function, or reflects, by the record, a congressional intent to punish. 468 U.S. at 852.
The historical definition of punishment traditionally encompasses death sentences, imprisonments, banishment, the punitive confiscation of property and legislative bars to participate by individuals or groups in specific employments or professions. 468 U.S. at 852. "Sanctions that ordinarily would not be considered punishment in the penal context may be severe enough to be treated as punishment for bill of attainder purposes." McMullen v. United States, 953 F.2d 761, 766 (2d Cir. 1992). Public Law 102-393, § 633 does not impose any of those traditional punishments. While plaintiffs argue that their property has been confiscated, within the context of bill of attainder, the revocation of Crazy Horse does not constitute a punitive confiscation. 640 Broadway Renaissance Co. v. Cuomo, 740 F. Supp. 1023, 1035-36 (S.D.N.Y. 1990), aff'd, 927 F.2d 593 (2d Cir. 1991).
Nor is the purpose of the Public Law 102-393, § 633 punitive. The Court must determine whether the act can reasonably be said to further nonpunitive legislative purposes. Nixon, 433 U.S. at 476-77. If the only purpose of the Act appears to be punishment the act is unconstitutional. 433 U.S. at 477.
As discussed above, the record shows that the purpose of Public Law 102-393, § 633 was the protection and preservation of health by preventing the enhanced appeal of alcohol use among Native Americans.
While in the context of First Amendment analysis, this court found that the statute did not directly advance that interest, and was more extensive than necessary to serve that interest, the purpose of the statute itself is substantial and nonpunitive. It is important to note that under the First Amendment the statute failed a significantly higher standard of review than is at issue in the bill of attainder context. As was indicated in the equal protection analysis, however, the statute would pass the lowest of standards, the rational basis test, which is most similar to the test herein defined for the bill of attainder. Under the Bill of Attainder Clause the only question with regard to the purpose is whether the government is pursuing nonpunitive goals, Selective Servs. Sys., 468 U.S. at 853-54, and given that far more severe penalties have been upheld as nonpunitive for bill of attainder purposes, Linnas v. INS, 790 F.2d 1024, 1030 (2d Cir.), cert. denied, 479 U.S. 995 (1986), the implication of Public Law 102-393, § 633 cannot be considered punishment.
Finally, with regard to the second characteristic of a bill of attainder, the legislative record does not demonstrate an intent to punish. Selective Servs. Sys., 468 U.S. at 852. "Only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." Flemming v. Nestor, 363 U.S. 603, 617 (1960). The congressional record does not evince this clear proof. Rather the record shows that Congress intended to prohibit the use of the name Crazy Horse due to concerns about alcohol use among Native Americans, and concerns about the offensiveness of the product name. While witnesses before the House Select Committee did express indignation at Hornell's use of the name Crazy Horse, such proof is insufficient to find that the members of Congress sought to punish Hornell for use of the name. LILCO v. Cuomo, 666 F. Supp. 370, 405 (N.D.N.Y. 1987), vacated in part, 888 F.2d 230 (2d Cir. 1989).
Therefore, because Public Law 102-393, § 633 does not single out an individual for punishment, or inflict punishment on the identified individual, the statute is not a bill of attainder. On this claim, therefore, it is respectfully recommended that summary judgment be granted in favor of defendants.
F. Taking of Property Without Just Compensation
Plaintiffs also claim that Public Law 102-393, § 633 constitutes a taking of property without just compensation, in violation of the Fifth Amendment. Defendants argue only that this Court does not have jurisdiction to evaluate this claim; they state that only the United States Court of Claims, pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1), has jurisdiction over claims for damages. However, plaintiff has sought a declaratory judgment that Public Law 102-393, § 633 is unconstitutional, not damages from the government. This Court clearly has jurisdiction to decide whether there has been a taking within the meaning of Takings Clause. See Jim Young Develop. Corp. v. State Highway Comm'n of Missouri, 56 F.R.D. 38, 40 (W.D. Mo. 1971) ("The applicable rule regarding federal jurisdiction . . . of condemnation actions . . . is that the question of whether property was taken without due process of law or just compensation constitutes a 'federal question' within the meaning of [ 28 U.S.C. § 1331].") (citing Cuyahoga River Power Co. v. City of Akron, 240 U.S. 462 (1916); Raymond v. Chicago Union Traction Co., 207 U.S. 20 (1907); Foster v. City of Detroit, 405 F.2d 138 (6th Cir. 1968); Foster v. Herley, 330 F.2d 87 (6th Cir. 1964); Haczela v. City of Bridgeport, 299 F. Supp. 709 (D. Conn. 1969); Sayre v. United States, 282 F. Supp. 175 (N.D. Ohio 1967)); see also Narramore v. United States, 960 F.2d 1048 (Fed. Cir. 1992).
Thus, the remaining questions ore whether the Crazy Horse COLA is property for the purposes of the Takings Clause, and whether there has been a taking. Assuming, without deciding, that the COLA is property, see Cabo Distributing Co. v. Brady, 1992 U.S. Dist. LEXIS 21130, No. C-92-2591-DLJ, slip op. at 18-19 (N.D. Cal. Oct. 22, 1992) (COLA for Black Death Vodka is a legitimate entitlement and therefore property under Takings Clause analysis), this Court is not convinced that revocation of the COLA constitutes a taking.
Challenges of governmental action under the Takings Clause are to be decided on an ad hoc basis. Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224 (1986). Three factors are considered in the determination of whether a taking has been effected: the economic impact of the regulation, the extent to which the regulation has interfered with distinct investment backed expectations, and the character of the government action. Connolly, 475 U.S. at 225.
Although plaintiffs have made only general statements and offered no substantive documentation with respect to the economic losses they will incur if the Crazy Horse COLA is revoked, it is likely that some economic loss would be shouldered by plaintiffs if Public Law 102-393, § 633 were upheld and enforced. It is also probable that enforcement would have a significant impact on plaintiffs' "investment backed expectations" for the product.
Nevertheless, Public Law 102-393, § 633 does not constitute a taking under the third factor to be considered. For government action to have the character of a taking, it must "physically invade or misappropriate assets for its own." Connolly, 475 U.S. at 225. The Court has repeatedly emphasized that there must be a taking for public use to characterize government action as a taking in violation of the Fifth Amendment. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000-01 (1983). Even the "adjustment of benefits and burdens of economic life to promote the common good" is insufficient to constitute a taking. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978), reh'g denied, 439 U.S. 883 (1978).
Here, it is indisputable that the government has not seized the property of plaintiffs for its own or the public's use. Therefore, Public Law 102-393, § 633 is not a taking without just compensation in violation of the Fifth Amendment, and as such it is respectfully recommended that summary judgment on this issue be granted in favor of defendants.
G. Separation of Powers
Plaintiffs' final allegation is that Congress violated the principles of separation of powers, as delineated in Articles I, II, and III of the Constitution, when it limited the discretion of the BATF by enacting Public Law 102-393, § 633. It is the finding of the undersigned that as a matter of law, no violation of separation of powers exists, and that summary judgment on this ground must be granted in favor of defendants.
The foundation of the separation of powers doctrine is that the Constitution divides the powers of the federal government into three defined categories: legislative, executive, and judicial. The declared purpose of dividing the powers of government was to secure the preservation of liberty by providing "avenues for the operation of checks on the exercise of governmental power." Bowsher v. Synar, 478 U.S. 714, 722 (1986). The system of separated powers and checks and balances established in the Constitution is regarded as a "self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise Inc., 115 L. Ed. 2d 236, 111 S. Ct. 2298, 2309 (1991) (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976)). While the Constitution mandates that each of the three branches of government remain free from control of either of the others, the Framers did not require that each branch must be entirely separate and distinct. Mistretta v. United States, 488 U.S. 361, 380 (1989). As set forth by Justice Jackson, "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Mistretta, 488 U.S. at 381 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring op.)).
Nevertheless, the legislative branch of government maintains constitutional powers that are more extensive and less susceptible to precise limits than either of the other two branches. In order to "forestall the danger of encroachment beyond the legislative sphere the constitution imposes two basic and related constraints on the Congress." Metropolitan Washington Airports Authority, 111 S. Ct. at 2310. First, it may not "invest itself or its Members with either executive power or judicial power." 111 S. Ct. at 2310 (quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928)). Second, when Congress exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered" procedures specified in Article I. INS v. Chadha, 462 U.S. 919, 951 (1983).
The first constraint on Congress is illustrated in Bowsher v. Synar, 478 U.S. 714 (1986), wherein the Court concluded that the Comptroller General's role in exercising executive functions was violative of the doctrine of separation of powers because Congress may not retain the powers of removal over an officer performing executive functions. The second congressional constraint is set forth in INS v. Chadha, 462 U.S. 919 (1983), which determined that Congress may not exercise legislative power without following the bicameral and presentment procedures specified in Article I.
In this case, Public Law 102-393, § 633 does not violate either of the two constitutional limits of Congress' powers as enunciated in Bowsher and Chadha. Congress has neither retained the power of removal or appointment over an officer exercising executive functions, nor has it attempted to exercise its legislative power outside the boundaries of Article I. Congress legislatively delegated the authority to issue COLAs to the ATF. The Constitution requires Congress to articulate policies and standards that would serve to confine the discretion of administrative agencies like BATF to whom Congress has delegated power. Mistretta, 488 U.S. at 369. The statute here is a proper exercise of Congress' responsibility to define the boundaries of the agency's authority. Clearly, Congress had the power to define further its delegation of authority to BATF, as it did legislatively in Public Law 102-393, § 633.
Therefore, since Congress implemented its directive modifying BATF's delegated authority to issue COLAS in accordance with the procedures set out in Article I, it did not violate the separation of powers principle by enacting Public Law 102-393, § 633. It is respectfully recommended that summary judgment on this claim be granted in favor of defendants.
For the reasons stated above, it is respectfully recommended that summary judgment in favor of the plaintiff be granted on the basis that Public Law 102-393, § 633 violates the First Amendment of the Constitution. On the claims alleging violations of the Equal Protection Clause, Due Process Clause, Takings Clause, Bill of Attainder Clause, and Separation of Powers doctrine, it is respectfully recommended that summary judgment be granted in favor of defendants.
Although this Court has found that Public Law 102-393, § 633 violates the First Amendment for the reasons discussed above, this decision should not be read as either condoning or endorsing plaintiffs' choice of name for their product Crazy Horse Malt Liquor. The Court can well appreciate that the use of the name of a revered Native American leader, who preached sobriety and resisted exploitation under the hand of the United States government, is offensive and may be viewed as an exploitation of Native Americans throughout this country. The choice may be particularly insensitive given the ample documentation of alcohol abuse and its destructive results among Native Americans. Nevertheless, a price we pay in this country for ordered liberty is that we are often exposed to that which is offensive to some, perhaps even to many. It is from our exposure to all that is different that we best learn to address it, change it, and sometimes tolerate and appreciate it. "Freedom of speech may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (Douglas, J.). To those who are offended by the use of the Crazy Horse Malt Liquor label, the directive of the district court in Sambo's of Ohio, Inc. v. Toledo, 466 F. Supp. 177, 180 (N.D. Ohio 1979) is particularly apt:
If they are offended by the word [Crazy Horse] not only can they refuse to patronize the plaintiffs, but they, too, can erect signs, carry placards, or publish advertisements designed to persuade others to refuse to patronize the plaintiffs. That is what freedom of speech is all about. One cannot have freedom of speech for himself if it can be denied to others, nor is speech free if only innocuous utterances are permitted. . . . It would be selling our birthright for a mess of pottage to hold that because language is offensive and distasteful even to a majority of the public, a legislative body may forbid its use.
It is in this spirit that the undersigned respectfully recommends that Public Law 102-393, § 633 be declared an unconstitutional violation of the First Amendment.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
Dated: Brooklyn, New York
February 5, 1993
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE