Animal Science Products, Inc., et al. v. Hebei Welcome Pharmaceutical Co. Ltd. et al.

Certiorari To The United States Court Of Appeals For The Second Circuit

No. 16-1220. Argued April 24, 2018--Decided June 14, 2018

Petitioners, U. S.-based purchasers of vitamin C (U. S. purchasers), filed a class-action suit, alleging that four Chinese corporations that manufacture and export the nutrient (Chinese sellers), including the two respondents here, had agreed to fix the price and quantity of vitamin C exported to the United States, in violation of §1 of the Sherman Act. The Chinese sellers moved to dismiss the complaint on the ground that Chinese law required them to fix the price and quantity of vitamin C exports, thus shielding them from liability under U. S. antitrust law. The Ministry of Commerce of the People’s Republic of China (Ministry) filed an amicus brief in support of the motion, explaining that it is the administrative authority authorized to regulate foreign trade, and stating that the alleged conspiracy in restraint of trade was actually a pricing regime mandated by the Chinese Government. The U. S. purchasers countered that the Ministry had identified no law or regulation ordering the Chinese sellers’ price agreement, highlighted a publication announcing that the Chinese sellers had agreed to control the quantity and rate of exports without government intervention, and presented supporting expert testimony.

The District Court denied the Chinese sellers’ motion in relevant part, concluding that it did not regard the Ministry’s statements as “conclusive,” particularly in light of the U. S. purchasers’ evidence. When the Chinese sellers subsequently moved for summary judgment, the Ministry submitted another statement, reiterating its stance, and the U. S. purchasers pointed to China’s statement to the World Trade Organization that it ended its export administration of vitamin C in 2002. The court denied this motion as well. The case was then tried to a jury, which returned a verdict for the U. S. purchasers.

The Second Circuit reversed, holding that the District Court erred by denying the Chinese sellers’ motion to dismiss the complaint. When a foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, the court concluded, federal courts are “bound to defer” to the foreign government’s construction of its own law, whenever that construction is “reasonable.” Inspecting only the Ministry’s brief and the sources cited therein, the court found the Ministry’s account of Chinese law “reasonable.”

Held: A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but the court is not bound to accord conclusive effect to the foreign government’s statements.

Rule 44.1 fundamentally changed the mode of determining foreign law in federal courts. Before adoption of the rule in 1966, a foreign nation’s laws had to be “proved as facts.” Talbot v. Seeman, 1 Cranch 1, 38. Rule 44.1, in contrast, specifies that a court’s determination of foreign law “must be treated as a ruling on a question of law.” And in ascertaining foreign law, courts are not limited to materials submitted by the parties, but “may consider any relevant material or source.” Appellate review, as is true of domestic law determinations, is de novo. The purpose of these changes was to align, to the extent possible, the process for determining alien law and the process for determining domestic law.

Neither Rule 44.1 nor any other rule or statute addresses the weight a federal court determining foreign law should give to the views presented by a foreign government. In the spirit of “international comity,” Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 543, and n. 27, a federal court should carefully consider a foreign state’s views about the meaning of its own laws. The appropriate weight in each case, however, will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials. No single formula or rule will fit all cases, but relevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.

Judged in this light, the Second Circuit’s unyielding rule is inconsistent with Rule 44.1 and, tellingly, with this Court’s treatment of analogous submissions from States of the United States. If the relevant state law is established by a decision of “the State’s highest court,” that decision is “binding on the federal courts,” Wainwright v. Goode, 464 U. S. 78, 84, but views of the State’s attorney general, while attracting “respectful consideration,” do not garner controlling weight, Arizonans for Official English v. Arizona, 520 U. S. 43, 76–77, n. 30. Furthermore, because the Second Circuit riveted its attention on the Ministry’s submission, it did not address evidence submitted by the U. S. purchasers. The court also misperceived the pre-Rule 44.1 decision of United States v. Pink, 315 U. S. 203. Under the particular circumstances of that case, this Court found conclusive a declaration from the government of the Russian Socialist Federal Soviet Republic on the extraterritorial effect of a decree nationalizing assets: The declaration was obtained by the United States through official “diplomatic channels,” id., at 218; there was no indication that the declaration was inconsistent with the Russian Government’s past statements; and the declaration was consistent with expert evidence in point.

The Second Circuit expressed concern about reciprocity, but the United States has not historically argued that foreign courts are bound to accept its characterizations or precluded from considering other relevant sources. International practice is also inconsistent with the Second Circuit’s rigid rule. Pp. 7–12.

837 F. 3d 175, vacated and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court.


Minnesota Voters Alliance et al. v. Mansky et al.

Certiorari To The United States Court Of Appeals For The Eighth Circuit

No. 16-1435. Argued February 28, 2018--Decided June 14, 2018

Minnesota law prohibits individuals, including voters, from wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day. Minn. Stat. §211B.11(1) (Supp. 2017). This “political apparel ban” covers articles of clothing and accessories with political insignia upon them. State election judges have the authority to decide whether a particular item falls within the ban. Violators are subject to a civil penalty or prosecution for a petty misdemeanor.

Days before the November 2010 election, petitioner Minnesota Voters Alliance (MVA) and other plaintiffs challenged the ban in Federal District Court on First Amendment grounds. In response to the lawsuit, the State distributed an Election Day Policy to election officials providing guidance on enforcement of the ban. The Election Day Policy specified examples of prohibited apparel to include items displaying the name of a political party, items displaying the name of a candidate, items supporting or opposing a ballot question, “[i]ssue oriented material designed to influence or impact voting,” and “[m]aterial promoting a group with recognizable political views.” App. to Pet. for Cert. I–1 to I–2. On Election Day, some voters ran into trouble with the ban, including petitioner Andrew Cilek, who allegedly was turned away from the polls for wearing a “Please I. D. Me” button and a T-shirt bearing the words “Don’t Tread on Me” and a Tea Party Patriots logo.

MVA and the other plaintiffs argued that the ban was unconstitutional both on its face and as applied to their particular items of apparel. The District Court granted the State’s motion to dismiss, and the Eighth Circuit affirmed the dismissal of the facial challenge and remanded the case for further proceedings on the as-applied challenge. The District Court granted summary judgment to the State on the as-applied challenge, and the Eighth Circuit affirmed. MVA, Cilek, and petitioner Susan Jeffers (collectively MVA) petitioned for review of their facial First Amendment claim only.

Held: Minnesota’s political apparel ban violates the Free Speech Clause of the First Amendment. Pp. 7–19.

(a) Because the political apparel ban applies only in a specific location—the interior of a polling place—it implicates the Court’s “ ‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678. A polling place in Minnesota qualifies as a nonpublic forum under the Court’s precedents. As such it may be subject to content-based restrictions on speech, see, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806–811, so long as the restrictions are “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46. Because the text of the statute makes no distinction based on the speaker’s political persuasion, the question is whether the apparel ban is “reasonable in light of the purpose served by the forum”: voting. Cornelius, 473 U. S., at 806. Pp. 7–9.

(b) Minnesota’s prohibition on political apparel serves a permissible objective. In Burson v. Freeman, 504 U. S. 191, the Court upheld a Tennessee law imposing a 100-foot zone around polling place entrances in which no person could solicit votes, distribute campaign materials, or “display . . . campaign posters, signs or other campaign materials.” 504 U. S., at 193–194 (plurality opinion). In finding that the law withstood even strict scrutiny, the Burson plurality—whose analysis was endorsed by Justice Scalia’s opinion concurring in the judgment—emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee’s determination that a campaign-free zone outside the polls was necessary to secure the advantages of the secret ballot and protect the right to vote.

MVA argues that Burson considered only active campaigning outside the polling place by campaign workers and others trying to engage voters approaching the polls, while Minnesota’s ban prohibits passive self-expression by voters themselves when voting. But although the plurality and Justice Scalia in Burson did not expressly address the application of the Tennessee law to apparel—or consider the interior of the polling place as opposed to its environs—the Tennessee law swept broadly to ban even the plain “display” of a campaign-related message, and the Burson Court upheld the law in full. The plurality’s conclusion that the State was warranted in designating an area for the voters as “their own” as they enter the polling place, id., at 210, suggests an interest more significant, not less, within that place.

No basis exists for rejecting Minnesota’s determination that some forms of campaign advocacy should be excluded from the polling place in order to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, and the State may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. And while the Court has noted the “nondisruptive” nature of expressive apparel in more mundane settings, see, e.g., Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 576, those observations do not speak to the unique context of a polling place on Election Day. Pp. 9–12.

(c) But the line the State draws must be reasonable. The State therefore must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. The unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail this test.

The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” Brief for Respondents 13. At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.

The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable.

The next broad category in the Election Day Policy—any item “promoting a group with recognizable political views”—makes matters worse. The State does not confine that category to groups that have endorsed a candidate or taken a position on a ballot question. As a result, any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue confronting voters.” The State represents that the ban is limited to apparel promoting groups with “well-known” political positions. But that requirement only increases the potential for erratic application, as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it.

It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576. The discretion election judges exercise in enforcing the ban must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it. Thus, if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one offered by Minnesota here. Pp. 12–19.

849 F. 3d 749, reversed and remanded.

Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, Alito, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Breyer, J., joined.