for the state appellate courts to makein the first instance.

While I thus agree with Justice SOUTER in this respect, I do not agree with his conclusion that the State SupremeCourt made a definitive construction of the visitation statute that necessitates the constitutional conclusion he woulddraw.FN4 As I read the State Supreme Court’s opinion, In re Smith, 137 Wash.2d 1, 19-20, 969 P.2d 21, 30-31 (1998),its interpretation of the Federal Constitution made it unnecessary to adopt a definitive construction of the statutorytext, or, critically, to decide whether the statute had been correctly applied in this case. In particular, the state courtgave no content to the phrase, “best interest of the child,” Wash. Rev.Code § 26.10.160(3) (Supp.1996)-content thatmight well be gleaned from that State’s own statutes or decisional law employing the same phrase in different con-texts, and from the myriad other state statutes and court decisions at least nominally applying the same standard.FN5

Thus, I believe that Justice SOUTER’S conclusion that the statute unconstitutionally imbues state trial court judges with“ ‘too much discretion in every case,’ ” ante, at 2067, n. 3 (opinion concurring in judgment) (quoting Chicago v.Morales, 527 U.S. 41, 71, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (BREYER, J., concurring)), is premature.

FN4. Justice SOUTER would conclude from the state court’s statement that the statute “do[es] not require the petitionerto establish that he or she has a substantial relationship with the child,” 137 Wash.2d, at 21, 969 P.2d, at 31, thatthe state court has “authoritatively read [the ‘best interests’] provision as placing hardly any limit on a court’s dis-

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cretion to award visitation rights,” ante, at 2066 (opinion concurring in judgment). Apart from the questionwhether one can deem this description of the statute an “authoritative” construction, it seems to me exceedinglyunlikely that the state court held the statute unconstitutional because it believed that the “best interests” standardimposes “hardly any limit” on courts’ discretion. See n. 5, infra.

FN5. The phrase “best interests of the child” appears in no less than 10 current Washington state statutory pro-visions governing determinations from guardianship to termination to custody to adoption. See, e.g., Wash.Rev.Code § 26.09.240(6) (Supp.1996) (amended version of visitation statute enumerating eight factors courts mayconsider in evaluating a child’s best interests); § 26.09.002 (in cases of parental separation or divorce “best inter-ests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, healthand stability, and physical care”; “best interest of the child is ordinarily served when the existing pattern of inter-action between a parent and child is altered only to the extent necessitated by the changed relationship of theparents or as required to protect the child from physical, mental, or emotional harm”); § 26.10.100 (“The courtshall determine custody in accordance with the best interests of the child.”) Indeed, the Washington state courtshave invoked the standard on numerous occasions in applying these statutory provisions-just as if the phrasehad quite specific and apparent meaning. See, e.g., In re McDole, 122 Wash.2d 604, 859 P.2d 1239 (1993) (upholdingtrial court “best interest” assessment in custody dispute); McDaniels v.Carlson, 108 Wash.2d 299, 310, 738 P.2d 254,261 (1987) (elucidating “best interests” standard in paternity suit context). More broadly, a search of current statecustody and visitation laws reveals fully 698 separate references to the “best interest of the child” standard, anumber that, at a minimum, should give the Court some pause before it upholds a decision implying that thosewords, on their face, may be too boundless to pass muster under the Federal Constitution.

We are thus presented with the unconstrued terms of a state statute and a State Supreme Court opinion that, inmy view, significantly misstates the effect of the Federal Constitution upon any construction of that statute. Giventhat posture, I believe the Court should identify and correct the two flaws in the reasoning of the state court’smajority opinion, and remand for further review of the trial court’s disposition of this specific case.

II

In my view, the State Supreme Court erred in its federal constitutional analysis because neither the provisiongranting “any person” the right to petition the court for visitation, 137 Wash.2d, at 20, 969 P.2d, at 30, nor theabsence of a provision requiring a “threshold ··· finding of harm to the child,” ibid., provides a sufficient basisfor holding that the statute is invalid in all its applications. I believe that a facial challenge should fail whenevera statute has “a ‘plainly legitimate sweep,’ ” Washington v.Glucksberg, 521 U.S. 702, 739-740, and n. 7, 117 S.Ct.2258 (1997) (STEVENS, J., concurring in judgment).FN6 Under the Washington statute, there are plainly anynumber of cases-indeed, one suspects, the most common to arise-in which the “person” among “any” seekingvisitation is a once-custodial caregiver, an intimate relation, or even a genetic parent. Even the Court would seemto agree that in many circumstances, it would be constitutionally permissible for a court to award some visita-tion of a child to a parent or previous caregiver in cases of parental separation or divorce, cases of disputed cus-tody, cases involving temporary foster care or guardianship, and so forth. As the statute plainly sweeps in a greatdeal of the permissible, the State Supreme Court majority incorrectly concluded that a statute authorizing “anyperson” to file a petition seeking visitation privileges would invariably run afoul of the Fourteenth Amendment.

FN6. It necessarily follows that under the far more stringent demands suggested by the majority in United Statesv. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (plaintiff seeking facial invalidation “mustestablish that no set of circumstances exists under which the Act would be valid”), respondent’s facial challengemust fail.

The second key aspect of the Washington Supreme Court’s holding—that the Federal Constitution requires ashowing of actual or potential “harm” to the child before a court may order visitation continued over a parent’sobjections—finds no support in this Court’s case law. While, as the Court recognizes, the Federal Constitutioncertainly protects the parent-child relationship from arbitrary impairment by the State, see infra this page and2072, we have never held that the parent’s liberty interest in this relationship is so inflexible as to establish arigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a thresholdfinding of harm.FN7 The presumption that parental decisions generally serve the best interests of their childrenis sound, and clearly in the normal case the parent’s interest is paramount. But even a fit parent is capable oftreating a child like a mere possession.



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FN7. The suggestion by Justice THOMAS that this case may be resolved solely with reference to our decision inPierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), is unpersuasive. Pierce involveda parent’s choice whether to send a child to public or private school. While that case is a source of broad lan-guage about the scope of parents’ due process rights with respect to their children, the constitutional principlesand interests involved in the schooling context do not necessarily have parallel implications in this family lawvisitation context, in which multiple overlapping and competing prerogatives of various plausibly interestedparties are at stake.

Cases like this do not present a bipolar struggle between the parents and the State over who has final authorityto determine what is in a child’s best interests. There is at a minimum a third individual, whose interests areimplicated in every case to which the statute applies-the child.

It has become standard practice in our substantive due process jurisprudence to begin our analysis with an identi-fication of the “fundamental” liberty interests implicated by the challenged state action. See, e.g., ante, at 2059-2060(opinion of O’CONNOR, J.); Washington v.Glucksberg, 521 U.S. 702, 117 S.Ct. 2258 (1997); Planned Parenthoodof Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). My colleagues are of coursecorrect to recognize that the right of a parent to maintain a relationship with his or her child is among the inter-ests included most often in the constellation of liberties protected through the Fourteenth Amendment. Ante, at2059-2060 (opinion of O’CONNOR, J.). Our cases leave no doubt that parents have a fundamental liberty inter-est in caring for and guiding their children, and a corresponding privacy interest—absent exceptional circum-stances—in doing so without the undue interference of strangers to them and to their child. Moreover, and criticalin this case, our cases applying this principle have explained that with this constitutional liberty comes a pre-sumption (albeit a rebuttable one) that “natural bonds of affection lead parents to act in the best interests of theirchildren.” Parham v.J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); see also Casey, 505 U.S., at 895,112 S.Ct. 2791; Santosky v.Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (State may not pre-sume, at factfinding stage of parental rights termination proceeding, that interests of parent and child diverge);see also ante, at 2061-2062 (opinion of O’CONNOR, J.).

Despite this Court’s repeated recognition of these significant parental liberty interests, these interests have never beenseen to be without limits. In Lehr v.Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), for example, thisCourt held that a putative biological father who had never established an actual relationship with his child did nothave a constitutional right to notice of his child’s adoption by the man who had married the child’s mother. As thisCourt had recognized in an earlier case, a parent’s liberty interests “ ‘do not spring full-blown from the biological con-nection between parent and child. They require relationships more enduring.’ ” Id., at 260, 103 S.Ct. 2985 (quotingCaban v.Mohammed, 441 U.S. 380, 397, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979)).

Conversely, in Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), this Court con-cluded that despite both biological parenthood and an established relationship with a young child, a father’sdue process liberty interest in maintaining some connection with that child was not sufficiently powerful toovercome a state statutory presumption that the husband of the child’s mother was the child’s parent. As aresult of the presumption, the biological father could be denied even visitation with the child because, asa matter of state law, he was not a “parent.” A plurality of this Court there recognized that the parental lib-erty interest was a function, not simply of “isolated factors” such as biology and intimate connection, butof the broader and apparently independent interest in family. See, e.g., id., at 123, 109 S.Ct. 2333; see alsoLehr, 463 U.S., at 261, 103 S.Ct. 2985; Smith v.Organization of Foster Families For Equality & Reform, 431 U.S.816, 842-847, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); Moore v. East Cleveland, 431 U.S. 494, 498-504, 97 S.Ct.1932, 52 L.Ed.2d 531 (1977).

A parent’s rights with respect to her child have thus never been regarded as absolute, but rather are limited bythe existence of an actual, developed relationship with a child, and are tied to the presence or absence of someembodiment of family. These limitations have arisen, not simply out of the definition of parenthood itself, butbecause of this Court’s assumption that a parent’s interests in a child must be balanced against the State’s long-recognized interests as parens patriae, see, e.g., Reno v. Flores, 507 U.S. 292, 303-304, 113 S.Ct. 1439, 123 L.Ed.2d 1(1993); Santosky v. Kramer, 455 U.S., at 766, 102 S.Ct. 1388; Parham, 442 U.S., at 605, 99 S.Ct. 2493; Prince v.Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and, critically, the child’s own complementaryinterest in preserving relationships that serve her welfare and protection, Santosky, 455 U.S., at 760, 102 S.Ct. 1388.

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While this Court has not yet had occasion to elucidate the nature of a child’s liberty interests in preserving estab-lished familial or family-like bonds, 491 U.S., at 130, 109 S.Ct. 2333 (reserving the question), it seems to meextremely likely that, to the extent parents and families have fundamental liberty interests in preserving such inti-mate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in theequation.FN8 At a minimum, our prior cases recognizing that children are, generally speaking, constitutionallyprotected actors require that this Court reject any suggestion that when it comes to parental rights, children areso much chattel. See ante, at 2059-2060 (opinion of O’CONNOR, J.) (describing States’ recognition of “an inde-pendent third-party interest in a child”). The constitutional protection against arbitrary state interference withparental rights should not be extended to prevent the States from protecting children against the arbitrary exer-cise of parental authority that is not in fact motivated by an interest in the welfare of the child.FN9

FN8. This Court has on numerous occasions acknowledged that children are in many circumstances possessedof constitutionally protected rights and liberties. See Parham v.J.R., 442 U.S. 584, 600, 99 S.Ct. 2493, 61 L.Ed.2d 101(1979) (liberty interest in avoiding involuntary confinement); Planned Parenthood of Central Mo. v. Danforth,428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (“Constitutional rights do not mature and come into beingmagically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by theConstitution and possess constitutional rights”); Tinker v. Des Moines Independent Community School Dist.,393 U.S. 503, 506-507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (First Amendment right to political speech); In re Gault,387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (due process rights in criminal proceedings).

FN9. Cf., e.g., Wisconsin v.Yoder, 406 U.S. 205, 244-246, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (Douglas, J., dissenting)(“While the parents, absent dissent, normally speak for the entire family, the education of the child is a matteron which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanog-rapher. To do so he will have to break from the Amish tradition. It is the future of the student, not the future ofthe parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the gradeschool, then the child will be forever barred from entry into the new and amazing world of diversity that wehave today ···. It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to whatwe have said about the Bill of Rights and of the right of students to be masters of their own destiny.”) The major-ity’s disagreement with Justice Douglas in that case turned not on any contrary view of children’s interest in theirown education, but on the impact of the Free Exercise Clause of the First Amendment on its analysis of school-related decisions by the Amish community.

This is not, of course, to suggest that a child’s liberty interest in maintaining contact with a particular individualis to be treated invariably as on a par with that child’s parents’ contrary interests. Because our substantive dueprocess case law includes a strong presumption that a parent will act in the best interest of her child, it wouldbe necessary, were the state appellate courts actually to confront a challenge to the statute as applied, to con-sider whether the trial court’s assessment of the “best interest of the child” incorporated that presumption. Neitherwould I decide whether the trial court applied Washington’s statute in a constitutional way in this case, although,as I have explained, n. 3, supra, I think the outcome of this determination is far from clear. For the purpose ofa facial challenge like this, I think it safe to assume that trial judges usually give great deference to parents’wishes, and I am not persuaded otherwise here.

But presumptions notwithstanding, we should recognize that there may be circumstances in which a child hasa stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a“person” other than a parent. The almost infinite variety of family relationships that pervade our ever-changingsociety strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent’sliberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily. It isindisputably the business of the States, rather than a federal court employing a national standard, to assess in thefirst instance the relative importance of the conflicting interests that give rise to disputes such as this.FN10 Farfrom guaranteeing that parents’ interests will be trammeled in the sweep of cases arising under the statute, theWashington law merely gives an individual—with whom a child may have an established relationship—the pro-cedural right to ask the State to act as arbiter, through the entirely well-known best-interests standard, betweenthe parent’s protected interests and the child’s. It seems clear to me that the Due Process Clause of the FourteenthAmendment leaves room for States to consider the impact on a child of possibly arbitrary parental decisions thatneither serve nor are motivated by the best interests of the child.



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FN10. See Palmore v. Sidoti, 466 U.S. 429, 431, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984) (“The judgment of a statecourt determining or reviewing a child custody decision is not ordinarily a likely candidate for review by thisCourt”); cf. Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (mattersinvolving competing and multifaceted social and policy decisions best left to local decisionmaking); Regents ofUniv. of Mich. v. Ewing, 474 U.S. 214, 226, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (emphasizing our “reluctance totrench on the prerogatives of state and local educational institutions” as federal courts are ill-suited to “evaluatethe substance of the multitude of academic decisions that are made daily by” experts in the field evaluating cumu-lative information). That caution is never more essential than in the realm of family and intimate relations. Inpart, this principle is based on long-established, if somewhat arbitrary, tradition in allocating responsibility forresolving disputes of various kinds in our federal system. Ankenbrandt v.Richards, 504 U.S. 689, 112 S.Ct. 2206,119 L.Ed.2d 468 (1992). But the instinct against overregularizing decisions about personal relations is sustainedon firmer ground than mere tradition. It flows in equal part from the premise that people and their intimate asso-ciations are complex and particular, and imposing a rigid template upon them all risks severing bonds our soci-ety would do well to preserve.

Accordingly, I respectfully dissent.

Justice SCALIA, dissenting.In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” withwhich the Declaration of Independence proclaims “all men ··· are endowed by their Creator.” And in my viewthat right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says theConstitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration ofIndependence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’srefusal to “deny or disparage” other rights is far removed from affirming any one of them, and even furtherremoved from authorizing judges to identify what they might be, and to enforce the judges’ list against laws dulyenacted by the people. Consequently, while I would think it entirely compatible with the commitment to repre-sentative democracy set forth in the founding documents to argue, in legislative chambers or in electoral cam-paigns, that the State has no power to interfere with parents’ authority over the rearing of their children, I do notbelieve that the power which the Constitution confers upon me as a judge entitles me to deny legal effect tolaws that (in my view) infringe upon what is (in my view) that unenumerated right.

Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents todirect the upbringing of their children FN1-two of them from an era rich in substantive due process holdings thathave since been repudiated. See Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923);Pierce v.Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Wisconsin v.Yoder, 406 U.S. 205,232-233, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Cf. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) (overruling Adkins v. Children’s Hospital of D. C., 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785(1923)). The sheer diversity of today’s opinions persuades me that the theory of unenumerated parental rightsunderlying these three cases has small claim to stare decisis protection. A legal principle that can be thought toproduce such diverse outcomes in the relatively simple case before us here is not a legal principle that hasinduced substantial reliance. While I would not now overrule those earlier cases (that has not been urged), nei-ther would I extend the theory upon which they rested to this new context.

FN1. Whether parental rights constitute a “liberty” interest for purposes of procedural due process is a somewhatdifferent question not implicated here. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), pur-ports to rest in part upon that proposition, see id., at 651-652, 92 S.Ct. 1208; but see Michael H. v. Gerald D.,491 U.S. 110, 120-121, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality opinion), though the holding is independentlysupported on equal protection grounds, see Stanley, supra, at 658, 92 S.Ct. 1208.

Judicial vindication of “parental rights” under a Constitution that does not even mention them requires (as JusticeKENNEDY’S opinion rightly points out) not only a judicially crafted definition of parents, but also-unless, as noone believes, the parental rights are to be absolute-judicially approved assessments of “harm to the child” andjudicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoptionlater found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents.If we embrace this unenumerated right, I think it obvious-whether we affirm or reverse the judgment here, orremand as Justice STEVENS or Justice KENNEDY would do-that we will be ushering in a new regime of judicially

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prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better atthis than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribedarea, of being able to correct their mistakes in a flash, and of being removable by the people.FN2

FN2. I note that respondent is asserting only, on her own behalf, a substantive due process right to direct theupbringing of her own children, and is not asserting, on behalf of her children, their First Amendment rights ofassociation or free exercise. I therefore do not have occasion to consider whether, and under what circumstances,the parent could assert the latter enumerated rights.

For these reasons, I would reverse the judgment below.

Justice KENNEDY, dissenting.The Supreme Court of Washington has determined that petitioners Jenifer and Gary Troxel have standing understate law to seek court-ordered visitation with their grandchildren, notwithstanding the objections of the chil-dren’s parent, respondent Tommie Granville. The statute relied upon provides:

“Any person may petition the court for visitation rights at any time including, but not limited to, custody pro-ceedings. The court may order visitation rights for any person when visitation may serve the best interest of thechild whether or not there has been any change of circumstances.” Wash. Rev.Code § 26.10.160(3) (1994).

After acknowledging this statutory right to sue for visitation, the State Supreme Court invalidated the statute asviolative of the United States Constitution, because it interfered with a parent’s right to raise his or her child freefrom unwarranted interference. In re Smith, 137 Wash.2d 1, 969 P.2d 21 (1998). Although parts of the court’sdecision may be open to differing interpretations, it seems to be agreed that the court invalidated the statute onits face, ruling it a nullity.

The first flaw the State Supreme Court found in the statute is that it allows an award of visitation to a nonparentwithout a finding that harm to the child would result if visitation were withheld; and the second is that the statuteallows any person to seek visitation at any time. In my view the first theory is too broad to be correct, as it appearsto contemplate that the best interests of the child standard may not be applied in any visitation case. I acknowl-edge the distinct possibility that visitation cases may arise where, considering the absence of other protection forthe parent under state laws and procedures, the best interests of the child standard would give insufficient pro-tection to the parent’s constitutional right to raise the child without undue intervention by the State; but it is quitea different matter to say, as I understand the Supreme Court of Washington to have said, that a harm to the childstandard is required in every instance.

Given the error I see in the State Supreme Court’s central conclusion that the best interests of the child standardis never appropriate in third-party visitation cases, that court should have the first opportunity to reconsider thiscase. I would remand the case to the state court for further proceedings. If it then found the statute has beenapplied in an unconstitutional manner because the best interests of the child standard gives insufficient protectionto a parent under the circumstances of this case, or if it again declared the statute a nullity because the statuteseems to allow any person at all to seek visitation at any time, the decision would present other issues whichmay or may not warrant further review in this Court. These include not only the protection the Constitution givesparents against state-ordered visitation but also the extent to which federal rules for facial challenges to statutescontrol in state courts. These matters, however, should await some further case. The judgment now under reviewshould be vacated and remanded on the sole ground that the harm ruling that was so central to the SupremeCourt of Washington’s decision was error, given its broad formulation.

Turning to the question whether harm to the child must be the controlling standard in every visitation proceeding,there is a beginning point that commands general, perhaps unanimous, agreement in our separate opinions: Asour case law has developed, the custodial parent has a constitutional right to determine, without undue interfer-ence by the state, how best to raise, nurture, and educate the child. The parental right stems from the libertyprotected by the Due Process Clause of the Fourteenth Amendment. See, e.g., Meyer v. Nebraska, 262 U.S. 390,399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571,69 L.Ed. 1070 (1925); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Stanleyv. Illinois, 405 U.S. 645, 651-652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Wisconsin v.Yoder, 406 U.S. 205, 232-233,92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Santosky v.Kramer, 455 U.S. 745, 753-754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendmentprinciples protecting freedom of speech, belief, and religion. Their formulation and subsequent interpretation



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have been quite different, of course; and they long have been interpreted to have found in FourteenthAmendment concepts of liberty an independent right of the parent in the “custody, care and nurture of the child,”free from state intervention. Prince, supra, at 166, 64 S.Ct. 438. The principle exists, then, in broad formulation;yet courts must use considerable restraint, including careful adherence to the incremental instruction given bythe precise facts of particular cases, as they seek to give further and more precise definition to the right.

The State Supreme Court sought to give content to the parent’s right by announcing a categorical rule that thirdparties who seek visitation must always prove the denial of visitation would harm the child. After reviewing someof the relevant precedents, the Supreme Court of Washington concluded “ ‘[t]he requirement of harm is the soleprotection that parents have against pervasive state interference in the parenting process.’ ” 137 Wash.2d, at 19-20,969 P.2d, at 30 (quoting Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn.1993)). For that reason, “[s]hort of preventingharm to the child,” the court considered the best interests of the child to be “insufficient to serve as a compellingstate interest overruling a parent’s fundamental rights.” 137 Wash.2d, at 20, 969 P.2d, at 30.

While it might be argued as an abstract matter that in some sense the child is always harmed if his or her bestinterests are not considered, the law of domestic relations, as it has evolved to this point, treats as distinct thetwo standards, one harm to the child and the other the best interests of the child. The judgment of the SupremeCourt of Washington rests on that assumption, and I, too, shall assume that there are real and consequential dif-ferences between the two standards.

On the question whether one standard must always take precedence over the other in order to protect the rightof the parent or parents, “[o]ur Nation’s history, legal traditions, and practices” do not give us clear or definitiveanswers. Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258 (1997). The consensus among courts andcommentators is that at least through the 19th century there was no legal right of visitation; court-ordered visi-tation appears to be a 20th-century phenomenon. See, e.g., 1 D. Kramer, Legal Rights of Children 124, 136(2d ed.1994); 2 J. Atkinson, Modern Child Custody Practice § 8.10 (1986). A case often cited as one of theearliest visitation decisions, Succession of Reiss, 46 La. Ann. 347, 353, 15 So. 151, 152 (1894), explained that“the obligation ordinarily to visit grandparents is moral and not legal”-a conclusion which appears consistentwith that of American common-law jurisdictions of the time. Early 20th-century exceptions did occur, often incases where a relative had acted in a parental capacity, or where one of a child’s parents had died. See Douglassv. Merriman, 163 S.C. 210, 161 S.E. 452 (1931) (maternal grandparent awarded visitation with child when cus-tody was awarded to father; mother had died); Solomon v. Solomon, 319 Ill.App. 618, 49 N.E.2d 807 (1943)(paternal grandparents could be given visitation with child in custody of his mother when their son was sta-tioned abroad; case remanded for fitness hearing); Consaul v. Consaul, 63 N.Y.S.2d 688 (Sup.Ct. JeffersonCty.1946) (paternal grandparents awarded visitation with child in custody of his mother; father had becomeincompetent). As a general matter, however, contemporary state-court decisions acknowledge that “[h]istorically,grandparents had no legal right of visitation,” Campbell v. Campbell, 896 P.2d 635, 642, n. 15 (Utah App.1995),and it is safe to assume other third parties would have fared no better in court.

To say that third parties have had no historical right to petition for visitation does not necessarily imply, as theSupreme Court of Washington concluded, that a parent has a constitutional right to prevent visitation in all casesnot involving harm. True, this Court has acknowledged that States have the authority to intervene to preventharm to children, see, e.g., Prince, supra, at 168-169, 64 S.Ct. 438; Yoder, supra, at 233-234, 92 S.Ct. 1526, butthat is not the same as saying that a heightened harm to the child standard must be satisfied in every case inwhich a third party seeks a visitation order. It is also true that the law’s traditional presumption has been “thatnatural bonds of affection lead parents to act in the best interests of their children,” Parham v. J.R., 442 U.S. 584,602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); and “[s]imply because the decision of a parent is not agreeable to achild or because it involves risks does not automatically transfer the power to make that decision from the par-ents to some agency or officer of the state,” id., at 603, 99 S.Ct. 2493. The State Supreme Court’s conclusion thatthe Constitution forbids the application of the best interests of the child standard in any visitation proceeding,however, appears to rest upon assumptions the Constitution does not require.

My principal concern is that the holding seems to proceed from the assumption that the parent or parentswho resist visitation have always been the child’s primary caregivers and that the third parties who seek vis-itation have no legitimate and established relationship with the child. That idea, in turn, appears influencedby the concept that the conventional nuclear family ought to establish the visitation standard for everydomestic relations case. As we all know, this is simply not the structure or prevailing condition in many

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households. See, e.g., Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). For manyboys and girls a traditional family with two or even one permanent and caring parent is simply not the reality oftheir childhood. This may be so whether their childhood has been marked by tragedy or filled with consid-erable happiness and fulfillment.

Cases are sure to arise-perhaps a substantial number of cases-in which a third party, by acting in a caregivingrole over a significant period of time, has developed a relationship with a child which is not necessarily subjectto absolute parental veto. See Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989)(putative natural father not entitled to rebut state-law presumption that child born in a marriage is a child of themarriage); Quilloin v.Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (best interests standard sufficientin adoption proceeding to protect interests of natural father who had not legitimated the child); see also Lehr v.Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (“ ‘[T]he importance of the familial relationship,to the individuals involved and to the society, stems from the emotional attachments that derive from the inti-macy of daily association, and from the role it plays in “promot[ing] a way of life” through the instruction of chil-dren ··· as well as from the fact of blood relationship’ ” (quoting Smith v. Organization of Foster Families ForEquality & Reform, 431 U.S. 816, 844, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), in turn quoting Yoder, 406 U.S., at 231-233,92 S.Ct. 1526)). Some pre-existing relationships, then, serve to identify persons who have a strong attachment tothe child with the concomitant motivation to act in a responsible way to ensure the child’s welfare. As the StateSupreme Court was correct to acknowledge, those relationships can be so enduring that “in certain circumstanceswhere a child has enjoyed a substantial relationship with a third person, arbitrarily depriving the child of therelationship could cause severe psychological harm to the child,” 137 Wash.2d, at 20, 969 P.2d, at 30; and harmto the adult may also ensue. In the design and elaboration of their visitation laws, States may be entitled to con-sider that certain relationships are such that to avoid the risk of harm, a best interests standard can be employedby their domestic relations courts in some circumstances.

Indeed, contemporary practice should give us some pause before rejecting the best interests of the child stan-dard in all third-party visitation cases, as the Washington court has done. The standard has been recognized formany years as a basic tool of domestic relations law in visitation proceedings. Since 1965 all 50 States haveenacted a third-party visitation statute of some sort. See ante, at 2064, 969 P.2d 21, n. (plurality opinion). Eachof these statutes, save one, permits a court order to issue in certain cases if visitation is found to be in the bestinterests of the child. While it is unnecessary for us to consider the constitutionality of any particular provisionin the case now before us, it can be noted that the statutes also include a variety of methods for limiting parents’exposure to third-party visitation petitions and for ensuring parental decisions are given respect. Many Stateslimit the identity of permissible petitioners by restricting visitation petitions to grandparents, or by requiring peti-tioners to show a substantial relationship with a child, or both. See, e.g., Kan. Stat. Ann. § 38-129 (1993 andSupp.1998) (grandparent visitation authorized under certain circumstances if a substantial relationship exists);N.C. Gen.Stat. §§ 50-13.2, 50-13.2A, 50-13.5 (1999) (same); Iowa Code § 598.35 (Supp.1999) (same; visitation alsoauthorized for great-grandparents); Wis. Stat. § 767.245 (Supp.1999) (visitation authorized under certain circumstancesfor “a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-childrelationship with the child”). The statutes vary in other respects-for instance, some permit visitation petitions whenthere has been a change in circumstances such as divorce or death of a parent, see, e.g., N.H.Rev.Stat. Ann.§ 458:17-d (1992), and some apply a presumption that parental decisions should control, see, e.g., Cal.Fam.Code Ann. §§ 3104(e)-(f) (West 1994); R.I. Gen. Laws § 15-5-24.3(a)(2)(v) (Supp.1999). Georgia’s is the sole statelegislature to have adopted a general harm to the child standard, see Ga.Code Ann. § 19-7-3(c) (1999), and it did soonly after the Georgia Supreme Court held the State’s prior visitation statute invalid under the Federal and GeorgiaConstitutions, see Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769, cert. denied, 516 U.S. 942, 116 S.Ct. 377,133 L.Ed.2d 301 (1995).

In light of the inconclusive historical record and case law, as well as the almost universal adoption of the bestinterests standard for visitation disputes, I would be hard pressed to conclude the right to be free of such reviewin all cases is itself “ ‘implicit in the concept of ordered liberty.’ ” Glucksberg, 521 U.S., at 721, 117 S.Ct. 2258(quoting Palko v.Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). In my view, it would be moreappropriate to conclude that the constitutionality of the application of the best interests standard depends onmore specific factors. In short, a fit parent’s right vis-a-vis a complete stranger is one thing; her right vis-a-visanother parent or a de facto parent may be another. The protection the Constitution requires, then, must be elab-orated with care, using the discipline and instruction of the case law system. We must keep in mind that family



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courts in the 50 States confront these factual variations each day, and are best situated to consider the unpre-dictable, yet inevitable, issues that arise. Cf. Ankenbrandt v. Richards, 504 U.S. 689, 703-704, 112 S.Ct. 2206,119 L.Ed.2d 468 (1992).

It must be recognized, of course, that a domestic relations proceeding in and of itself can constitute state inter-vention that is so disruptive of the parent-child relationship that the constitutional right of a custodial parent tomake certain basic determinations for the child’s welfare becomes implicated. The best interests of the child stan-dard has at times been criticized as indeterminate, leading to unpredictable results. See, e.g., American LawInstitute, Principles of the Law of Family Dissolution 2, and n. 2 (Tent. Draft No. 3, Mar. 20, 1998). If a singleparent who is struggling to raise a child is faced with visitation demands from a third party, the attorney’s feesalone might destroy her hopes and plans for the child’s future. Our system must confront more often the realitythat litigation can itself be so disruptive that constitutional protection may be required; and I do not discount thepossibility that in some instances the best interests of the child standard may provide insufficient protection tothe parent-child relationship. We owe it to the Nation’s domestic relations legal structure, however, to proceedwith caution.

It should suffice in this case to reverse the holding of the State Supreme Court that the application of the bestinterests of the child standard is always unconstitutional in third-party visitation cases. Whether, under the cir-cumstances of this case, the order requiring visitation over the objection of this fit parent violated the Constitutionought to be reserved for further proceedings. Because of its sweeping ruling requiring the harm to the child stan-dard, the Supreme Court of Washington did not have the occasion to address the specific visitation order theTroxels obtained. More specific guidance should await a case in which a State’s highest court has considered allof the facts in the course of elaborating the protection afforded to parents by the laws of the State and by theConstitution itself. Furthermore, in my view, we need not address whether, under the correct constitutional stan-dards, the Washington statute can be invalidated on its face. This question, too, ought to be addressed by thestate court in the first instance.

In my view the judgment under review should be vacated and the case remanded for further proceedings.

25 L.R.A. 798, 46 La.Ann. 347, 15 So. 151

Supreme Court of Louisiana.Succession of REISS.

Rehearing refused March 12, 1894.No. 11,347.

Feb. 12, 1894.

Appeal from district court, parish of Orleans; George H. Theard, Judge.In the matter of the succession of Louise Marie Reiss, wife of Henry J. Rolling, Jr. On rule by the mother of saiddecedent to compel said Rolling to allow his children to visit her. From the judgment said plaintiff in rule appeals.Reversed.

Syllabus by the Court

Plaintiff, the mother-in-law, appeals from a judgment ordering her son-in-law to send his children, aged, respec-tively, six and eight years, issue of the marriage with her late daughter, to visit her, and directing further that sheshall visit the grandchildren at their father’s home in alternate weeks, on such days as the parties may agree. She complains of the judgment in so far as she is to visit the children, and asks that it be limited to the impera-tive duty of the children to visit her. There is very little difference in principle between the parties as disclosedby the evidence. The husband does not deny the filial piety that is due by the children. Differences and incom-patibilities have arisen shocking to the grandparent and that may prove painful, in course of time, to the chil-dren. The question is of first impression in the courts of this state. In France, under similar laws, the courts andcommentators greatly differ upon the subject. There are well-considered decisions holding that the precept,‘Honor thy father and thy mother,’ as embodied in the Civil Code, includes the grandmother or grandfather as alegal obligation. Other courts and certain writers lay down the principle that under a law of nature the child is

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under the authority of the father or mother alone, and that the law has conformed to natural law, and that thejudge has no authority to intervene. The court of the first instance has pronounced judgment based upon the prin-ciples that the parties in their testimony admit are correct, but which they have not followed. On appeal to thiscourt it does not appear that there is cause for judicial intervention.

Aristee L. Tissot, for appellant.

Bernard McCloskey, for appellee.

BREAUX, J.The father and tutor of two minor children, one eight and the other six years of age, is defendant in a rule issuedat the instance of their maternal grandmother to compel him to send his children to visit her at her residenceand domicile on such days and at such hours as the court may deem proper to determine. She alleges that hearbitrarily, wantonly, maliciously, and cruelly denies her the privilege of seeing her grandchildren, thus abusingparental authority, controllable by the courts. The defendant denies that he has refused to mover in rule the priv-ilege of visiting his children, and averred that he is willing that she shall visit his children. The judgment of thecourt a qua makes the rule absolute, and orders the father to send the children to visit their grandmother, andfurther orders that the grandmother shall visit the children at their father’s home, in alternate weeks, on suchdays as the parties may agree, provided the visits do not in any manner interfere with the schooling of the chil-dren. Before this court the appellant asks that her rule be made absolute, commanding the defendant to sendthe children to visit her, without reference to any visit by her. The appellee, in his answer to the appeal, praysfor a dismissal of the rule. The mother of these children has been dead about six years. They live with the father.The relations between the son-in-law and mother-in-law are not only strained, but acrimonious. More than threeyears have elapsed since he has sent his children to visit their grandmother. She has requested him, she testifies,to send them, but he failed to comply with the request. The defendant’s household consists of his father andother members of his family. They and the children live at the same residence. The relations of plaintiff with themembers of the son-in-law’s family are not, it seems, of the most pleasant character. The plaintiff, by her testi-mony, creates the impression that the coolness and feeling existing would render the visit anything but pleas-ant. Moments with her grandchildren while on such visits, which, under other circumstances, would be highlyenjoyed, at this time would possibly only cause irritation and bad blood. The differences are, we are led tobelieve, of an entirely personal character, and have no reference to the standing of the parties, in regard to whichthere is not the most remote suggestion. The plaintiff states as a witness that she does not entertain any objec-tion on that score. The witness testifies: ‘Q. Have you visited those children at the house of their father? A. No,sir. Q. Why not? A. Why not? Because I thought they should be sent to see me, and not to go there and see them.Q. Why not call upon these children at the home of their father, to see them? A. Because I thought it was properto send them to me. Q. Is that the only reason? A. That is my reason that I wish to give. Q. Do I understand you,then, as refusing to visit those children at the house of their father? A. No, sir, I don’t refuse; but I have otherreasons. I may be wrong, but at the same time I have never visited the Rolling family; and I did not think it wasmy place to go to see those children there, as I think their place was to come and see me.’ When examined asa witness, the son-in-law, in answer to the question: ‘Q. Don’t you think that there is a law of nature that chil-dren should visit their grandparents? A. I think that’s right.’ Manifestly the difference between these parties isinconsiderable, and would not be sufficient to arrest attention, were it not that it affects the good relation andintimacy that should prevail between these little children and their grandmother. While we appreciate the affec-tion that moves her to seek the occasional company of the offspring of her daughter, this court’s jurisdiction doesnot include the cause pleaded. The issue is not incidental to any other cause. However disinclined we are to dis-countenance causes of action such as the one under consideration,-for they are inspired by a true and commendableimpulse, we find no authority in law to entertain jurisdiction of the issue presented. The question involved is resnova in this state.

In interpreting articles of the Civil Code in France similar to ours on the subject, the courts and commentatorsgreatly differ. There is respectable authority listed in favor of the precept of Deuteronomy, ‘Honora patrem tuumet matrem,’ embodied in the Civil Code as including also the grandfather and the grandmother. They construeunder the articles of this Code that the obligation involved in the case at bar, legal in so far as relates to the fatherand mother, is legal also in so far as relates to the grandfather and the grandmother, and that the court can intervenefor its enforcement without regard to the will of the father or mother. Other courts hold, and other commentatorsstate, that under the law of nature the child is under the authority of the father or mother after the death of either.We translate from 4 Laurent, p. 362, who propounds the question, can the ascendant demand that the authority



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of the father and mother be limited? In truth, the ascendants have certain rights that the law, in accord with nature,gives them; but only when the father and mother are dead, or are incapable of manifesting their will. During theexistence of the father and mother, the law properly accords them no authority over the children. To permit themto intervene would occasion embarrassment and annoyance; even more, it would injuriously hinder proper pater-nal authority by dividing it. The authority sought is said to be in the interest of the children. Are the children inter-ested in anything in the nature of a conflict of authority? Without doubt it is desirable that the ties of affection thatnature creates between the ascendants and their grandchildren be strengthened and unceasing, but, if there is aconflict, the father alone or the mother should be the judge. The law gives no right of action to the grandparents.The father may have good reasons to avoid all contact between his children and their grandparents, either thathe fears that they may inculcate bad principles, or that they will unsettle the respect and affection due him. Heowes no account to any one for his motives. They may be so intimate that the honor of the family requires thatthey shall remain a secret. Shall we say that the judge shall be the arbitrator between the grandparent and thefather? The court of Bordeaux replies that the intervention of the tribunals would, as a consequence, render the dissensions of the family more pronounced by delivering them to the public. Other views than these aboveexpressed, says the commentor, would be proper on the part of the legislator. We do not understand them whenemanating from interpreters of the present laws. We refer approvingly to the French authorities only so far as theylay down the principles that there is not a vinculum juris; that the obligation ordinarily to visit grandparents ismoral, and not legal. There may be cases of downright wrong and inhumanity demanding judicial intervention,even to the extent of dismissing the father and tutor from his trust. The case at bar does not disclose so grave anissue. Ill feeling and bad blood separate the father and grandmother. The former admits the respect due to thelatter by his children. The ties of nature will prove more efficacious in restoring kindly family relations thanthe coercive measures which must follow judicial intervention. It is therefore ordered, adjudge, and decreed thatthe judgment of the court a qua be annulled and avoided, and that the rule be dismissed, at plaintiff’s costs inboth courts.

Chapter 12

Ingaglio v.Kraeer Funeral Home, 515 So.2d 428, (1987)

Perkins, et al. v. Johnson, et al., 866 So.2d 1146 (2003)

Birch v.Birch, 204 N.Y.S. 735 (1924)

Wilson v.Houston Funeral Home, 42 Cal. App.4th 1124, 50 Cal. Rptr. 2d 169 (1996)

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Documents

G ONLINE COMPANION TO ACCOMPANY ELDER LAW Rosenberg, Bickes & Johnson, Chartered, Decatur (Wayne L. Bickes, Decatur, of counsel), for appellees. KLUCZYNSKI, Justice: Plaintiff, Gertrude