OCTOBER TERM, 2002
Syllabus
PIERCE COUNTY, WASHINGTON
v. GUILLEN, LEGAL GUARDIAN OF
GUILLEN ET AL., MINORS, ET AL.
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 01-1229. Argued November 4, 2002-Decided January 14,2003
As part of its effort to improve the safety of the Nation's
highways, Congress adopted the Hazard Elimination Program
(Program), 23 U. S. C. § 152, which provides state and local
governments with funding to improve the most dangerous sections of
their roads. To be eligible for such funding, a government must
undertake a thorough evaluation of its public roads. Because of
States' concerns that the absence of confidentiality with respect
to § 152's compliance measures would increase the liability risk
for accidents that took place at hazardous locations before
improvements could be made and Department of Transportation's
concerns that the States' reluctance to be forthcoming in their
data collection efforts undermined the Program's effectiveness,
Congress, in 1987, adopted §409, which provided that materials
"compiled" for § 152 purposes "shall not be admitted into evidence
in Federal or State court." Responding to subsequent court
decisions holding that § 409 did not apply to pretrial discovery
and protected only materials that an agency actually generated for
§ 152 purposes, not documents that the agency collected to prepare
its § 152 application, Congress expressly made the statute
applicable to pretrial discovery in 1991 and added the phrase "or
collected" after the word "compiled" in 1995. Several months before
respondent Ignacio Guillen's wife died in an automobile accident at
an intersection in petitioner county, petitioner's § 152 funding
request for the intersection was denied. Its second request was
approved three weeks after the accident. Petitioner declined to
provide respondents' counsel with information about accidents at
the intersection, asserting that any relevant information was
protected by § 409. Respondents then filed an action in Washington
state court, alleging that petitioner's refusal to disclose
violated the State's Public Disclosure Act (PDA). The trial court
granted respondents summary judgment, ordering petitioner to
disclose five documents and pay respondents' attorney's fees. While
petitioner's appeal was pending, respondents filed another
state-court action, alleging that petitioner had been negligent in
failing to install proper traffic controls at the intersection.
Petitioner refused to comply with their discovery request for
information regarding accidents at the intersection, and
respondents
130
Syllabus
successfully sought an order to compel. The State Court of
Appeals granted petitioner's motion for discretionary appellate
review of the interlocutory order, consolidated this and the PDA
appeals, and in large part affirmed, concluding that four of the
documents requested in the PDA action were not protected. On
further appeal, the Washington Supreme Court determined that
disclosure under the relevant state laws would be appropriate only
if the requested materials were not protected by § 409; that
protection under § 409, as amended in 1995, turned on whether the
documents were collected for § 152 purposes, without regard to the
identity of the documents' custodian; and that the 1995 amendment's
adoption exceeded Congress' powers under the Spending, Commerce,
and Necessary and Proper Clauses. It therefore vacated the lower
court's judgment and remanded the case.
Held:
1. This Court lacks jurisdiction to hear the tort portion of the
case but has jurisdiction to hear the PDA portion. Certain
state-court judgments can be treated as final for jurisdictional
purposes even though further proceedings are to take place in the
state courts.
Cox Broadcasting Corp. v.
Cohn,
420 U. S. 469,
477-483 (outlining four exceptions to the finality rule). In the
tort action, the Washington Supreme Court resolved only a discovery
dispute; it did not determine the litigation's final outcome. And
the
Cox exceptions do not apply to that action. Accordingly,
this Court dismisses the writ of certiorari with respect to that
action for want of jurisdiction. However, the PDA action falls
squarely under the first
Cox exception. The State Supreme
Court's ruling that the 1995 amendment to § 409 was invalid, which
left four documents subject to disclosure under the PDA and only
the amount of attorney's fees remaining to be decided on remand, is
"conclusive" as to the federal issue and "the outcome of further
proceedings preordained," id., at 479. Pp. 140-143.
2. Both the original § 409 and the 1995 amendment fall within
Congress' Commerce Clause power. Pp. 143-148.
(a) Before addressing the constitutional question, this Court
must determine § 409's scope. Evidentiary privileges, such as §
409, must be construed narrowly because they impede the search for
the truth. See
Baldrige v.
Shapiro, 455 U. S. 345, 360. This
Court agrees with the United States that § 409 protects only
information compiled or collected for § 152 purposes, but does not
protect information that was compiled or collected for purposes
unrelated to § 152, as held by agencies that compiled or collected
that information, even if the information was at some point
"collected" by another agency for § 152 purposes. Although
respondents offer the narrowest interpretation of § 409-that § 409
protects only materials actually created by the agency responsible
for seeking § 152 funding-their reading leaves the 1995 amendment
(changing
131
"compiled" to "compiled or collected") with no real and
substantial effect. By contrast, petitioner's reading-that a
document initially prepared by an agency for purposes unrelated to
§ 152, and held by that agency, becomes protected under § 409 when
a copy of that document is collected by another agency for § 152
purposes-gives the statute too broad of a reach, thus conflicting
with the rule that privileges should be construed narrowly. The
Government's interpretation suffers from neither of these faults.
It gives effect to the 1995 amendment by making clear that § 409
protects not just the information an agency compiles for § 152
purposes but also any information that an agency collects from
other sources for those purposes. It also takes a narrower view of
the privilege by making it inapplicable to information compiled or
collected for purposes unrelated to § 152 and held by agencies that
are not pursuing § 152 objectives. The Court's view of § 409 is
reinforced by the 1995 amendment's history. "[A]s collected" was
added to address confusion about § 409's proper scope and to
overcome judicial reluctance to protect raw data collected for §
152 purposes. Congress wished to make clear that § 152 was not
intended to be an effort-free tool in litigation against state and
local governments, but § 409's text evinces no intent to make
plaintiffs worse off than they would have been had § 152 funding
never existed. pp. 143-146.
(b) Section 409 is a proper exercise of Congress' Commerce
Clause authority to "regulate the use of the channels of interstate
commerce" and "to regulate and protect the instrumentalities of
interstate commerce,"
United States v.
Lopez,
514 U. S. 549,
558. Congress adopted § 152 to assist state and local governments
in reducing hazardous conditions in the Nations' channels of
commerce, but that effort was impeded by the States' reluctance to
comply fully with § 152's requirements lest those governments
become easier targets for negligence actions by providing a
centralized location from which would-be plaintiffs could obtain
much of the evidence necessary to sue. Because Congress could
reasonably believe that adopting a measure eliminating an
unforeseen side effect of § 152's information-gathering requirement
would result in more diligent collection efforts, more candid
discussions of hazardous locations, better informed decisionmaking,
and greater safety on the N ation's roads, both the original § 409
and the 1995 amendment can be viewed as legislation aimed at
improving safety in the channels of commerce and increasing
protections for the instrumentalities of interstate commerce.
Pp.146-148.
Certiorari dismissed in part; 144 Wash. 2d 696, 31 P. 3d 628,
reversed and remanded.
THOMAS, J., delivered the opinion for a unanimous Court.
132
Daniel R. Hamilton argued the cause for petitioner.
With him on the briefs was
Susan P. Jensen.
Deputy Solicitor General Clement argued the cause for the United
States as intervenor. On the briefs were Solicitor General Olson,
Assistant Attorney General McCallum, Deputy Solicitor General
Kneedler, Malcolm L. Stewart, Paul R. Q. Wolfson, Mark B. Stern,
Alisa B. Klein, Kirk K. Van Tine, Paul M. Geier, Dale C. Andrews,
Laura C. Fentonmiller, and Edward v: A. Kussy.
Salvador A. Mungia argued the cause for respondents.
With him on the brief were Darrell L. Cochran and J. Bradley
Buckhalter. *
JUSTICE THOMAS delivered the opinion of the Court.
We address in this case whether 23 U. S. C. § 409, which
protects information "compiled or collected" in connection
*Briefs of
amici curiae urging reversal were filed for
the State of Louisiana by
Richard P. Ieyoub, Attorney
General,
John C.
Young and
James R. Dawson,
Assistant Attorneys General, and
Lawrence A. Durant; for the
State of Washington et al. by
Christine O.
Gregoire,
Attorney General of Washington, and
William Berggren Collins
and
Michael E. Tardif, Senior Assistant Attorneys General,
and by the Attorneys General for their respective jurisdictions as
follows:
Bruce M. Botelho of Alaska,
Robert A.
Butterworth of Florida,
Earl I. Anzai of Hawaii,
James E. Ryan of Illinois,
Steve Carter of Indiana,
J.
Joseph Curran, Jr., of Maryland,
Frankie Sue Del
Papa of Nevada,
Robert Tenorio Torres of the Northern
Mariana Islands,
Betty D. Montgomery of Ohio,
Hardy
Myers of Oregon,
D. Michael Fisher of Pennsylvania,
Mark L. Shurtleff of Utah, and
William H. Sorrell of
Vermont; for the Association of American Railroads by
Carter
G.
Phillips, Stephen B. Kinnaird, and
Daniel Saphire;
and for the Product Liability Advisory Council, Inc., by
Kenneth S.
Geller and
John
A brief of
amicus curiae urging affirmance was filed for
the Association of Trial Lawyers of America by
Jeffrey Robert
White.
Briefs of
amici curiae were filed for the Washington
State Trial Lawyers Association Foundation by
Debra L.
Stephens and
Bryan P. Harnetiaux; for Lynn A. Baker et
al. by
Ms. Baker, pro se; and for Robert Whitmer et al. by
Charles K. Wiggins, Kenneth W Masters, and
Keith L.
Kessler.
133
with certain federal highway safety programs from being
discovered or admitted in certain federal or state trials, is a
valid exercise of Congress' authority under the Constitution.
I A
Beginning with the Highway Safety Act of 1966, Congress has
endeavored to improve the safety of our Nation's highways by
encouraging closer federal and state cooperation with respect to
road improvement projects. To that end, Congress has adopted
several programs to assist the States in identifying highways in
need of improvements and in funding those improvements. See,
e. g., 23 U. S. C. §§ 130 (Railway-Highway Crossings), 144
(Highway Bridge Replacement and Rehabilitation Program), and 152
(Hazard Elimination Program). Of relevance to this case is the
Hazard Elimination Program (Program) which provides state and local
governments with funding to improve the most dangerous sections of
their roads. To be eligible for funds under the Program, a state or
local government must undertake a thorough evaluation of its public
roads. Specifically, § 152(a)(1) requires them to
"conduct and systematically maintain an engineering survey of
all public roads to identify hazardous locations, sections, and
elements, including roadside obstacles and unmarked or poorly
marked roads, which may constitute a danger to motorists,
bicyclists, and pedestrians, assign priorities for the correction
of such locations, sections, and elements, and establish and
implement a schedule of projects for their improvement."
Not long after the adoption of the Program, the Secretary of
Transportation reported to Congress that the States objected to the
absence of any confidentiality with respect to their compliance
measures under § 152. H. R. Doc. No. 94-366, p. 36 (1976).
According to the Secretary's re-
134
port, the States feared that diligent efforts to identify roads
eligible for aid under the Program would increase the risk of
liability for accidents that took place at hazardous locations
before improvements could be made.
Ibid. In 1983, concerned
that the States' reluctance to be forthcoming and thorough in their
data collection efforts undermined the Program's effectiveness, the
United States Department of Transportation (DOT) recommended the
adoption of legislation prohibiting the disclosure of information
compiled in connection with the Program. See Brief for United
States as
Amicus Curiae in
Alabama Highway Dept. v.
Boone, O. T. 1991, No. 90-1412, p. 10, cert. denied, 502 U.
S. 937 (1991).
To address the concerns expressed by the States and the DOT, in
1987, Congress adopted 23 U. S. C. § 409, which provided:
"Notwithstanding any other provision of law, reports, surveys,
schedules, lists, or data compiled for the purpose of
identifying[,] evaluating, or planning the safety enhancement of
potential accident sites, hazardous roadway conditions, or
railway-highway crossings, pursuant to sections 130, 144, and 152
of this title or for the purpose of developing any highway safety
construction improvement project which may be implemented utilizing
Federal-aid highway funds shall not be admitted into evidence in
Federal or State court or considered for other purposes in any
action for damages arising from any occurrence at a location
mentioned or addressed in such reports, surveys, schedules, lists,
or data." Surface Transportation and Uniform Relocation Assistance
Act of 1987, § 132, 101 Stat. 170.
The proper scope of § 409 became the subject of some dispute
among the lower courts. Some state courts, for example, concluded
that § 409 addressed only the admissibility of relevant documents
at trial and did not apply to pretrial dis-
135
covery. According to these courts, although information compiled
for § 152 purposes would be inadmissible at trial, it nevertheless
remained subject to discovery. See,
e. g.,
Ex parte
Alabama Highway Dept., 572 So. 2d 389 (Ala. 1990), cert. denied
sub nom. Alabama Highway Dept. v.
Boone, 502 U. S.
937 (1991);
Light v.
New York, 149 Misc. 2d 75, 80,
560 N. Y. S. 2d 962, 965 (Ct. Cl. 1990);
Indiana Dept. of
Transp. v.
Overton, 555 N. E. 2d 510, 512 (Ind. App.
1990). Other state courts reasoned that § 409 protected only
materials actually generated by a governmental agency for § 152
purposes, and documents collected by that agency to prepare its §
152 funding application remained both admissible and discoverable.
See,
e. g., Wiedeman v.
Dixie Elec. Membership Corp.,
627 So. 2d 170, 173 (La. 1993), cert. denied, 511 U. S. 1127
(1994). See also,
e. g., Southern Pacific Transp. Co. v.
Yarnell, 181 Ariz. 316, 319-320, 890 P. 2d 611, 614-615,
cert. denied, 516 U. S. 937 (1995) (applying the same rule in the
context of the Railway-Highway Crossings program);
Tardy v.
Norfolk Southern Corp., 103 Ohio App. 3d 372, 378379,659 N.
E. 2d 817, 820-821 (same), appeal not allowed, 74 Ohio St. 3d 1408,
655 N. E. 2d 187 (1995) (Table).
Responding to these developments, Congress amended § 409 in two
ways. In 1991, Congress expressly made the statute applicable to
pretrial discovery, see Intermodal Surface Transportation
Efficiency Act of 1991, § 1035(a), 105 Stat. 1978, and in 1995,
Congress added the phrase "or collected" after the word "compiled,"
National Highway System Designation Act of 1995, § 323, 109 Stat.
591. As amended, § 409 now reads:
"Notwithstanding any other provision of law, reports, surveys,
schedules, lists, or data compiled or collected for the purpose of
identifying, evaluating, or planning the safety enhancement of
potential accident sites, hazardous roadway conditions, or
railway-highway crossings, pursuant to sections 130, 144, and 152
of this title or for the purpose of developing any highway safety
con-
136
struction improvement project which may be implemented utilizing
Federal-aid highway funds shall not be subject to discovery or
admitted into evidence in a Federal or State court proceeding or
considered for other purposes in any action for damages arising
from any occurrence at a location mentioned or addressed in such
reports, surveys, schedules, lists, or data."
B
Ignacio Guillen's wife, Clementina Guillen-Alejandre, died on
July 5, 1996, in an automobile accident at the intersection of
168th Street East and B Street East (168/B intersection), in Pierce
County, Washington. Several months before the accident, petitioner
had requested § 152 funding for this intersection, but the request
had been denied. Petitioner renewed its application for funding on
April 3, 1996, and the second request was approved on July 26,
1996, only three weeks after the accident occurred.
Beginning on August 16, 1996, counsel for respondents sought to
obtain from petitioner information about accidents that had
occurred at the 168/B intersection.1 Petitioner declined to provide
any responsive information, asserting that any relevant documents
were protected by § 409. After informal efforts failed to resolve
this discovery dispute, respondents turned to the Washington
courts.
Respondents first filed an action alleging that petitioner's
refusal to disclose the relevant documents violated the
1 In a letter dated October 28, 1996, respondents' counsel
clarified his request as follows: "'I want to make the record clear
that we are not seeking any reports that were specifically written
for developing any safety construction improvement project at the
intersection at issue.''' Quoted in 144 Wash. 2d 696, 703, 31 P. 3d
628, 633 (2001). The letter further explained, however, that
respondents were seeking" 'a copy of all documents that record the
accident history of the intersection that may have been used in the
preparation of any such reports.''' Quoted in id., at 703-704, 31
P. 3d, at 633.
137
State's Public Disclosure Act (PDA).2 The trial court granted
summary judgment in favor of respondents and ordered petitioner to
disclose five documents 3 and pay respondents' attorney's fees.
Petitioner appealed.
While the appeal in the PDA action was pending, respondents
filed a separate action, asserting that petitioner had been
negligent in failing to install proper traffic controls at the
168/B intersection. In connection with the tort action, respondents
served petitioner with interrogatories seeking information
regarding accidents that had occurred at the 168/B intersection.
Petitioner refused to comply with the discovery request, once again
relying on § 409. Respondents successfully sought an order to
compel, and petitioner moved for discretionary appellate review of
the trial judge's interlocutory order. The Washington Court of
Appeals
2 The relevant portion of the PDA provides:
"Upon the motion of any person having been denied an opportunity
to inspect or copy a public record by an agency, the superior court
in the county in which a record is maintained may require the
responsible agency to show cause why it has refused to allow
inspection or copying of a specific public record or class of
records. The burden of proof shall be on the agency to establish
that refusal to permit public inspection and copying is in
accordance with a statute that exempts or prohibits disclosure in
whole or in part of specific information or records." Wash. Rev.
Code § 42.17.340(1) (2000).
3 The trial court's judgment encompassed the following
materials: (1) a list of accidents at the 168/B intersection from
1990 through 1996, prepared by the Washington State Patrol, showing
the location, date, time, and nature of the accident, which
petitioner subsequently obtained for the purpose of conducting a
study of the safety of the intersection; (2) a collision diagram
dated January 5, 1989, prepared by a county employee responsible
for investigating accidents at the intersection; (3) another
collision diagram dated July 18, 1988, prepared by the same county
employee; (4) reports of accidents at the intersection prepared by
law enforcement agencies investigating the accidents; and (5) a
draft memorandum from petitioner's public works director to a
county council member, consisting of information used for
petitioner's application for § 152 funds for the 168/B
intersection. See 144 Wash. 2d, at 704-705, and n. 1; 31 P. 3d, at
634, and n. 1.
138
granted the motion and consolidated the appeal in the tort case
with the appeal in the PDA action.
On review, the Washington Court of Appeals in large part
affirmed the decisions below. In interpreting § 409, the court
distinguished between an agency that collects or compiles
information for purposes
unrelated to § 152 and one that
collects and compiles information pursuant to § 152. In the court's
view, documents held by the first agency would not be protected by
§ 409, even if they subsequently were used for § 152 purposes,
whereas documents held by the second agency would be protected, so
long as their collection or compilation was the result of § 152
efforts. Applying these principles, the court concluded that only
one of the documents at issue in the PDA case-the draft memorandum
by the county's public works director, see n. 3,
supra-was
protected by § 409 because it had been prepared for § 152 purposes.
The rest were not protected because respondents "carefully
requested reports in the hands of the sheriff or other law
enforcement agencies, not reports or data 'collected or compiled'
by the Public Works Department." 96 Wash. App. 862, 873, 982 P. 2d
123, 129 (1999). The appellate court also expressed doubt about the
constitutionality of § 409 as applied in state courts, but decided
not to resolve the question because it was not raised.
Id.,
at 875, n. 26, 982 P. 2d, at 130, n. 26. Petitioner appealed once
again.
The Washington Supreme Court's decision followed a three-step
analysis. The court first determined that disclosure of the
information respondents sought under both the PDA and state
discovery rules would be appropriate only if the materials
requested by respondents were not protected by §409.
Second, examining the scope of § 409, the Washington Supreme
Court rejected, as "unsound in principle and unworkable in
practice," 144 Wash. 2d 696, 727, 31 P. 3d 628, 646 (2001), the
appellate court's view that § 409 drew a distinction between
documents "as held by" the Public Works De-
139
partment and documents "as held by" the county sheriff. Rather,
it reasoned that § 409, as amended in 1995, purported to protect
from disclosure any documents prepared for state and local
purposes, so long as those documents were also collected for § 152
purposes. In the court's view, the statute did not turn on the
identity of the custodian of the document at issue.
Having so construed § 409, the court proceeded to consider
whether the adoption of the 1995 amendment to § 409 was a proper
exercise of Congress' powers under the Spending, Commerce, and
Necessary and Proper Clauses of Article I of the United States
Constitution. With respect to the Spending Clause, the court found
that "barring the admissibility and discovery in state court of
accident reports and other traffic and accident materials and 'raw
data' that were originally prepared for routine state and local
purposes, simply because they are 'collected' for,
among other
reasons, federal purposes pursuant to a federal statute" did
not reasonably serve any "valid federal interest in the operation
of the federal safety enhancement program."
Id., at 737, 31
P. 3d, at 651. With respect to the Commerce Clause, the court
concluded that § 409 was not an "integral part" of the regulation
of the federal-aid highway system and, thus, could not be upheld
under
Hodel v.
Indiana, 452 U. S. 314 (1981). 144
Wash. 2d, at 742, 31 P. 3d, at 654. Finally, with respect to the
Necessary and Proper Clause, the court ruled that, although
Congress could require state courts to enforce a federal privilege
protecting materials "that would not have been created but-for
federal mandates such as ... [§ ]152," it was "neither 'necessary'
nor 'proper' for Congress in 1995 to extend that privilege to
traffic and accident materials and raw data created and collected
for state and local purposes, simply because they are
also
collected and used for federal purposes."
Id., at 743, 31 P.
3d, at 654-655.
In light of its conclusion that the 1995 amendment to § 409
exceeded Congress' power under the Constitution, and,
140
therefore, was not binding on the States, the court held that §
409 protected only information originally created for § 152
purposes. But, rather than determining whether the documents or
data at issue in this case would be protected under its reading of
§ 409, the court vacated the lower court's judgment and remanded
the case for the lower courts to consider the record in the first
instance.4
Three justices concurred only in the result. They disagreed with
the majority's broad reading of the statute and would have held
that § 409 precludes a potential plaintiff only from obtaining
information from an agency that collected that information for §
152 purposes.
We granted certiorari to resolve the question of the
constitutionality of this federal statute, 535 U. S. 1033 (2002),
and now reverse.
II
Before addressing the merits of petitioner's claims, we must
first consider whether we have jurisdiction to hear the case. Under
28 U. S. C. § 1257(a), this Court has certiorari jurisdiction to
review "[f]inal judgments or decrees rendered by the highest court
of a State in which a decision could be had ... where the validity
of a ... statute of the United States is drawn in question ... on
the ground of its being repugnant to the Constitution ... of the
United States." As a general matter, to be reviewed by this Court,
a state-court judgment must be final "'as an effective
determination of the litigation and not of merely interlocutory or
intermediate steps therein.'"
Jefferson v.
City of
Tarrant, 522 U. S.
75, 81 (1997) (quoting
Market Street R. Co. v.
Railroad Comm'n of Cal., 324 U. S. 548, 551
(1945)). We have acknowledged, however, that certain state-court
judgments can be treated as final for jurisdictional purposes, even
though further
4 The court also ruled that respondents were entitled to
attorney's fees in their PDA action. See 144 Wash. 2d, at 745, 31
P. 3d, at 655-656.
141
proceedings are to take place in the state courts.
Cox
Broadcasting Corp. v.
Cohn, 420 U. S. 469, 477-483
(1975) (outlining four exceptions to the finality rule). See also,
e. g., ASARCO Inc. v.
Kadish, 490 U. S. 605, 611-612
(1989) (applying the
Cox exceptions);
Duquesne Light
Co. v.
Barasch, 488 U. S. 299, 306-307
(1989) (same).
Respondents contend the decision below did not result in a final
judgment for purposes of § 1257(a) because the Washington Supreme
Court remanded the case for further proceedings. They are only
partially correct.
As we have already described, we have now before us a
consolidated case consisting of two separate actions: an action
under the State of Washington's Public Disclosure Act and a tort
action. Respondents are correct that the decision below does not
constitute a final judgment with respect to the tort action. In
that case, the Washington Supreme Court resolved only a discovery
dispute; it did not determine the final outcome of the litigation.
Nor do any of the exceptions outlined in
Cox Broadcasting
Corp. v.
Cohn, supra, apply to the tort action.5
Accordingly, we dismiss the writ
5 With respect to the first
Cox exception, the Washington
Supreme Court's interpretation of § 409 is not conclusive and does
not foreordain the outcome of the proceedings below, as petitioner
might well be able to prove that its actions regarding the 168/B
intersection were not negligent.
Cox Broadcasting Corp. v.
Cohn, 420 U.
S. 469, 479 (1975). Moreover, petitioner's victory on the
merits would moot the discovery issue; accordingly, the second
Cox exception is not implicated.
Id., at 480. And, if
petitioner does not prevail on the merits, it remains free to raise
the discovery issue on appeal. Even if the Washington Supreme Court
adheres to its interlocutory ruling as "law of the case," we would
still be able to review the discovery issue once a final judgment
has been entered.
Jefferson v.
City of Tarrant,
522 U. S. 75,
82-83 (1997). In short, the third
Cox exception does not
help petitioner either. 420 U. S., at 481. Finally, this is not a
case where "reversal of the state court on the federal issue would
be preclusive of any further litigation," id., at 482-483, because
respondents remain free to try their tort case without the disputed
documents. Rather, the decision below controls "merely ... the
nature and
142
of certiorari with respect to the tort action for want of
jurisdiction.
We reach a different conclusion regarding the PDA action.
In that suit, the Washington Supreme Court was asked to review
only the appellate court's ruling that four of the five documents
requested by respondents were not protected under § 409 and
therefore should be disclosed under the PDA.6 Because the
Washington Supreme Court held the 1995 amendment to § 409 to be
invalid-thus, limiting the privilege offered by the statute only to
documents originally created for § 152 purposes-the court
effectively interpreted § 409 more narrowly than the Court of
Appeals. Accordingly, the four documents at issue before the
Washington Supreme Court remained unprotected under § 409 and
continued to be subject to disclosure under the PDA. As we read the
decision below, all that remains to be decided on remand in the PDA
action is the amount of attorney's fees to which respondents are
entitled. The PDA action, then, falls squarely under the first
Cox exception because the Washington Supreme Court's ruling
on the federal privilege issue is "conclusive" and "the outcome of
further proceedings preordained." 7
Cox Broadcasting Corp.,
supra, at 479.
character of, or ... the admissibility of evidence in, the state
proceedings still to come."
Id., at 483. Thus, petitioner
finds no refuge in the fourth
Cox exception.
6 Respondents did not seek review of the Court of Appeals'
decision that one of the requested documents-a draft memorandum
from the public works director to a county council member, see n.
3, supra-was in fact protected by § 409 because it contained
information derived from § 152 activities. See 96 Wash. App. 862,
874, 982 P. 2d 123, 130 (1999). See also Reply to Brief in
Opposition 2.
7 Our reading of the decision below is reinforced by the
Washington Supreme Court's ruling that respondents are entitled to
attorney's fees for the PDA action. See n. 4,
supra. Under
state law, attorney's fees may not be awarded in a PDA action
unless the prevailing party has "an affirmative judgment rendered
in its favor at the conclusion of the entire case."
Overlake
Fund v.
Bellevue, 70 Wash. App. 789, 795, 855 P. 2d 706,
710 (1993); see also
Tacoma News, Inc. v.
Tacoma-Pierce
County Health
143
Therefore, we have jurisdiction to hear the PDA portion of this
case.
III
We turn now to the merits. Petitioner essentially agrees with
the Washington Supreme Court's expansive reading of § 409, but
argues that the Washington Supreme Court erred in concluding that
Congress was without power to enact the 1995 amendment to § 409.
Before addressing the constitutional question, however, we must
determine the statute's proper scope.
A 1
According to petitioner, a document initially prepared and then
held by an agency (here the county sheriff) for purposes unrelated
to § 152 becomes protected under § 409 when a copy of that document
is collected by another agency (here the Public Works Department)
for purposes of § 152. Under petitioner's view, for example, an
accident report prepared and held by the county sheriff for
purposes unrelated to § 152 would become protected under § 409 as
soon as a copy of that report is sent to the Public Works
Department to be used in connection with petitioner's § 152 funding
application. Consequently, a person seeking a copy of the accident
report either from the county sheriff or from the Public Works
Department would not be able to obtain it.8 Brief for Petitioner
37-44.
Dept., 55 Wash. App. 515, 525, 778 P. 2d 1066, 1071 (1989),
review denied, 113 Wash. 2d 1037, 785 P. 2d 825 (1990) (Table).
Thus, because the Washington Supreme Court held that respondents
were entitled to attorney's fees in the PDA action, it must have
considered the merits of that action to have been conclusively
determined.
8 Indeed, petitioner's brief could be read as suggesting that §
409 protects not only materials containing information collected
for § 152 purposes but also any testimony regarding information
contained in such materials. Brief for Petitioner 44. See also
Brief for Respondents 20 (offering this reading as a possible
interpretation of the statute). Under this view, an
144
Respondents contend that § 409 protects only materials actually
created by the agency responsible for seeking federal funding for §
152 purposes. Brief for Respondents 22-23, and n. 2. On their view,
if the Public Works Department collects reports of all the
accidents that have occurred at a given intersection to prepare its
§ 152 application, those reports would not be protected by § 409,
and a person seeking them from the Public Works Department would be
entitled to obtain them.
The United States, as intervenor, proposes a third
interpretation: § 409 protects all reports, surveys, schedules,
lists, or data actually compiled
or collected for § 152
purposes, but does not protect information that was originally
compiled or collected for purposes unrelated to § 152 and that is
currently held by the agencies that compiled or collected it, even
if the information was at some point "collected" by another agency
for § 152 purposes. Brief for United States 28-36. Respondents
concede that this is a defensible reading of the statute. Brief for
Respondents 23-24, 25. Under this interpretation, an accident
report collected only for law enforcement purposes and held by the
county sheriff would not be protected under § 409 in the hands of
the county sheriff, even though that same report would be protected
in the hands of the Public Works Department, so long as the
department first obtained the report for § 152 purposes. We agree
with the Government's interpretation of the statute.
2
We have often recognized that statutes establishing evidentiary
privileges must be construed narrowly because privileges impede the
search for the truth.
Baldrige v.
Sha-
officer who witnessed an accident would not be permitted to
testify about that accident, if the officer summarized what he saw
in a report that was later "collected" for § 152 purposes. But see
Brief for Petitioner 45-46 (asserting that testimony derived from
sources apart from the protected documents is permitted under §
409).
145
piro, 455
U. S. 345, 360 (1982) ("A statute granting a privilege is to be
strictly construed so as 'to avoid a construction that would
suppress otherwise competent evidence'" (quoting
St. Regis Paper
Co. v.
United States, 368 U. S. 208, 218
(1961)). See also,
e. g., University of Pennsylvania v.
EEOC, 493 U.
S. 182, 189 (1990). See generally
United States v.
Nixon, 418 U.
S. 683 (1974). Here, § 409 establishes a privilege;
accordingly, to the extent the text of the statute permits, we must
construe it narrowly.
Of the three interpretations outlined above, respondents'
clearly gives the statute the narrowest application. Nevertheless,
we decline to adopt it, as that reading would render the 1995
amendment to § 409 (changing the language from "compiled" to
"compiled
or collected") an exercise in futility. We have
said before that, "[w]hen Congress acts to amend a statute, we
presume it intends its amendment to have real and substantial
effect."
Stone v.
INS, 514 U. S. 386, 397
(1995). Yet, under respondents' view, § 409 as amended in 1995
would protect from disclosure only information that was already
protected before the amendment, i.
e., information
generated for § 152 purposes. That reading gives the
amendment no "real and substantial effect" and, accordingly, cannot
be the proper understanding of the statute.
Petitioner's reading, by contrast, while permissible, gives the
statute too broad of a reach given the language of the statute,
thus conflicting with our rule that, when possible, privileges
should be construed narrowly. See,
e. g.,
Baldrige,
supra, at 360.
The interpretation proposed by the Government, however, suffers
neither of these faults. It gives effect to the 1995 amendment by
making clear that § 409 protects not just the information an agency
generates, i.
e., compiles, for § 152 purposes, but also any
information that an agency collects from other sources for § 152
purposes. And, it also takes a narrower view of the privilege by
making it inapplicable to information compiled or collected for
purposes unrelated to
146
§ 152 and held by agencies that are not pursuing § 152
objectives. We therefore adopt this interpretation.
Our conclusion is reinforced by the history of the 1995
amendment. As we have already noted, the phrase "or collected" was
added to § 409 to address confusion among the lower courts about
the proper scope of § 409 and to overcome judicial reluctance to
protect under § 409 raw data collected for § 152 purposes. See
supra, at 134-136. By amending the statute, Congress wished
to make clear that § 152 was not intended to be an effort-free tool
in litigation against state and local governments. Compare,
e.
g., Robertson v.
Union Pacific R. Co., 954 F.2d
1433, 1435
(CA8 1992) (recognizing that § 409 was
intended to "prohibit federally required record-keeping from being
used as a 'tool ... in private litigation'" (quoting
Light
v.
New York, 149 Misc. 2d 75, 80, 560 N. Y. S. 2d 962, 965
(Ct. Cl. 1990)), with authorities cited
supra, at 134-135.
However, the text of § 409 evinces no intent to make plaintiffs
worse off than they would have been had § 152 funding never
existed. Put differently, there is no reason to interpret § 409 as
prohibiting the disclosure of information compiled or collected for
purposes unrelated to § 152, held by government agencies not
involved in administering § 152, if, before § 152 was adopted,
plaintiffs would have been free to obtain such information from
those very agencies.
B
Having determined that § 409 protects only information compiled
or collected for § 152 purposes, and does not protect information
compiled or collected for purposes unrelated to § 152, as held by
the agencies that compiled or collected that information, we now
consider whether § 409 is a proper exercise of Congress' authority
under the Constitution. We conclude that it is.
It is well established that the Commerce Clause gives Congress
authority to "regulate the use of the channels of interstate
commerce."
United States v.
Lopez, 514 U. S. 549, 558
147
(1995) (citing
United States v.
Darby, 312 U. S. 100, 114
(1941); Heart of Atlanta Motel, Inc. v.
United States,
379 U. S. 241, 256 (1964)). In addition, under the Commerce
Clause, Congress "is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities."
Lopez, supra, at 558 (citing
Shreveport Rate Cases, 234 U. S. 342 (1914);
Southern R. Co. v.
United States, 222 U. S. 20 (1911);
Perez v.
United States, 402 U. S. 146
(1971)).
As already discussed,
supra, at 133, Congress adopted §
152 to assist state and local governments in reducing hazardous
conditions in the Nation's channels of commerce. That effort was
impeded, however, by the States' reluctance to comply fully with
the requirements of § 152, as such compliance would make state and
local governments easier targets for negligence actions by
providing would-be plaintiffs a centralized location from which
they could obtain much of the evidence necessary for such actions.
In view of these circumstances, Congress could reasonably believe
that adopting a measure eliminating an unforeseen side effect of
the information-gathering requirement of § 152 would result in more
diligent efforts to collect the relevant information, more candid
discussions of hazardous locations, better informed decisionmaking,
and, ultimately, greater safety on our Nation's roads.
Consequently, both the original § 409 and the 1995 amendment can be
viewed as legislation aimed at improving safety in the channels of
commerce and increasing protection for the instrumentalities of
interstate commerce. As such, they fall within Congress' Commerce
Clause power.9 Accordingly, the judgment of the Washing-
9 Because we conclude that Congress had authority under the
Commerce Clause to enact both the original § 409 and the 1995
amendment, we need not decide whether they could also be a proper
exercise of Congress' authority under the Spending Clause or the
Necessary and Proper Clause.
148
ton Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.10
It is so ordered.
10 Respondents contend in passing that § 409 violates the
principles of dual sovereignty embodied in the Tenth Amendment
because it prohibits a State from exercising its sovereign powers
to establish discovery and admissibility rules to be used in state
court for a state cause of action. See Brief for Respondents 44-46.
The court below did not address this precise argument, reasoning
instead that the 1995 amendment to § 409 was beyond Congress'
enumerated powers. We ordinarily do not decide in the first
instance issues not resolved below and decline to do so here. See,
e. g., National Collegiate Athletic Assn. v.
Smith,
525 U. S. 459,470
(1999). Moreover, in light of our disposition on this issue, we
need not address the second question on which we granted
certiorari: whether private plaintiffs have standing to assert
"states' rights" under the Tenth Amendment where their States'
legislative and executive branches expressly approve and accept the
benefits and terms of the federal statute in question.
Comments
Be the first to comment
Leave a Comment