Alvarez v. Smith

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ALVAREZ, COOK COUNTY STATE’S ATTORNEY v.
SMITH ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 08–351. Argued October 14, 2009—Decided December 8, 2009
Illinois law provides for forfeiture of movable personal property used to
facilitate a drug crime, permits police to seize the property without a
warrant, and allows the State to keep the property nearly five
months before beginning judicial forfeiture proceedings. Respon
dents, six individuals who had cars and cash seized under that law,
brought this federal civil rights action, claiming that the failure of
the State to provide a speedy postseizure hearing violated the federal
Due Process Clause. The District Court dismissed the case based on
Circuit precedent, but, on appeal, the Seventh Circuit departed from
that precedent and ruled for respondents. This Court granted certio
rari to review the Seventh Circuit’s due process determination, but
at oral argument the Court learned that all of the actual property
disputes between the parties had been resolved.
Held:
1. The case is moot. The Constitution permits this Court to decide
legal questions only in the context of actual “Cases” or “Controver
sies,” Art. III, §2, and an actual controversy must exist at all stages of
review, not just when the complaint is filed, Preiser v. Newkirk, 422
U. S. 395, 401. Here there is no longer any actual controversy re
garding ownership or possession of the underlying property. There is
no claim for damages before this Court; there is no properly certified
class or dispute over class certification; and this case does not fit
within the category of cases that are “capable of repetition” while
“evading review.” Only an abstract dispute about the law remains.
Pp. 4–6.
2. The judgment below is vacated. In moot cases, this Court nor
mally vacates the lower court judgment, which clears the path for re
2 ALVAREZ v. SMITH
Syllabus
litigation of the issues and preserves the rights of the parties, while
prejudicing none by a preliminary decision. United States v.
Munsingwear, Inc., 340 U. S. 36, 40. Where mootness is the result of
settlement rather than happenstance, however, the losing party for
feits the equitable remedy of vacatur. U. S. Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U. S. 18, 25. This case more closely re
sembles mootness through happenstance than through settlement.
In Bancorp, the party seeking review caused the mootness by volun
tarily settling the issue contested throughout the litigation. Here,
the Court believes that the presence of the federal case played no
significant role in the termination of plaintiffs’ state-court forfeiture
proceedings. Plaintiffs’ forfeiture cases took place with no procedural
link to the case before this Court; apparently terminated on substan
tive grounds in their ordinary course; and, to the Court’s knowledge,
no one raised the procedural question at issue here in those cases.
This Court therefore concludes that it should follow its ordinary prac
tice and order vacatur. Pp. 6–9.
524 F. 3d 834, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, ALITO, and SO-
TOMAYOR, JJ., joined, and in which STEVENS, J., joined as to Parts I and
II. STEVENS, J., filed an opinion concurring in part and dissenting in
part.
Cite as: 558 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–351
_________________
ANITA ALVAREZ, COOK COUNTY STATE’S
ATTORNEY, PETITIONER v. CHERMANE
SMITH ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[December 8, 2009]
JUSTICE BREYER delivered the opinion of the Court.
We granted certiorari in this case to determine whether
Illinois law provides a sufficiently speedy opportunity for
an individual, whose car or cash police have seized with­
out a warrant, to contest the lawfulness of the seizure.
See U. S. Const., Amdt. 14, §1; United States v. Von Neu
mann, 474 U. S. 242 (1986); United States v. $8,850, 461
U. S. 555 (1983). At the time of oral argument, however,
we learned that the underlying property disputes have all
ended. The State has returned all the cars that it seized,
and the individual property owners have either forfeited
any relevant cash or have accepted as final the State’s
return of some of it. We consequently find the case moot,
and we therefore vacate the judgment of the Court of
Appeals and remand the case to that court with instruc­
tions to dismiss. United States v. Munsingwear, Inc., 340
U. S. 36, 39 (1950); see also E. Gressman, K. Geller, S.
Shapiro, T. Bishop, & E. Hartnett, Supreme Court Prac­
tice 941–942 (9th ed. 2007).
2 ALVAREZ v. SMITH
Opinion of the Court
I
Illinois law provides for forfeiture of movable personal
property (including cars and cash) used “to facilitate” a
drug crime. Ill. Comp. Stat., ch. 720, §570/505(a)(6) (West
2008). It permits a police officer to seize that property
without a warrant where (1) the officer has “probable
cause to believe” the property was so used and (2) a “war­
rantless seizure . . . would be reasonable” in the circum­
stances. §570/505(b). When an officer has seized property
without a warrant, the relevant law enforcement agency
must notify the State’s Attorney within 52 days of the
seizure; the State’s Attorney must notify the property
owner of any impending forfeiture within a further 45
days; and, if the owner wishes to contest forfeiture, the
State’s Attorney must begin judicial forfeiture proceedings
within yet a further 45 days. See ch. 725, §§150/5–150/6.
Thus, the statute gives the State up to 142 days, nearly
five months, to begin judicial forfeiture proceedings—
during which time the statute permits the State to keep
the car or cash within its possession.
On November 22, 2006, six individuals (the respondents
or “plaintiffs”) brought this federal civil rights action
against defendants the city of Chicago, the Superintendent
of the Chicago Police Department, and the Cook County
State’s Attorney (the petitioner here, whom we shall call
the “State’s Attorney”). See Rev. Stat. §1979, 42 U. S. C.
§1983. Three of the individuals, Chermane Smith, Ed­
manuel Perez, and Tyhesha Brunston, said that earlier in
2006 the police had, upon their arrests, seized their cars
without a warrant. See Complaint ¶25, App. 34a (Smith,
seizure on Jan. 19, 2006); id., ¶26, at 34a (Perez, seizure
on Mar. 8, 2006); id., ¶27, at 34a (Brunston, seizure on
Apr. 8, 2006); Plaintiffs’ Motion for Class Certification ¶8,
at 39a. The other three plaintiffs, Michelle Waldo, Kirk
Yunker, and Tony Williams, said that earlier in 2006
police had, upon their arrests, seized their cash without a
Cite as: 558 U. S. ____ (2009) 3
Opinion of the Court
warrant. See Complaint ¶28, at 34a–35a (Waldo, seizure
on Jan. 20, 2006); id., ¶29, at 35a (Yunker, seizure on
Sept. 26, 2006); id., ¶30, at 35a (Williams, seizure in July
2006); Plaintiffs’ Motion for Class Certification ¶8, at 39a.
The plaintiffs added that the police department still had
custody of their property. See Complaint ¶¶24–30, at
34a–35a. They claimed that the failure of the State to
provide a speedy postseizure hearing violated the federal
Due Process Clause. See U. S. Const., Amdt. 14, §1. And
they asked the court (1) to certify the case as a class ac­
tion, (2) to declare that they had a due process right to a
prompt postseizure probable-cause hearing, (3) to declare
that the hearing must take place within 10 days of any
seizure, and (4) to enjoin the defendants’ current practice
of keeping the property in custody for a longer time with­
out a judicial determination of probable cause. See Com­
plaint ¶36, App. 36a.
The defendants moved to dismiss the complaint on the
ground that Seventh Circuit precedent made clear that
“the Constitution does not require any procedure prior to
the actual forfeiture proceeding.” Jones v. Takaki, 38
F. 3d 321, 324 (1994) (citing Von Neumann, supra, at 249).
On February 22, 2007, the District Court granted the
motion to dismiss. It also denied the plaintiffs’ motion for
class certification. The plaintiffs appealed.
On May 2, 2008, the Seventh Circuit decided the appeal
in the plaintiffs’ favor. Smith v. Chicago, 524 F. 3d 834.
It reconsidered and departed from its earlier precedent.
Id., at 836–839. It held that “the procedures set out in”
the Illinois statute “show insufficient concern for the due
process right of the plaintiffs.” Id., at 838. And it added
that, “given the length of time which can result between
the seizure of property and the opportunity for an owner
to contest the seizure under” Illinois law, “some sort of
mechanism to test the validity of the retention of the
property is required.” Ibid. The Court of Appeals re­
4 ALVAREZ v. SMITH
Opinion of the Court
versed the judgment of the District Court and remanded
the case for further proceedings. Id., at 839. Its mandate
issued about seven weeks thereafter.
On February 23, 2009, we granted certiorari to review
the Seventh Circuit’s “due process” determination. The
Court of Appeals then recalled its mandate. The parties
filed briefs in this Court. We then recognized that
the case might be moot, and we asked the parties to ad­
dress the question of mootness at the forthcoming oral
argument.
At oral argument counsel for both sides confirmed that
there was no longer any dispute about ownership or pos­
session of the relevant property. See Tr. of Oral Arg. 5
(State’s Attorney); id., at 56–57 (plaintiffs). The State had
returned the cars to plaintiffs Smith, Perez, and Brunston.
See id., at 5. Two of the plaintiffs had “defaulted,” appar­
ently conceding that the State could keep the cash. Ibid.
And the final plaintiff and the State’s Attorney agreed
that the plaintiff could keep some, but not all, of the cash
at issue. Id., at 5, 56–57. As counsel for the State’s Attor­
ney told us, “[T]hose cases are over.” Id., at 5.
II
The Constitution permits this Court to decide legal
questions only in the context of actual “Cases” or “Contro­
versies.” U. S. Const., Art. III, §2. An “ ‘actual controversy
must be extant at all stages of review, not merely at the
time the complaint is filed.’ ” Preiser v. Newkirk, 422 U. S.
395, 401 (1975) (quoting Steffel v. Thompson, 415 U. S.
452, 459, n. 10 (1974)). In this case there is no longer any
actual controversy between the parties about ownership or
possession of the underlying property.
The State’s Attorney argues that there is a continuing
controversy over damages. We concede that the plaintiffs
filed a motion in the District Court seeking damages. But
the plaintiffs filed their motion after the Seventh Circuit
Cite as: 558 U. S. ____ (2009) 5
Opinion of the Court
issued its opinion. And, after this Court granted certio­
rari, the Court of Appeals recalled its mandate, taking the
case away from the District Court before the District
Court could respond to the motion. Thus, we have before
us a complaint that seeks only declaratory and injunctive
relief, not damages.
The plaintiffs point out that they sought certification of
a class. And a class might well contain members who
continue to dispute ownership of seized property. But that
fact is beside the point. The District Court denied the
plaintiffs’ class certification motion. The plaintiffs did not
appeal that denial. Hence the only disputes relevant here
are those between these six plaintiffs and the State’s
Attorney; those disputes concerned cars and cash; and
those disputes are now over. United States Parole
Comm’n v. Geraghty, 445 U. S. 388, 404 (1980) (“A named
plaintiff whose claim expires may not continue to press
the appeal on the merits until a class has been properly
certified”).
The parties, of course, continue to dispute the lawful­
ness of the State’s hearing procedures. But that dispute is
no longer embedded in any actual controversy about the
plaintiffs’ particular legal rights. Rather, it is an abstract
dispute about the law, unlikely to affect these plaintiffs
any more than it affects other Illinois citizens. And a
dispute solely about the meaning of a law, abstracted from
any concrete actual or threatened harm, falls outside the
scope of the constitutional words “Cases” and “Controver­
sies.” See, e.g., Lewis v. Continental Bank Corp., 494 U. S.
472, 477 (1990); North Carolina v. Rice, 404 U. S. 244, 246
(1971) (per curiam); Aetna Life Ins. Co. v. Haworth, 300
U. S. 227, 241 (1937); Mills v. Green, 159 U. S. 651, 653
(1895).
We can find no special circumstance here that might
warrant our continuing to hear the case. We have some­
times heard attacks on practices that no longer directly
6 ALVAREZ v. SMITH
Opinion of the Court
affect the attacking party, but are “capable of repetition”
while “evading review.” See, e.g., Federal Election
Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462
(2007); Southern Pacific Terminal Co. v. ICC, 219 U. S.
498, 515 (1911). Yet here, unlike those cases, nothing
suggests that the individual plaintiffs will likely again
prove subject to the State’s seizure procedures. See Los
Angeles v. Lyons, 461 U. S. 95, 109 (1983) (“[T]he capable­
of-repetition doctrine applies only in exceptional situa­
tions, and generally only where the named plaintiff can
make a reasonable showing that he will again be subjected
to the alleged illegality”); DeFunis v. Odegaard, 416 U. S.
312, 318–319 (1974) (per curiam). And in any event, since
those who are directly affected by the forfeiture practices
might bring damages actions, the practices do not “evade
review.” See Memphis Light, Gas & Water Div. v. Craft,
436 U. S. 1, 8–9 (1978) (damages claim saves case from
mootness). Consequently, the case is moot. See, e.g.,
Preiser, supra, at 403–404; Mills, supra, at 658.
III
It is less easy to say whether we should order the judg­
ment below vacated. The statute that enables us to vacate
a lower court judgment when a case becomes moot is
flexible, allowing a court to “direct the entry of such ap­
propriate judgment, decree, or order, or require such
further proceedings to be had as may be just under the
circumstances.” 28 U. S. C. §2106; see also U. S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 21
(1994). Applying this statute, we normally do vacate the
lower court judgment in a moot case because doing so
“clears the path for future relitigation of the issues be­
tween the parties,” preserving “the rights of all parties,”
while prejudicing none “by a decision which . . . was only
preliminary.” Munsingwear, 340 U. S., at 40.
In Bancorp, however, we described circumstances where
Cite as: 558 U. S. ____ (2009) 7
Opinion of the Court
we would not do so. We said that, “[w]here mootness
results from settlement” rather than “ ‘happenstance,’ ” the
“losing party has voluntarily forfeited his legal remedy . . .
[and] thereby surrender[ed] his claim to the equitable
remedy of vacatur.” 513 U. S., at 25. The plaintiffs, point­
ing out that the State’s Attorney agreed to return all three
cars and some of the cash, claim that, with respect to at
least four of the plaintiffs, this case falls within Bancorp’s
“settlement” exception.
In our view, however, this case more closely resembles
mootness through “happenstance” than through “settle­
ment”—at least the kind of settlement that the Court
considered in Bancorp. Bancorp focused upon a bank­
ruptcy-related dispute that involved a legal question
whether a bankruptcy court could lawfully confirm a
debtor’s Chapter 11 reorganization plan if the plan relied
upon what the debtor said was a special exception (called
the “new value exception”) to ordinary creditor priority
rules. Id., at 19–20. The parties contested that legal issue
in the Bankruptcy Court; they contested it in an appeal of
the Bankruptcy Court’s order to the Federal District
Court; they contested it in a further appeal to the Court of
Appeals; and eventually they contested it in this Court.
Id., at 20. While the case was pending here, the parties
settled their differences in the Bankruptcy Court (the
court where the case originated)—including their differ­
ences on this particular contested legal point. Ibid. They
agreed upon a reorganization plan, which they said would
constitute a settlement that mooted the federal case. Ibid.Recognizing that the reorganization plan that the Bank­
ruptcy Judge confirmed in the case amounted to a settle­
ment that mooted the case, this Court did not vacate the
lower court’s judgment. The Court’s reason for leaving the
lower court’s judgment in place was that mootness was not
a result of “the vagaries of circumstance.” Id., at 25.
Rather the party seeking review had “caused the mootness
8 ALVAREZ v. SMITH
Opinion of the Court
by voluntary action.” Id., at 24 (emphasis added). By
virtue of the settlement, that party had “voluntarily for­
feited his legal remedy by the ordinary processes of appeal
or certiorari.” Id., at 25. Hence, compared to mootness
caused by “happenstance,” considerations of “equity” and
“fairness” tilted against vacatur. Id., at 25–26.
Applying these principles to the case before us, we
conclude that the terminations here fall on the “happen­
stance” side of the line. The six individual cases proceeded
through a different court system without any procedural
link to the federal case before us. To our knowledge (and
we have examined the state-court docket sheets), no one in
those cases raised the procedural question at issue here.
Rather, the issues in those six cases were issues solely of
state substantive law: Were the cars and the cash forfeit­
able or not? And court docket sheets suggest that the six
state cases terminated on substantive grounds in the
ordinary course of such state proceedings. In the three
automobile cases, the State voluntarily dismissed the
proceedings and returned the cars between 11 and 40
months after the seizures, a long enough time for the
State to have investigated the matters and to have deter­
mined (after the termination of any related criminal pro­
ceedings) for evidentiary reasons that it did not wish to
claim the cars. See Dockets in People v. 2004 Chevrolet
Impala, No. 2006–COFO–000296 (Cook County, IL)
(Brunston’s car returned on July 27, 2009); People v.
Smith, No. 2006–COFO–000036 (Cook County, IL)
(Smith’s car returned on May 5, 2008); and People v. 1999
Chevrolet Malibu, No. 2006–COFO–000288 (Cook County,
IL) (Perez’s car returned on Jan. 29, 2007). In the remain­
ing contested case, involving cash, the State voluntarily
dismissed the proceedings after 14 months, again a long
enough time for the State to have weighed the evidence
and found a compromise settlement appropriate on the
merits. See Docket in People v. $1,500 in U. S. Currency,
Cite as: 558 U. S. ____ (2009) 9
Opinion of the Court
No. 2006–COFO–000201 (Cook County, IL) (Waldo’s cash
returned on Mar. 19, 2007). The disparate dates at which
plaintiffs’ forfeiture proceedings terminated—11, 14, 27,
and 40 months after the seizures—indicate that the
State’s Attorney did not coordinate the resolution of plain­
tiffs’ state-court cases, either with each other or with
plaintiffs’ federal civil rights case. Cf. Munsingwear, 340
U. S., at 39–40 (stating that a lower court judgment would
have been vacated even though an action of the party
seeking review had brought about the mootness because
that action—a commodity being decontrolled by Executive
Order—was basically unrelated); see also Fleming v.
Munsingwear, Inc., 162 F. 2d 125, 127 (CA8 1947).
For these reasons, we believe that the presence of this
federal case played no significant role in the termination
of the separate state-court proceedings. This conclusion is
reinforced by the fact that neither party, although aware
of Bancorp, suggested the contrary at oral argument.
Indeed, both parties argued against mootness at oral
argument, a fact that further suggests that a desire to
avoid review in this case played no role at all in producing
the state case terminations. Tr. of Oral Arg. 5–11, 33–38.
And if the presence of this federal case played no role in
causing the termination of those state cases, there is not
present here the kind of “voluntary forfeit[ure]” of a legal
remedy that led the Court in Bancorp to find that consid­
erations of “fairness” and “equity” tilted against vacatur.
We consequently conclude that we should follow our
ordinary practice, thereby “clear[ing] the path for future
relitigation of the issues.” Munsingwear, 340 U. S., at 40.
Thus, nothing in this opinion prevents the plaintiffs from
bringing a claim for damages based on the conduct alleged
in their complaint. Id., at 37–40.
We therefore vacate the judgment of the Court of Ap­
peals and remand the case to that court with instructions
to dismiss.
It is so ordered.
Cite as: 558 U. S. ____ (2009) 1
Opinion of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–351
_________________
ANITA ALVAREZ, COOK COUNTY STATE’S
ATTORNEY, PETITIONER v. CHERMANE
SMITH ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[December 8, 2009]
JUSTICE STEVENS, concurring in part and dissenting in
part.
While I agree that this case is moot and join Parts I and
II of the Court’s opinion, I would not vacate the judgment
of the Court of Appeals. Following the teaching of our
decision in U. S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, 513 U. S. 18 (1994), I would apply the general
rule against vacating appellate judgments that have be
come moot because the parties settled.
Bancorp set forth the basic principles for determining
whether to vacate a case that has become moot. The
overriding concern is equitable: “From the beginning we
have disposed of moot cases in the manner ‘ “most conso
nant to justice” . . . in view of the nature and character of
the conditions which have caused the case to become
moot.’ ” Id., at 24 (quoting United States v. Hamburg-
Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S.
466, 477–478 (1916), in turn quoting South Spring Hill
Gold Mining Co. v. Amador Medean Gold Mining Co., 145
U. S. 300, 302 (1892) (alteration in original)). The “public
interest” must be considered as part of this equitable
inquiry, Bancorp, 513 U. S., at 26, 27, and that interest is
generally better served by leaving appellate judgments
intact. “ ‘Judicial precedents are presumptively correct
2 ALVAREZ v. SMITH
Opinion of STEVENS, J.
and valuable to the legal community as a whole. They are
not merely the property of private litigants . . . .’ ” Id., at
26 (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v.
U. S. Philips Corp., 510 U. S. 27, 40 (1993) (STEVENS, J.,
dissenting)). Hence, we will typically vacate a judgment
when the party seeking review has been “frustrated by the
vagaries of circumstance” or “when mootness results from
unilateral action of the party who prevailed below.” Ban
corp, 513 U. S., at 25. But we will typically decline to
vacate when “the party seeking relief from the judgment
below caused the mootness by voluntary action,” id., at 24,
including action taken in good faith and in conjunction
with the opposing party. Even when “respondent agreed
to [a] settlement that caused the mootness,” it remains
“petitioner’s burden, as the party seeking relief from the
status quo of the appellate judgment, to demonstrate not
merely equivalent responsibility for the mootness, but
equitable entitlement to the extraordinary remedy of
vacatur.” Id., at 26. “[M]ootness by reason of settlement
does not justify vacatur of a judgment under review.” Id.,
at 29.
In my view, the Court has misapplied these principles.
To be sure, the “settlement” between the parties in this
case might be distinguished from the more conventional
settlement reached by the parties in Bancorp. And we
have no evidence to suggest that petitioner returned re
spondents’ property prior to the conclusion of our review
with the purpose or expectation of manufacturing moot
ness. Nevertheless, petitioner’s decision to return the
automobiles when it did appears to have been legally
discretionary, as was the “compromise settlement” that it
reached with respondent Waldo regarding her cash, ante,
at 8. In light of petitioner’s purposive and voluntary
action that caused the mootness—along with its failure to
alert us to the relevant facts or to explain why vacatur
would serve the public interest—I believe it has failed to
Cite as: 558 U. S. ____ (2009) 3
Opinion of STEVENS, J.
carry its burden to “demonstrate . . . equitable entitlement
to the extraordinary remedy of vacatur.” Bancorp, 513
U. S., at 26.
There was a third option for disposing of this case: We
could have dismissed the writ of certiorari as improvi
dently granted. Like denying the petition in the first
place, that disposition would have preserved the judgment
below. At the time we granted certiorari on February 23,
2009, petitioner had already resolved the underlying
property disputes for five of the six named respondents.
See ante, at 4, 8–9. It was entirely predictable that the
final settlement would soon follow. Moreover, the briefing
in this case has revealed a disagreement over basic de
scriptive questions of Illinois law, questions that were not
passed upon below. Compare Brief for Petitioner 60–66
with Brief for Respondents 41–44. And, of course, we have
no way of knowing how the District Court would have
applied the Court of Appeals’ remand order, which left it
great discretion to “fashion appropriate procedural relief”
“with the help of the parties.” Smith v. City of Chicago,
524 F. 3d 834, 838 (CA7 2008). It has become clear that
the Court was overhasty in deciding to review this case;
the improvidence of our grant provides an additional
reason why we should not vacate the work product of our
colleagues on the Court of Appeals.
I respectfully dissent from Part III of the Court’s opinion
and from its judgment.