# Petition for Writ of Certiorari — Brodsky, New York State Assembly Member v. Consolidated Edison Company of New York, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0471%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 1045 ## Text YT: . 0 O2 47 Saue 502008 GRIS@E OF THE CLERK No. In The Supreme Court of the United States NEW YORK STATE ASSEMBLY MEMBER, RICHARD L. BRODSKY, Petitioner, Vv. GOVERNOR GEORGE E. PATAKI, CHAIRMAN OF THE PUBLIC SERVICE COMMISSION, MAUREEN O. HELMER, COMMISSIONERS OF THE NEW YORK STATE PUBLIC SERVICE COMMISSION, THOMAS J. DUNLEAVY, JAMES D. BENNETT, LEONARD D. WEISS AND NEAL N. GALVIN, NEW YORK STATE ASSEMBLY SPEAKER, SHELDON SILVER, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE SECOND CIRCUIT COURT OF APPEALS PETITION FOR WRIT OF CERTIORARI OF PETITIONER RICHARD L. BRODSKY JOHN L. PARKER, ESQ.* RICHARD L. BRODSKY, ESQ. 86" New York State Assembly District 5 West Main Street, Suite 205 Elmsford, NY 10523 (914) 345-0432 *Attorney of Record PRINTINGHOUSE PRESS, LTD 10 EAST 39th STREET NEW YORK, NY 10016 (212) 719-0990 QUESTIONS PRESENTED Should the Supreme Court settle the conflict and clarify the confusion among the Circuits with regard to the proper legal test to be applied in bill of attainder cases? Should the Bill of Attainder provisions of the Constitution be used to undercut the well-settled and effective powers of States in the fields of economic regulation and utility ratemaking? Should Bill of Attainder Clause be extended, for the first time, to other than natural persons, specifically to regulated monopolies? li TABLE OF CONTENTS STATEMENT OF THE CASE 2 REASONS FOR GRANTING THE PETITION 8 I. Il. THE DECISION OF THE SECOND CIRCUIT IS IN DIRECT CONFLICT WITH DECISION OF THE D.C. CIRCUIT, AND CONFLICTS WITH THE LEGAL TEST USED BY THE FIFTH AND SEVENTH CIRCUITS AND THIS COURT IN BILL OF ATTAINDER CASES, AND IF UPHELD WILL UNDERMINE THE ABILITY OF STATES TO RESTRAIN CORPORATE WRONGDOING AND REGULATE MONOPOLIES. 8 A. The Second Circuit Conceded that Chapter 190 Does Not Run Afoul of the Three Requirements of the Bill of Attainder “Punishment” Prong. 11 B. The Second Circuit Creates An Additional Dispositive Inquiry in the Bill of Attainder Analysis. 12 THE SECOND CIRCUIT ERRED IN USING THE BILL OF ATTAINDER CLAUSE TO LIMIT STATE REGULATORY AUTHORITY OVER UTILITIES BY CREATING A PROPERTY RIGHT IN A PORTION OF AN OVERALL UTILITY RATE IN CONTRAVENTION OF DECISIONS OF THIS COURT, AND STRIKING DOWN A STATE REGULATORY STATUTE OTHERWISE CONSTITUTIONAL, THEREBY PLACING IN QUESTION THE RATEMAKING AUTHORITY OF STATE LEGISLATURES. 15 A. The Regulation of Utilities is a State Legislative Function. 15 i } ? : | ili B. Utilities Have No Property Interest In A Portion of Their Overall Rate. 17 C. Bill of Attainder Protections Are Not A Substitute For Other Constitutional Protections. 17 TD. The Second Circuit Decision Raises Substantial Separation of Power Questions. 18 III. THE UNWARRANTED EXTENSION OF BILL OF ATTAINDER ~ PROTECTIONS TO CORPORATIONS GENERALLY, AND REGULATED MONOPOLIES SPECIFICALLY, IS A SIGNIFICANT ERROR AND A QUESTION OF SIGNIFICANT PUBLIC IMPORTANCE. 19 A. This Court Has Been Explicit in its Application of Bill of Attainder Protections to the Weak. 22 B. The History and Purpose of the Bill of Attainder Clause Are “Purely Personal,” and Therefore, Should Not Be Applied To Corporations. 22 CONCLUSION 28 APPENDIX A: Opinion, Court of Appeals for the Second Circuit (June 5, 2002). APPENDIX B: Memorandum and Order of the District Court for the Northern District of New York (October 10, 2000). APPENDIX C: Bill of Attainder Clause of Article I, Section 10 of the United States Constitution. APPENDIX D: Chapter 190 of the Laws of 2000. iV APPENDIX E: N.Y. Transportation Corp. Law § 11 (McKinney 2000). TABLE OF AUTHORITIES FEDERAL CASES Bellsouth Communications v. Federal Communications Comm'n, 144 F.3d 58 (D.C. Cir. 1998) (“Bellsouth I’). 9,10 Bellsouth Communications v. Federal Communications Comm'n, 162 F.3d 678 (D.C. Cir. 1998)(“ Bellsouth II”). 9, 10 Club Misty, Inc. v Laski, 208 F.3d 615 (7% Cir. 2000). 9,10 Con Edison v. Pataki, et. al., 117 F.Supp.2d 257 (N.D.N.Y. 2000). Lo Con Edison v. Pataki, et. al., 292 F.3d 338 (274 Cir. 2002). 1, 5, 6, 7, 8, 10, 11, 12, 13, 17, 18, 19, 21, 23, 25 Cummings v. Missouri, 71 U.S. 277 (1866). 22, 24 Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989). 16,17, 18 Ex parte Garland, 71 U.S. 333 (1866). yt A x First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978). 23, 24 Flemming v Nestor, 363 U.S. 603 (1960). 8 Knoxville v. Knoxville Water Co., 212 U.S. 1 (1909). 16 Landgraf v. USI Products et al., 511 U.S. 244 (1994). 23 Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). 26 vi Navegar, Inc. v. United States, 192 F.3d 1050 (D.C. Cir. 1999). 9 Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977). 6,8, 9, 10, 11, 13, 14, 15, 18, 24, 28, 29 Pierce et al. v. Carskadon. 83 U.S. 234 (16 Wall.) (1872). 22 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). 21 SBC Communications, Inc. v. FCC, 154 F.3d 226 (5t Cir. 1998). 9,10, 11 Selective Service System v. Minnesota Public Interest Research Group et al., 468 U.S. 841 (1984). 7, 8,9, 12, 13, 15, South Carolina v. Katzenbach, 383 U.S. 301 (1966). 20, 21, 22, 28 United States v. Brown, 381 U.S. 437 (1965). 21, 22, 28 United States v. Lovett, 328 U.S. 303 (1946). 22, 24, 28 United States v. White, 322 U.S. 694 (1944). 23, 27 Wilson v. United States, 221 U.S. 361 (1911). 25 STATE CASES Matter of Brooklyn Union Gas v. Maltbie, 245 A.D. 74 (1935). 17 People ex rel. Municipal Gas Co. v. Public Serv. Comm'n, 224 N.Y. 156 (1998). 17 IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI OPINIONS BELOW Petitioner respectfully prays that a writ of certiorari issue to review the judgment below. The opinion of the United States Court of Appeals for the Second Circuit appears at Appendix A to the petition and is reported at 292 F.3d 338 (N.D.N.Y. 2000). The opinion of the District Court for the Northern District of New York appears at Appendix B to the petition and is reported at 117 F.Supp.2d 257 (24 Cir. 2002). JURISDICTION The date on which the United States Court of Appeals for the Second Circuit decided the case was June 5, 2002. No petition for rehearing was timely filed in this case. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). This petition is timely filed within ninety days of entry of the June 5, 2002 judgment of the Court of Appeals. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Bill of Attainder Clause of Article I, Section 10 of the United States Constitution. Chapter 190 of the Laws of 2000. N.Y. Transportation Corp. Law § 11 (McKinney 2000). STATEMENT OF THE CASE This case concerns the unprecedented striking down of a state statute that set a utility rate on the grounds it is an unconstitutional bill of attainder. The petition seeks review of the Second Circuit Court of Appeals’ decision affirming in part a District Court decision that held that New York’s Chapter 190 of the Laws of 2000 (“Chapter 190”) was an unconstitutional bill of attainder. See Appendix D. Chapter 190 was passed by the Legislature and signed by the Governor in response to the negligent operation of the Indian Point II nuclear power facility by Consolidated Edison (“Con Edison”), which caused a release of radiation and shut down of the plant on February 15, 2000. Chapter 190 prohibited Con Edison from charging its customers the estimated $250 million in additional costs required to replace the power previously produced at Indian Point. After an appropriate legislative investigation Chapter 190 was passed by both the New York State Assembly and the New York State Senate and signed into law on August 8, 2000. The facts which prompted the Legislature to enact Chapter 190 date back at least to 1974. That year, Con Edison put Indian Point II into service using Model 44 steam generators. In 1981, Con Edison and eight other utilities sued Westinghouse, the manufacturer of the Model 44 generators alleging them to be defective and subject to leaks, which would progressively degrade over time. As a result of the litigation, Con Edison and the other utilities received replacement generators in 1988. Unlike every other utility, Con Ed knowingly refused to replace the defective generators, placing them into on-site storage. Con Edison continued to operate the original Model 44 steam generators it knew and alleged to be defective oS a OE et eh tt et Sc an Soe lh Se between 1988 and 2000, choosing to perform repairs on leaking and cracked tubes on numerous occasions, rather than replace the generators. On February 15, 2000, a tube rupture did occur, causing a radiation release and an emergency shutdown of Indian Point II. As a result of that emergency shutdown, Con Edison purchased replacement power to provide to their customers. The additional cost of the replacement power was estimated at $600,000 per day, for a total in excess of $250 million. In 1997 the Public Service Commission (“PSC”) allowed Con Edison to employ a rate recovery mechanism that includes a monthly fuel adjustment clause (“FAC”). Con Edison’s FAC included a specific provision limiting its share of the cost of replacing Indian Point II power in the event of an outage. Con Edison is the only utility in New York operating a nuclear power plant that has the benefit-of a FAC that specifically shields the utility from the costs of a nuclear outage, and initially allows these additional replacement power costs to be directly passed to ratepayers ‘without PSC review. In its continuing exercise of its plenary authority to regulate utilities and set rates, on November 10, 1999 the Assembly conducted a Hearing on safety and economic issues relating to Indian Point II and other facilities. Following the February 15% outage, the Assembly reconvened the Hearing on March 3, 2000. The Con Edison Chief Operating Officer and other Con Edison employees were invited to and did give sworn testimony with respect to the outage, the use of the FAC, and other relevant matters. Con Edison was asked to submit written responses to questions that it failed to answer at the Hearing. Shortly after the Hearing, three Members of the New York State Assembly followed up by letter vith Con Edison, again requesting Con Edison’s responses to the Assembly’s _additional questions. Thirty-eight days later, Con Edison submitted a written response. 4 The Legislature, in light of its investigative Hearings and other information it obtained, found that Con Edison had knowingly operated Indian Point in an improper manner, causing the increase in costs to ratepayers. It further determined that, in the context of an overall rate that was just and reasonable, the costs of the outage should be borne by the Company rather than innocent ratepayers, stating in the Legislative Findings The operator of a nuclear generating facility has a high duty of care to protect the health, safety and economic interests of its customers. Rate regulation of nuclear operators should discourage the taking of risks with regard to potential threats to public health and safety. By continuing to operate steam generators known to be defective, and thereby increasing the risk of a radioactive release and/or an expensive plant outage, the Consolidated Edison Company failed to exercise reasonable care on behalf of the health, safety and economic interests of its customers. Therefore it would not be in the public interest for the company to recover from ratepayers any costs resulting from the February 15, 2000 outage at the Indian Point 2 Nuclear Facility. The Governor, prior to signing the legislation that would become Chapter 190, concluded that based upon the evidence that has been adduced to date, it is clear that Con Edison’s maintenance and inspection practices at the Indian Point 2 facility were flawed and that Con Edison continued to operate steam generators at the facility well past the point when it was safe to do so.... The factual record that has been developed to date paints a compelling picture of questionable management decisions and requires immediate intervention to protect Con Edison’s ratepayers from bearing the cost of these decisions. Memorandum of Governor George E. Pataki (August 8, 2000). abies ssh dso 3 | : 5 it seen sa seb ether saad sei ~ cones amen Following passage of Chapter 190, Con Edison filed a complaint in the U.S. District Court against Governor George Pataki and certain PSC officials on August 14, 2000. Petitioners, New York State Assembly Members later joined the action as Intervenor-Defendants as authorized by Order dated September 6, 2000. In its complaint, Con Edison challenged the constitutionality of Chapter 190 and sought a preliminary and permanent injunction. Con Edison claimed that Chapter 190 violated its right to equal protection under the Fourteenth Amendment; constituted an unlawful bill of attainder in violation of Article I, § 10 of the U.S. Constitution; violated its Fourteenth Amendment right to procedural due process; impaired its contractual rights under Article 1, § 10 of the U.S. Constitution; was an unjust taking under the Fourteenth Amendment; violated 42 U.S.C. § 1983; and violated the Supremacy Clause of the U.S. Constitution (Article VI, Clause 2). By Decision and Order dated October 10, 2000, the District Court found that Chapter 190 was unconstitutional because it violated the Equal Protection Clause and constituted an unlawful bill of attainder. Con Ed v. Pataki, 117 F.Supp.2d 257 (N.D.N.Y. 2000). A timely notice of appeal was filed to the Second Circuit Court of Appeals seeking the reversal of the District Court decision. Oral arguments were held by the Second Circuit on May 21, 2001. By Decision dated June 5, 2002, the Second Circuit Court of Appeals affirmed the judgment of the District Court. Judge Walker noted in his decision that it was based solely on Con Ed’s bill of attainder claim, and that the Circuit Court was “skeptical, however, that the [Equal Protection] Clause would require invalidation of Chapter 190.” Con Ed v. Pataki, et al., 292 F.3d 338, 346 n. 2 (2"4 Cir. 2002). The case was remanded to the District Court to correct a scrivener’s error in judgment. In its decision the Second Circuit made a threshold determination that corporations enjoy the constitutional protection of the Bill of Attainder Clause, stating that for “several reasons, we think the protection afforded by the Bill of Attainder Clauses is not a ‘purely personal guarantee’ and therefore, is one of the constitutional rights enjoyed by corporations.” Con Ed, 292 F.3d at 347. The opinion states that it is not a “purely personal guarantee” because “[w]hen a corporation suffers an economic injury its shareholders suffer the same economic injury.” Con Ed, 292 F.3d at 348. Thus, the Second Circuit held that “corporations must be considered ‘individuals,’ . . . that may not be singled out for punishment under the Bill of Attainder Clause.” Citation omitted. Con Ed, 292 F.3d at 349 citing Nixon, 433 U.S. at 468. The Second Circuit then set forth and applied the three- pronged test established by this Court to determine if a statute is a bill of attainder, to wit: whether the act: (1) “determines guilt and inflicts punishment”; (2) “upon an identifiable individual”; and (3) is “without provision of the protections of a judicial trial.” Con Ed, 292 F.3d at 346 citing Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468 (1977). “{T]Jhose factors are the evidence that is weighted together in resolving a bill of attainder claim.” Con Ed, 292 F.3d at 350 citing Nixon, 433 U.S. at 473-78. With respect to factors (2) and (3), the Second Circuit concluded, per its threshold determination, that Con Ed is an “individual,” and that “[i]n the present case, the lack of a judicial trial is incontrovertible.” Con Ed, 292 F.3d at 346. The Second Circuit then considered the remaining prong, (1) “punishment,” which is itself subject to a three part inquiry: (a) the historical test (whether the statute falls within the “historical meaning of legislative punishment”); (b) the functional test (whether the statute, “reasonably can be said to further non-punitive legislative purposes”); and (c) the motivational test (whether the legislative record “evinces a congressional intent to punish”). Con Ed, 292 F. 3d at 350 citing Selective Service System v. Minnesota Public Interest Research Group et al., 468 U.S. 841, 852 (1984). Under (a), the historical test, the Second Circuit recognized that Chapter 190 did not assess a fine or disability and that this Court has held that an adverse utility-rate decision is not “confiscatory.” The Second Circuit conceded that Chapter 190 did not fall within the historical meaning of legislative punishment, holding however, “[a] statute need not fit within the historical category of punishment to be considered such.” Con Ed, 292 F.3d at 351. 7 Under (b), the functional test, the Second Circuit found numerous non-punitive legislative purposes. “By preventing Con Ed from passing through the costs associated with the IP2 outage that it would not have incurred ordinarily, the legislature prevented Con Ed’s ratepayers from being forced to bear the costs that the legislature viewed as negligently incurred. ... This is not necessarily a punitive purpose.” Con Ed, 292 F.3d at 352. “Chapter 190 also functions to deter similar conduct by Con Ed and other public utilities in the future.” On the other hand, the Second Circuit found that even though Chapter 190 contained legitimate non-punitive reasons, “eliminating harm to innocent third parties is a purpose consistent with punishment,” and that “general and specific deterrence are also traditional justifications for punishments.” Con Ed, 292 F.3d at 352-53. The Second Circuit concluded that it could “discern no wholly non-punitive purpose to justify the entire cost-allocation prohibition in Chapter 190.” Con Ed, 292 F.3d at 351, 352-54. The Second Circuit then set forth its opinion that “[nJeither of the legitimate purposes set out above — prevention of harm to ratepayers and deterrence of inefficient, monopolistic conduct — can justify preventing Con Ed from passing these costs along to ratepayers.” Con Ed, 292 F.3d at 353-54. Under (c), the motivational test, the Second Circuit sought to determine if the legislative record evinces a legislative intent to punish, indicating that “[o]nly the clearest proof could suffice to establish the unconstitutionality of a statute on [the] ground [of legislative history.]” Con Ed, 292 F.3d at 354 citing Flemming v. Nestor 363 U.S. 603, 617 (1960). The “[s]tatements by a smattering of legislators ‘do not constitute [the required] unmistakable evidence of punitive intent.’” Con Ed 292 F.3d at 354 citing Selective Serv. Sys., 468 U.S. at 856, n. 15. The Second Circuit referred to two statements made by Senators in floor debate, and said, “the evidence of punitive intent in the legislative record in this case is insufficient on its own to justify a conclusion that Chapter 190 is punitive.” Emphasis added. Con Ed, 292 F.3d at 354-55. “But the stated intent of at least some legislators . . . to punish Con Ed reinforces our independent conclusion that a substantial part of the legislation cannot be justified by any legislative purpose but punishment.” Emphasis added. Con Ed, 292 F.3d at 355. Having made the above determinations the Second Circuit, referring to some of the language in Nixon, made an additional inquiry and determination, the “less burdensome alternative” test. The Second Circuit stated that because Chapter 190 disallowed certain costs that it believed should be recovered by Con Edison, “there are plainly ‘less burdensome alternatives by which [the] legislature . . . could have achieved its legitimate nonpunitive objectives,’” and used that determination to justify overturning Chapter 190 as a Bill of Attainder. Con Ed, 292 F.3d at 354. REASONS FOR GRANTING THE PETITION I. THE DECISION OF THE SECOND CIRCUIT IS IN DIRECT CONFLICT WITH DECISION OF THE D.C. CIRCUIT, AND CONFLICTS WITH THE LEGAL TEST USED BY THE FIFTH AND SEVENTH CIRCUITS AND THIS COURT IN BILL OF ATTAINDER CASES, AND IF UPHELD WILL UNDERMINE THE ABILITY OF STATES TO RESTRAIN CORPORATE WRONGDOING AND REGULATE MONOPOLIES. be ale tae One significant reason for granting a certiorari petition is the existence of a conflict among the Circuits with respect to - the law applied to a particular case. There is, in this case, such a conflict among the four Circuits which have decided cases seeking application of Bill of Attainder Clause protections to corporations. The Second Circuit took language from this Court’s decision in Nixon suggesting that the existence of a “less burdensome alternative” might be of significance to the outcome of that particular case, and applied it to the legislative remedy existing in Chapter 190, thereby invalidating the statute. The D.C. Circuit, on the other hand, explicitly refused to engage in any judicial inquiry into the availability of alternative methods of achieving the legislative goal. “In other words, it does not matter that Congress arguably could have enacted different legislation.” Emphasis added. Bellsouth Communications v. Federal Communications Comm'n, 162 F.3d 678, 689 (D.C. Cir. 1998)(“ Bellsouth II’); Citing BellSouth v. FCC, 144 F.3d 58 (D.C. Cir. 1998)(“BellSouth I’). See also Navegar, Inc. v. United States, 192 F.3d 1050, 1068 (D.C. Cir. 1999). (“Therefore, since the prohibition effectuated by the act ... exhibits a purely punitive purpose ... it does not constitute an unconstitutional bill of attainder.”) This is a conflict between the Circuits of a kind that this Court has resolved, and in this case should resolve. The Fifth and Seventh Circuits did not explicitly reject the “less burdensome alternative” inquiry, but did not apply it in reaching their decisions, and rejected Bill of Attainder Clause claims made by the corporate plaintiffs before them.! ' Nixon, 433 U.S. at 468; SBC Communications,, 154-F.3d at 242; Bellsouth II, 162 F.3d at 684; Selective Seruc. Sys., 468 U.S. at 852. The Seventh Circuit ruled on other constitutional grounds, but stated, “The requirement of punishment is most clearly satisfied when a punitive purpose is conjoined with a characteristically punitive sanction, such as a fine.” Club Misty, 208 F.3d at 617 Internal citations omitted. 10 The Second Circuit, unable to invalidate Chapter 190 as a bill of attainder using the correct test, added a new and dispositive “less burdensome alternative” requirement in its punishment analysis as its grounds for finding Chapter 190 _ to be a bill of attainder.? This places the Second Circuit in conflict with the other circuits as to the proper legal test to be applied in Bill of Attainder Clause cases. This is the heart of the conflict among the Circuits. This conflict is compounded by a fundamental uncertainty in each of the Circuits about whether or not corporations are to be afforded bill of attainder protections, and the unexamined “assumption” by several circuits that they are. See SBC Communications, Inc. v. FCC, 154 F.3d 226, 234 (5% Cir. 1998); Bellsouth I, 144 F.3d at 63; Bellsouth II, 162 F.3d at 684; Club Misty v. Laski, 208 F.3d 615, 617 (7% Cir. 2000). This conflict and confusion should be remedied by this Court. The conflict appears clearly in the respective opinions of _the D.C., Fifth, and Second Circuits. The D.C. Circuit’s language is explicit: In addition, as we noted in BellSouth I, Congress may read the evidence before it in a different way than might this court or any other, so long as it remains clear that Congress was pursuing a legitimate nonpunitive purpose. In other words, it does not matter that Congress arguably could have enacted different legislation in an effort to open the long distance markets to competition. Emphasis added. Bellsouth II, 162 F.3d at 689. Citing BellSouth I, 144 F.3d 58. Internal citations omitted. The D.C. Circuit clearly rejects the “less burdensome alternative” test that the Second Circuit relies upon in this case. 2 The Second Circuit asserts “we look beyond simply a rational relationship of the statute to a legitimate public purpose for ‘less burdensome alternatives.’” Con Ed, 292 F.3d at 350 citing Nixon, 433 U.S. at 482. i i 4 4a 7 j 4 at ” capac. — 1] The Fifth Circuit similarly did not apply a “less burdensome” analysis in its Bill of Attainder Clause analysis. The Fifth Circuit stated “In the light of the 400 years of case law and history that we have considered, we believe that Nixon stands, ultimately and concisely, for the following proposition: if legislation has a legitimately nonpunitive function, purpose, and structure, it does not constitute punishment for purposes of the Bill of Attainder Clause, even where it imposes the historically punitive sanction of barring designated individuals from engaging in certain professions.” SBC Communications, 154 F.3d at 241. The Fifth Circuit's failure to apply such a “less burdensome alternative” test is different from the approach of the Second Circuit. A. The Second Circuit Conceded that Chapter 190 Does Not Run Afoul of the Three Requirements of the Bill of Attainder “Punishment” Prong. First, the Second Circuit admitted that Chapter 190 has many legitimate non-punitive purposes, including the one most central to the Legislature’s investigation and findings. “The legislature could legitimately conclude that, as between Con Ed, the party that caused the outage, and the ratepayers, parties having nothing whatsoever todo with ~ the outage, Con Ed should bear the costs attributable to its negligence. The legislature could decide that it would be unfair to force ratepayers to absorb the costs of Con Ed’s error. If such a conclusion were reached by a court in a negligence action, for instance, no one would reasonably conclude that the court had “punished” Con Ed.”3 Con Ed, 292 F.3d at 352. 3 Despite finding a legitimate non-punitive purpose, the Second Circuit reasoned that “by lumping all costs of the outage together and forcing Con Ed to absorb them, the legislature piled on a burden that was obviously disproportionate to the harm caused.” Con Ed, 292 F.3d at 353. The Second Circuit concluded that 12 Second, the Second Circuit conceded that Chapter 190 does not meet the historical meaning of punishment, such as a fine, confiscation of property, or denial of the right to work. It recognized that this Court has held that an adverse utility-rate decision is not “confiscatory.” However, without any other historical analysis, it concluded that “[a] statute need not fit within the historical category of punishment to be considered such.” Con Ed, 292 F.3d at 351. And third, the Second Circ1it conceded the absence of evidence of the traditional indicia of punitive legislative intent. “The evidence of punitive intent in the legislative record in this case is insufficient on its own to justify a conclusion that Chapter 190 is punitive. But the stated intent of at least some legislators ... to punish Con Ed reinforces our independent conclusion that a substantial part _ of the legislation cannot be justified by any legislative purpose but punishment.” Emphases added. Con Ed, 292 F.3d at 354-55. The Second Circuit does not offer any other evidence of punitive legislative intent for its “independent conclusion.” B. The Second Circuit Creates An Additional Dispositive Inquiry in the Bill of Attainder Analysis. Having thus far failed to invalidate Chapter 190 by applying the traditional test, the Second Circuit looked for because Chapter 190 did not allow all of these undetermined costs to Con Edison, and that some of these costs would have been incurred even in the absence of Con Edison’s misconduct it found no “wholly non-punitive purpose to justify the entire cost-allocation prohibition.” Emphasis added. Con Ed, 292 F.3d at 351-54. It cited no authority for such a restrictive test, which in fact directly ‘conflicts with this Court’s holding in Selective Sroc. Sys., which characterized the relevant test as “whether the challenged state can be reasonably said to further nonpunitive goals.” Emphasis added. 468 U.S. at 853-54. EERE VANS DLR ELC AE ODE CAEEOER ISLA GERARD OR 13 new grounds to invalidate that statute. It decided to “look beyond simply a rational relationship of the statute to a legitimate public purpose for ‘less burdensome alternatives by which [the] legislature . . . could have achieved its legitimate nonpunitive objectives.’” Citations in original. Con Ed, 292 F.3d at 350, citing Nixon, 433 U.S. at 482. The Second Circuit mistakenly created this additional line of inquiry and made it dispositive of the question of punishment. The Second Circuit ignored the warnings of this Court about the language in Nixon. In Nixon, this Court stated that One final consideration should be mentioned in light of the unique posture of this controversy. In determining whether a legislature sought to inflict punishment on an individual, it is often useful to inquire into the existence of less burdensome alternatives by which that legislature (here Congress) could have achieved its legitimate nonpunitive objectives. Nixon, 433 U.S. at 482. Thus, Nixon limited the “less burdensome alternative” inquiry to the unique circumstances of the Nixon case. Most importantly, it did so as part of the overall determination, not as the Second Circuit held, as an additional and dispositive element of the existing three prong ‘punishment’ inquiry under Selective Sroc. Sys., 468 U.S. at 852, and not as the sole basis for overturning a statute as a bill of attainder. The overreaching by the Second Circuit becomes clearer upon a complete reading of the Nixon decision. In Nixon, mindful of the “social and political realities of 1974” and the “political turbulence unprecedented in our history,” this Court stated that it is not free to invalidate Acts of Congress based upon inferences that we may be asked to draw from our personalized reading of the contemporary scene or recent history. In judging the constitutionality of the Act, we may only look to its terms, to the intent expressed by Members of Congress who voted its 14 passage, and to the existence or nonexistence of legitimate explanations for its apparent effect. Nixon, 433 U.S. at 484. This Court has made clear that the “less burdensome” inquiry relied on by the Second Circuit should not be used as subterfuge to strike down legislation because it does not comport with a court’s social or economic policy preferences. The Second Circuit created a new, dispositive test for finding punitive intent without any record evidence of such intent; it admitted that restraining Con Edison from charging ratepayers for the consequences of its own misdeeds is a legitimate purpose; and it was unable to find any historical precedent for defining a rate allocation system as punishment. It then chose to substitute it own policy preferences for the measured decision of the Legislature and the Governor. This is unconstitutional, unwise and will serve to endanger economic regulatory decisions made by legislative bodies across the nation. The sheer unworkability of the Second Circuit's “less burdensome” test is a function of the difficulty, if not the impossibility, of determining which of several potential legislative remedies is less burdensome. This test would have been difficult enough if the Second Circuit sought the “least” burdensome alternative but it will always be possible to argue to a Court that some other or new remedy is “less” burdensome than that selected by the legislature. Courts are particularly unprepared to make these relative policy judgments. The Second Circuit’s “less burdensome alternative” analysis, if upheld, will place the federal courts in the untenable and unconstitutional position of substituting their judgments about the relative merits of competing economic regulatory options, decisions which are functionally and constitutionally best made by elected legislative bodies. In the instant case, the fact that a “less burdensome alternative” existed, in the opinion of the Second Circuit, is the only evidence cited of the Legislature’s intent to punish. 15 The Second Circuit's belief that the Legislature might have taken a different route with Chapter 190 is not reason for it to be struck down as a bill of attainder when it otherwise fails to meet the requirements of Nixon and Selective Sruc. Sys., and does not violate other constitutional provisions. In contrast to the correct legal test applied by the Fifth, Seventh, and D.C. Circuits, the Second Circuit’s reliance on this additional element, if upheld, will open a floodgate of litigation challenging otherwise valid state economic regulation, and will probably result in the re-litigation of the issues in the cases decided by the other Circuits, and may provoke the Federal Civil Rights statutes to challenge state economic regulatory statutes. This Court should use its supervisory power to clarify this conflict and reaffirm that the Nixon case was in its own words, “unique” and that the traditional three-pronged test, unaltered, remains the correct standard. This conflict among the Circuits as to the correct test to be applied is compounded by the assumption by three Circuits that corporations enjoy the protections of the bill of attainder provision of the Constitution, as opposed to the specific holding by the Second Circuit to the same effect. Since the federal intrusion into state regulatory authority over corporations is substantial, and the consequences of this new uncertainty are significant, this Court should decide for itself whether a new constitutional right will be conferred, as discussed below in III. II. THE SECOND CIRCUIT ERRED IN USING THE BILL OF ATTAINDER CLAUSE TO LIMIT STATE REGULATORY AUTHORITY OVER UTILITIES BY CREATING A PROPERTY RIGHT IN A PORTION OF AN OVERALL UTILITY RATE IN CONTRAVENTION OF DECISIONS OF THIS COURT, AND STRIKING DOWN A STATE REGULATORY STATUTE OTHERWISE CONSTITUTIONAL, THEREBY PLACING IN QUESTION THE RATEMAKING AUTHORITY OF STATE LEGISLATURES. 16 A. The Regulation of Utilities is a State Legislative Function. The regulation of corporate economic behavior, especially of regulated monopolies, is a traditional and important function of state government. This Court has firmly and repeatedly held that utility ratemaking is a legislative function, which can be exercised directly by the legislature or delegated to a subsidiary body. The existence of the subsidiary body does not diminish the authority of the legislature to act directly. By inserting a bill of attainder analysis the Second Circuit has created a new, unworkable, federal judicial intrusion into the operations of state legislatures and their ability to protect their citizens from economic wrongdoing by regulated monopolies. The Second Circuit plainly ignored this Court’s holding in Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989). “[I]t cannot seriously be contended that the Constitution prevents state legislatures from giving specific instructions to their utility commissions. We have never doubted that state legislatures are competent bodies to set utility rates.” Duquesne, 488 U.S. at 313. This Court affirmed that ratemaking remained a legislative function, even as states across the nation chose to set aside the historical practice of individual utility rates for individual utilities being set by individual statutes, and began to establish regulatory commissions. See Knoxville v. Knoxville Water Co., 212 U.S. 1 (1909). In Knoxville, this Court carefully eschewed an opportunity for judicial intervention into the ratemaking process, noting that “[t]he function of ratemaking is purely legislative in its character, and this is true, whether it is exercised directly by the legislature itself or by some subordinate or administrative body.” Knoxville, 212 U.S. at 8. New York Courts have similarly ruled on numerous occasions that utility regulation remains essentially 17 legislative in nature. See People ex rel. Municipal Gas Co. v. Public Serv. Comm'n, 224 N.Y. 156, 166-67 (1998) (“The Legislation . . . intended to retain unto itself the power of fixing rates . .. We cannot discern in such retention of legislative power any violation of constitution provision.”); Matter of Brooklyn Union Gas v. Maltbie, 245 A.D. 74, 75 (1935) (“Ratemaking is a legislative function; the commission acts by delegated authority. Legislative methods may be followed in arriving at a decision and rate.”)* The Second Circuit decision intrudes bill of attainder protections upon this legislative power in ways that will cause uncertainty and disruption of the regulatory process unless clarified by this Court. B. Utilities Have No Property Interest In A Portion of Their Overall Rate. The Second Circuit compounded its initial attack on the legislative ratemaking function by declaring, again in contravention of Duquesne and other decisions of this Court, that a utility has a property right in a portion of an overall utility rate which is otherwise just and reasonable. The Second Circuit ruled that Con Edison was deprived of a property interest by Chapter 190, which undisputedly deals with only one portion of Con Edison’s overall rate structure, the Fuel Adjustment Clause. “Chapter 190 clearly deprived Con Edison of a property interest.” Con Ed, 292 F.3d at 351. Con Ed has never asserted, indeed concedes, that their overall rate is adequate and fair. In Duquesne, this Court ruled that a utility does not have a property right in a 4 An additional consequence of the Second Circuit decision may be that ratemaking, whether done by legislatures or by their designees will be constrained to use judicial processes required by the Second Circuit in this case in spite of well settled doctrine that legislative methods may be used to set rates. —_—_—__—~ 18 component of its overall rate, stating that “[i]f the total effect of the rate order cannot be said to be unreasonable, judicial inquiry ...is atanend.” Duquesne, 488 U.S. at 310. The creation of a property right in a portion of a rate will disrupt the traditional, well-settled, and effective state regulatory structures and policy, and invite burdensome litigation when either legislatures or their designees change a portion of an overall rate structure. C. Bill of Attainder Protections Are Not A Substitute For Other Constitutional Protections. — This Court has specifically ruled that bill of attainder protections are not to be a substitute for other constitutional protections used to attack legislative exercise of the police power. As Justice Brennan warned, “[h]owever expansive the prohibition against bills of attainder, it surely was not intended to serve as a variant of the equal protection doctrine.” Nixon, 433 U.S. at 471. Con Edison initially attacked the statute as constitutionally invalid on four separate grounds, equal protection, due process, violation of contract and bill of attainder. All these matters were extensively briefed and argued in both the District and Circuit courts. The District Court held for Con Ed on equal protection and bill of attainder grounds. The Second Circuit discounted the equal protection holding and relied solely on bill of attainder to invalidate the statute. Con Ed, 292 F.3d at 345 n. 2. Chapter 190 was carefully drawn to preserve all constitutional protections, and yet protect citizens against the economic consequences of wrongdoing and negligence by a monopoly corporation. Having met the appropriate constitutional thresholds for such economic regulation, the Legislature should not be hamstrung by a new, additional, and unworkable restriction on its regulatory authority. This is especially true when the judicial intervention takes the form of a new constitutional right, such as the bill of ENE, BARR PRR RIE Sd RRA BETA AR RO SET ses PEAS ES hs SER 19 attainder protections afforded to corporations. Only the most thorough and dispositive declaration by this Court should be the basis of the profound and wrenching reconfiguration of the state-federal relationship on the regulation of corporations created by state law, especially regulated monopolies that have both public and private attributes. III. THE UNWARRANTED EXTENSION OF BILL OF ATTAINDER PROTECTIONS TO CORPORATIONS GENERALLY, AND REGULATED MONOPOLIES SPECIFICALLY, IS A SIGNIFICANT ERROR AND A QUESTION OF SIGNIFICANT PUBLIC IMPORTANCE. The protections of the Bill of Attainder Clause have previously been applied by this Court only to natural persons or groups of natural persons who were oppressed or disfavored by the government for their political or personal activities. The essential purposes of the English ~and American restrictions on bills of attainder have been to protect those without the power or resources to protect themselves from the overwhelming power of legislative oppression, as other sections of the Constitution protect against executive oppression. The extension of bill of attainder protections to private corporations is without precedent, inconsistent with the purposes and history of bills of attainder, and a dramatic federal intrusion into state economic regulation. The Second Circuit apparently was aware of the significance of its decision when it acknowledged that it was “unable to unearth any case in which a corporation has ultimately prevailed in challenging legislation as a bill of attainder.” Emphasis added. Con Ed, 292 F.3d at 348. This is especially true when applied to regulated monopolies, against whom state regulatory and ratemaking powers are the sole and acknowledged protection for people subject to the monopoly. 20 The decision of the Second Circuit will have a significant impact on the legal, economic and practical structures of everyday life because it may expose numerous laws regulating economic activity to constitutional challenge - even in highly regulated industries such as utilities where legislatures have traditionally exercised broad powers. Corporations may rely on the Second Circuit’s decision to attempt to overturn legitimate corporate regulation of individual or groups of corporations. And, because the specificity requirement of the Bill of Attainder Clause is met where the legislation singles out “an identifiable group,” corporations could use the language and logic of the Second Circuit to bring bill of attainder challenges to many commonplace economic measures that limit the conduct of or place regulatory burdens upon particular industries. The consequences of such uncertainty will be felt by every court and every legislative body in this country. Corporations do have protections against unjust regulatory initiatives in the Takings Clause, the Equal Protection Clause and the Due Process Clause. The Bill of Attainder Clause protections will be a burdensome and unnecessary restriction of legislative activity. The Second Circuit extension of Bill of Attainder Clause protections to corporations is based on a misreading of the test used by this Court when extending constitutional rights to corporations and a misreading of this Court’s previous decisions. The Second Circuit acknowledged that this Court has not “directly” ruled on the question, citing South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). In Katzenbach this Court rejected a claim by South Carolina that the Voting Rights Act was a bill of attainder against the states of the Union. Katzenbach, 383 U.S. 301. This Court held that the Clause did not apply to states because “courts have consistently regarded the Bill of Attainder Clause . . . only as protection for individual persons and private groups, those who are peculiarly vulnerable to non-judicial determination 21 of guilt.” Katzenbach, 383 U.S. at 324. There is no reason to think this reference encompasses corporations. The other decision of this Court relied upon by the Second Circuit, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), has an even more tenuous connection to the issue here, for it did not involve a bill of attainder claim. Rather, Plaut was a challenge to a provision of the Securities and Exchange Act of 1934 on the ground that it required federal courts to reopen final judgments in violation of principles of separation of powers and due process. The Second Circuit cited dictum in Plaut, 514 U.S. at 239 n. 9 for the assertion that “a bill of attainder may target a ‘single individual or firm’” without discussion of the definition of the word.> Emphasis in original. Con Ed, 292 F.3d at 347. The Second Circuit, based upon these two cited cases from this Court, concluded with circular logic that “[a] corporation shares some of the characteristics of a ‘private group,’ but we need not decide whether corporations are included within the category of private groups because the. — reference to private groups plainly contemplates protection for some entities in addition to individual natural persons.” Con Ed, 292 F.3d at 347. In fact, this Court has applied Biil of Attainder Clause protections only five times in its history, and only to natural persons and groups of natural persons who are particularly weak or powerless because of their vulnerability or unpopularity. In United States v. Brown, 381 U.S. 437 (1965), the act struck down made it a crime for present and former — Dictionary definitions of “firm” make it clear, however, that a corporation, with its independent legal existence, is not a firm. A firm is “a partnership of two or more persons that is not recognized as a legal person distinct from the members composing it.” Merriam-Webster’s Dictionary of Law, visited on August 18, 2002 (http://dictionary.lp.findlaw.com). A “business entity or enterprise. Unincorporated business. Partnership of two or more persons.” Blacks Law Dictionary, 6" Ed. (1990) at 634. 22 members of the Communist Party to serve as officers of a labor union. In United States v. Lovett, 328 U.S. 303 (1946) the act provided that no federal budget appropriation could be used for salaries of three specifically named government employees who had been named as subversives by the House Committee on Un-American Activities unless reappointed by the President and confirmed by the Senate. In Ex parte Garland, 71 U.S. 333 (1866), the act conditioned admission to the practice of law upon an oath that the individual never bore arms against or supported enemies of the United States. In Cummings v. Missouri, 71 U.S. 277 (1866), the act made it a crime to practice law or be a clergyman without taking an oath that the individual had not been disloyal to the United States. Finally, in Pierce et al. v. Carskadon. 83 U.S. 234 (16 Wall.) (1872), a case very similar to Ex parte Garland and Cummings, this Court protected individuals denied the right to seek judicial redress because they were ex-Confederates. In these successful bill of attainder cases, the challenged statutory sanctions were against natural persons, Communists or Confederates, people perceived as subversives or traitors, and widely considered politically disloyal to the United States government. The Second Circuit’s decision wrongly takes a considerable leap from these precedents when it finds a corporation analogous to one or more unpopular natural persons. A. This Court Has Limited Its Application of Bill of Attainder Protections to the “Peculiarly Vulnerable.” “Courts have consistently regarded the Bill of Attainder Clause of Article I,. . . only as protections for individual persons and private groups, those who are ‘peculiarly vulnerable to non-judicial determinations of guilt.” Katzenbach, 383 U.S. at 324, citing Brown, 381 U.S. 437 and Ex 23 parte Garland, 4 Wall 332. See also Landgraf v. USI Products et al., 511 U.S. 244, 253 (1994) (“The prohibitions on Bills of Attainder in Art. I §§ 9-10, prohibit legislatures from singling out disfavored persons.”). The Second Circuit ignored this Court’s application of Bill of Attainder protections only to “disfavored” or “peculiarly vulnerable” natural persons because, in the case of a multi-billion dollar monopoly, it cannot make such a finding, any more than Con Edison itself has ever made such a claim. The notion that it can be used as a defense for state regulation of corporate or monopoly wrongdoing : stands the constitution on its head and leaves individual and groups of natural persons at the mercy of a state created i legal fiction, a monopoly utility. The limitation of bill of attainder protections to one or more natural persons is | consistent with the history, purposes, and application by this Court of the Bill of Attainder Clause. B. The Nature, History and Purpose of the Bill of Attainder Clause Are “Purely Personal,” and Therefore, Should Not Be Applied To Corporations. This Court has carefully considered the “nature, history, and purpose” of constitutional protections sought by corporations, and granted some and denied others. In this case, the Second Circuit concluded “the protection afforded by the Bill of Attainder Clauses is not a “’purely personal’ guarantee” and therefore is one of the constitutional rights enjoyed by corporations.” Con Ed, 292 F.3d at 347. “{C]ertain ‘purely personal’ guarantees . . . are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantees has been limited to the protection of individuals.” First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 778-79 n. 14 (1978) (citing United States v. White, 322 U.S. 694, 698-701 (1944)). The test of “whether or not a particular guarantee is ‘purely personal’ or is unavailable to corporations for some other reason depends 24 on the nature, history, and purpose of the particular constitutional provision.” Bellotti, 435 U.S. at 778-79. This Court undertook an extensive review of the history of the Bill of Attainder Clause in Nixon. This Court stated that “[iJn England a bill of attainder originally connoted a parliamentary Act sentencing a named individual or i identifiable members of a group to death” and also proscribed “enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than executions.” Nixon, 433 U.S. at 473 - 474 (citing United States v. Lovett at 323-324 (Frankfurter, J., concurring); Cummings v. Missouri, 71 U.S. at 323 and Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, at 97 (1956). As an example, this Court cited a specific bill of attainder legislatively sentencing James, Duke of Monmouth to death. Nixon, 433 U.S. at 474 (citing 1 Jac. 2, c.2 (1685). This Court cited Blackstone for provisions that usually accompanied such a bill, such as “forfeiture of the condemned person’s property to the King and the corruption of his blood, whereby his heirs were denied the right to his estate,” practices dating back to the Norman conquest of England. Nixon, 433 U.S. at 474 (citing 4 W. Blackstone Commentaries 388.) This Court’s historical analysis also discussed its expansion of the bill of attainder protection to include legislative enactments “barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those specifically branded as disloyal.” Nixon, 433 U.S. at 474. Citations omitted. The only historical reference to the history and purposes of the Bill of Attainder Clause made by the Second Circuit is its unexamined reference to ancient English law. “Con Ed cites several English statutes that imposed disabilities on English boroughs, hardly natural persons. See, e.g., 1 & 2 25 Geo. 4, c.47 (Eng. 1821).”¢ Con Ed, 292 F.3d at 348. The Second Circuit offers no other evidence or analysis of the history of Bill of Attainder protections.” This Court has spoken clearly about the limited value of such early English precedents in Wilson, “[w]e have not overlooked the early English decisions to which our attention has been called ... but these cannot be deemed controlling. The corporate duty, and the relation of the appellant as the officer of the corporation to its discharge, are to be determined by our “laws.” Wilson v. United States, 221 U.S. 361 at 385-86. The Second Circuit's historical analysis, resting purely on these English precedents as it does, is incompatible with the instructions of this Court. With respect to the nature and purpose of the Bill of Attainder Clause, the Second Circuit failed to consider factors that motivated the Founders to include bill of attainder protections in the Constitution, and their considerable resentment towards the nature and purpose of English Bills of Attainder. The Founders saw a compelling need to proscribe the legislative power misused against individuals. James Madison, in Federalist 44, noted that such Bills are “contrary to the first principles of the social compact” and that Americans “have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community.” The Federalist Papers. Clinton Rossiter, ed. Mentor Books, New York (1961) at 282. Alexander Hamilton quoting Blackstone in Federalist 84, stated that © It should be noted that in English law a borough is a governmental entity, not a private corporation. 7 The Second Circuit, instead stated that the Clause’s history has been “aptly described elsewhere . . . we see no need to reiterate it here.” Con Ed, 292 F.3d at 346. 26 “To bereave a man of life “O says he” or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism.” Id. at 511-2. There is never the slightest hint that the Legislative effort in Chapter 190 to protect the citizenry from the economic misdeeds of its own legal creations could rise to the level of a bill of attainder. A comparison of decisions granting and denying constitutional protections to corporations further illuminates why bill of attainder protections should not be granted to corporations. In Marshall v. Barlow’s, Inc., this Court found that the constitutional provision against unreasonable search and seizure applied to corporations. 436 U.S. 307 (1978). This Court held that “it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence.” Marshall, 436 U.S. at 312. In reaching this conclusion, this Court in looking to the American colonial experience stated that “[t]he general warrant was a recurring point of contention in the Colonies immediately preceding the Revolution. The particular offensiveness it engendered was acutely felt by the merchants and business men whose premises and products were inspected for compliance with the several parliamentary revenue measures that most irritated the colonists.” Marshall, 436 USS. at 310. This Court also cited the Virginia Bill of Rights, which predates the U.S. Bill of Rights, which specifically “opposed ‘general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed.” Id. (citing in footnote H. Commager, Documents of American History 104 (8% ed. 1968). Thus, this Court’s review of the historical basis of the Fourth Amendment’s Warrant Clause protections showed both the history and purpose of the protection, and that it was intended to apply to and protect the merchants and other businessman of the day. There is no similar history with respect to bill of attainder protections. 27 In White, this Court held that the right against self- incrimination set forth in the Fourth and Fifth Amendments of the Constitution did not apply to corporations because their purpose was “directed primarily to the protection of individual and personal rights.” White, 322 U.S. at 698. This Court reasoned that the constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals. It grows out of the high sentiment and regard of our jurisprudence for conducting criminal trials and investigatory proceedings upon a plane of dignity, humanity and impartiality. It is designed to prevent the use of legal process to force from the lips of the accused individual the necessary evidence to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him. Physical torture and other less violent but equally reprehensible modes of compelling the production of incriminating evidence are thereby avoided. White, 322 U.S. at 698.. The application of the Bill of Attainder Clause to corporations thus has no grounding in history, law or precedent, and is completely inconsistent with the traditional and necessary power of states to protect their citizens from corporate wrongdoing. As noted above, there is no claim here that Chapter 190 fundamentally interferes with Con Edison’s ability to conduct its business, nor that Chapter 190 created an overall rate of return that is unfair or unjust. There was a question about who should pay the costs associated with the undisputed negligence of Con Edison with respect to Indian Point. The Legislature, faced with a specific set of actions by Con Edison and their economic consequences apportioned the economic harm as between innocent ratepayers and a culpable monopoly. There is no basis in history or logic to use bill of attainder protections to limit state authority over a monopoly utility. 28 If, arguendo, bill of attainder protections were to be afforded to private corporations, their further application to regulated monopolies would not be sound doctrine because of the acknowledged, quasi-public nature of such utilities. Con Edison is not a corporation as that term is commonly understood and used, but instead is a unique creation of New York State Law. Con Edison is a quasi-governmental public utility publicly vested with public responsibilities such as the right of condemnation. See N.Y. Transportation Corp. Law § 11 (McKinney 2000). Thus, the line between government and private corporation is significantly blurred in this case. As this Court noted in Katzenbach, > State may not maintain a bill of attainder claim. Katzenbach, 383 U.S. at 324. As such, the protections of the bill of attainder cannot attach to Con Edison. The limited use of this constitutional provision by this Court to acts of unfairness against the politically unpopular, rather than as a shield against appropriate economic regulation of corporations was best summed up by Justice Brennan who, when speaking for this Court in Nixon noted any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality. Furthermore, every person or group made subject to legislation which he or it finds burdensome may subjectively feel, and can complain, that he or it is being subjected to unwarranted punishment. United States v. Lovett. [citation omitted in original.] However expansive the prohibition against bills of attainder, it surely was not intended to serve as a variant of the equal protection doctrine, invalidating every Act of Congress or the States that legislatively burdens some persons or groups but not all other plausible individuals. In short, while the Bill of Attainder Clause serves as an important “bulwark against tyranny,” United States v. Brown, 381 U.S. at 443, it does not do so by limiting Congress to the choice of 29 legislating for the universe, or legislating only benefits, or not legislating at all. 433 U.S. 425, 471-72. CONCLUSION As this Court noted in Nixon, “ [forbidden legislative punishment is not involved merely because the Act imposes burdensome consequences.” 433 U.S. at 472. While Con Edison may argue that Chapter 190 is burdensome, it does not impose punishment within the meaning of the Bill of Attainder precedents of this Court. For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, /) 4 —™ / f oe Dt PP ge i 7 ps sr Sf: o ae, Ty, a / Jolin L. Parker, Esq.* Counsel Richard L. Brodsky, Esq. 86t New York State Assembly District 5 West Main Street, Suite 205 Elmsford, NY 10523 (914) 345-0432 (914) 345-0436 fax *Attorney of Record Date: September 3, 2002. APPENDIX A A-1 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Plaintiff-Appellee, v. GEORGE E. PATAKI, in his official capacity as Governor of the State of New York, MAUREEN O. HELMER, in her official capacity as Chairman of the New York State Public Service Commission, THOMAS J. DUNLEAVY, JAMES D. BENNETT, LEONARD D. WEISS and NEAL N. GALVIN in their official capacities as Commissioners of the New York State Public Service Commission, Defendants- Appellants, RICHARD L. BRODSKY, New York State Assembly Member and SHELDON SILVER, New York State Assembly Speaker, Intervenors-Defendants-Appellants. Docket Nos. 00-9358(L), 00-9426(CON), 00-9442(CON) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 292 F.3d 338; 2002 U.S. App. LEXIS 10762 May 21, 2001, Argued June 5, 2002, Decided PRIOR HISTORY: [**1] Defendant state officials appeal from a judgment of the United States District Court for the Northern District of New York (Lawrence E. Kahn, District Judge) permanently enjoining enforcement of a state statute against plaintiff Consolidated Edison Company of New York, Inc. on the grounds that the statute violated the Equal Protection Clause of the Fourteenth Amendment and the Bill of Attainder Clause of Article I, Section 10 of the United States Constitution. Consolidated Edison Co. of N.Y., Inc. v. Pataki, 117 F. Supp. 2d 257, 2000 U.S. Dist. LEXIS 14985 (N.D.N.Y. 2000) A-2 DISPOSITION: Affirmed and remanded for correction of judgment. COUNSEL: LAURA ETLINGER, Assistant Solicitor General of the State of New York (Eliot Spitzer, Attorney General of the State of New York, Daniel Smirlock, Deputy Solicitor General of the State of New York, Peter H. Schiff, Senior Counsel, on the brief), Albany, NY, for Defendant-Appellant Governor Pataki. LAWRENCE G. MALONE, Public Service Commission of the State of New York (Diane T. Dean, on the brief), Albany, NY, for Defendants-Appellants Commissioners of the Public Service Commission. RICHARD L. BRODSKY, ESQ., New York State Assembly, Counsel to the Majority (Rosemary Perez Jaquith, on the brief), Albany, NY, for Intervenors-Defendants-Appellants. GUY MILLER STRUVE, [**2] Davis, Polk & Wardwell (James D. Liss, Florence A. Crisp, Zachary D. Stern, Davis, Polk & Wardwell, Charles E. McTiernan, Jr., Richard J. Giglio, Scott A. Levinson, Roxana Barsalona, Consolidated Edison Company of New York, Inc., on the brief), New York, NY, for Plaintiff-Appellee. JOHN C. RICE, ESQ., Rice & Justice (Lawrence P. Justice, Bradley F. Rice, on the brief), Albany, NY, for Amicus Curiae Business Council of New York State, Inc. MICHAEL F. MCBRIDE, LeBoeuf, Lamb, Greene & MacRae, LLP (Bruce W. Neely, Martin G. Malsch, John W. Lawrence, LeBoeuf, Lamb, Greene & MacRae, LLP, Edward H. Comer and Henri Bartholmot, Edison Electric Institute, Robert W. Bishop and Ellen C. Ginsberg Nuclear Energy Institute, on ~~ A-3 the brief) Washington, DC, for Amici Curiae Edison Electric Institute and Nuclear Energy Institute. JUDGES: Before: WALKER, Chief Judge, JACOBS, Circuit Judge, LARIMER, Chief District Judge.” OPINION BY: JOHN M. WALKER, JR. OPINION: [*342] x JOHN M. WALKER, JR., Chief Judge: Defendant state officials appeal from a judgment of the [**3] United States District Court for the Northern District of New York (Lawrence E. Kahn, District Judge) permanently enjoining enforcement of a New York state statute against plaintiff Consolidated Edison Company of New York, Inc. (“Con Ed”) on the grounds that the statute violated the Equal Protection Clause of the Fourteenth Amendment and [*343] the Bill of Attainder Clause of Article I, Section 10 of the United States Constitution. We affirm solely on the basis of Art. I, § 10, but remand to the district court to correct a scrivener’s error in the judgment. BACKGROUND Plaintiff Con Ed is a public utility that provides electrical power to New York City. Among Con Ed’s power plants is the Indian Point 2 Nuclear Generating Facility (“IP2”) * The Honorable David G. Larimer of the United States District Court for the Western District of New York, sitting by designation. A-4 located in Westchester County, New York. The statute at the heart of this appeal was enacted in response to a power outage at IP2 caused by a defective generator. Until recently, IP2 produced electricity with four “Model 44” steam generators that Con Ed had purchased from the Westinghouse Corporation (“Westinghouse”) in 1972. In the late 1970s, Westinghouse learned that the steam generator tubes on both its Model 44 and 51 steam generators were subject [**4] to corrosion and failure. By 1997, seven of the eight nuclear power plants using the Model 44 had replaced their generators. Although other power plants apparently continued to use the similarly flawed Model 51 steam generators, only IP2 continued to use the flawed Model 44 generators. Con Ed purchased replacement generators for IP2 in 1985, but, prior to the incident at issue in this litigation, had never installed them. On February 15, 2000, a steam tube in one of IP2’s Model 44s developed a crack which released radioactive steam into the surrounding nonradioactive water that is converted to steam to turn IP2’s power-generating turbines. A subsequent investigation by.the federal Nuclear Regulatory Commission (“NRC”) and the New York State Public Service Commission (“PSC” or “the Commission”) revealed no evidence of elevated radiation levels offsite due to the incident. The cracked tube was promptly discovered and Con Ed took IP2 offline to replace the generator. By January 2001, it had finished replacing the damaged generator with one purchased in 1985 and restarted IP2. To cover electricity demand while IP2 was offline, Con Ed was forced to purchase electricity from other sources. [**5] Con Ed operates IP2 in a complex regulatory environment. The public health and safety aspects of its operations are regulated by the NRC under the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. (1994). The rates that Con Ed charges its customers are regulated by the PSC, an independent state regulatory body created early in the twentieth century. pa healt dG A-5 A 1997 settlement agreement resolved a number of outstanding disputes between Con Ed and the PSC that have no bearing on this appeal. The agreement amended Con Ed’s rate and was adopted in the form of a rate order by consent. Of relevance to this appeal, the agreement includes a so-called “fuel adjustment clause” (“FAC”), which allows Con Ed to pass certain costs along to its ratepayers in the form of temporary rate increases. Con Ed’s authority to pass costs through to ratepayers under the FAC is subject to statutory review by the PSC to determine whether those costs are prudently or “reasonably” incurred, in order to ensure just and reasonable rates. N.Y. Pub. Serv. Law §66(12)(k) (2001); see Long Island Lighting Co. v. Pub. Serv. Comm’n, 134 A.D.2d 135, 523 N.Y.S.2d 615, 620 (N.Y. App. Div. 1987). [**6] The PSC is empowered to bar Con Ed from passing imprudently incurred costs along to ratepayers and to force the utility to refund imprudently incurred costs already recouped. N.Y. Pub. Serv. Law § 66(12)(k) (2001). [*344] Pursuant to the FAC, Con Ed increased its rates to incerporate the cost of purchasing replacement electricity and the other costs associated with the outage. Soon after the incident, the PSC staff began a prudence investigation of the IP2 outage, and on March 30, 2000, the PSC itself initiated a prudence review. It is our understanding that this review is still incomplete as of the issuance of this opinion. On February 18, 2000, three days after the outage, the New York State Assembly issued a notice of a joint public hearing of the Assembly Committees of Energy, Environmental Conservation, and Corporations, Authorities, and Commissions, to be held on a variety of topics related to the outage and Con Ed’s operation of IP2. The notice listed potential topics including: the environmental effects of the incident, deterioration of facilities at IP2, the need for greater regulatory oversight of nuclear power in New York, and the potential sale of the IP2 A-6 plant. The hearing [**7] was held on March 3, 2000, and it covered the range of topics listed in the notice. Con Ed’s Chief Operating Officer, J. Michael Evans, and its Vice President of Maintenance and Construction, Stephen Quinn, testified. They later supplemented their testimony in a six- page letter to several members of the committee. On March 20, 2000, intervenors-defendants Representatives Brodsky and Silver introduced the bill that is the subject of the present lawsuit. See A. 10096, 2000 Assembly (N.Y. 2000). One week later, on March 27, the Assembly and Senate passed the bill without amendment. Governor Pataki signed it into law on August 8 as Chapter 190 of the Laws of 2000 (“Chapter 190”). See Act of Aug. 8, 2000, ch. 190, 2000 N.Y. Laws, (hereinafter, 2000 N.Y. Laws 190). Chapter 190 reads, in full, as follows: § 1. Declaration of legislative findings. The operator of a nuclear generating facility has a high duty of care to protect the health, safety and economic interests of its customers. Rate regulation of nuclear operators should discourage the taking of risks with regard to potential threats to public health and safety. By continuing to operate steam generators known to [**8] be defective, and thereby increasing the risk of a radioactive release and/or an expensive plant outage, the Consolidated Edison Company failed to exercise reasonable care on behalf of the health, safety and economic interests of its customers. Therefore it would not be in the public interest for the company to recover from ratepayers any costs resulting from the February 15, 2000 outage at the Indian Point 2 Nuclear Facility. § 2. With respect to the February 15, 2000 outage at the Indian Point 2 Nuclear Facility, the New York state public service commission shall prohibit the Consolidated Edison Company from recovering from its A-7 ratepayers any costs associated with replacing the power from such facility. Such prohibition shall apply to any such costs incurred until the conclusion of such outage, or incurred at any time until all defective steam generation equipment at the facility has been replaced, whichever occurs later. Such prohibition shall apply to automatic adjustment mechanisms as well as base rates or any other rate recovery mechanism. The commission shall order the company to refund any such costs which have been recovered from ratepayers. § 3. This act shall (**9] take effect immediately. The PSC has estimated that Con Ed would have been able to pass on to its customers approximately $ 250 million in increased [*345] costs that Chapter 190 requires it to internalize. On August 14, 2000, Con Ed filed suit in the District Court for the Northern District of New York, seeking a declaratory judgment and permanent injunction barring enforcement of the statute on various constitutional grounds and on August 17 moved for a preliminary injunction. Con Ed alleged that the statute violated the Equal Protection Clause of the Fourteenth Amendment, the Bill of Attainder Clause of Article I, Section 10, the Due Process Clause of the Fourteenth Amendment (alleging a violation of procedural due process and an uncompensated taking), the Supremacy Clause, and the Contracts Clause of Article I, Section 10. On September 6, 2000, the district court granted a motion by Representative Brodsky, a member of the Assembly, and Representative Silver, the speaker of the Assembly, to intervene in the suit. In a memorandum order dated October 10, 2000, the district court granted Con Ed’s request for a permanent injunction and denied as moot Con Ed’s motion for a preliminary [**10] injunction. Con Ed v. Pataki, 117 F. Supp. A-8 2d 257 (N.D.N.Y. 2000). The district court agreed with Con Ed that the statute violated the Equal Protection Clause, finding that Chapter 190 was not rationally related to the state’s legitimate interest in deterring negligence at nuclear power plants. Id. at 262-65. The district cqurt also held that Chapter 190 constituted an impermissible Bill of Attainder because the statute named Con Ed and was the product of a legislative intent to punish Con Ed. Id. at 265-71. The court expressly refused to reach Con Ed’s other constitutional claims. After judgment was entered on December 4, 2000, the defendants appealed. DISCUSSION Because we conclude that Chapter 190 is an unconstitutional bill of [**11] attainder, we affirm the district court. We need not and do not address Con Ed’s other constitutional theories.? I. The Bill of Attainder Clause of Article I, Section 10 1 The judgment incorrectly, and incomprehensibly, stated that “the case is DISMISSED in its ENTIRETY, in favor of the Plaintiff.” We accordingly remand for correction of this obvious scrivener’s error. See infra, Part I. ? We thus do not decide whether Chapter 190 violates the Equal Protection Clause, which supplied one basis for the district court’s injunction. We are skeptical, however, that the Clause would require invalidation of Chapter 190: “[M]ere underinclusiveness is not fatal to the validity of a law under... equal protection[,] even if the law disadvantages an individual or identifiable members of a group.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 471 n.33, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977) (internal citations omitted). To be so invalidated, the classification must have “no rational basis,” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 145 L. Ed. 2d 1060, 120 S. Ct. 1073 (2000), and we doubt that the present statute meets that standard. A-9 The Constitution includes two clauses prohibiting [**12] enactment of “bills of attainder”: Section 9 applies to Congress, Section 10 to the states. See U.S. Const. art. I, §§ 9, 10. The history of bills of attainder and of pains and penalties in England, which gave rise to the constitutional [*346] prohibitions in § 9 and § 10, has been aptly described elsewhere, and we see no need to reiterate it here. See In re Extradition of McMullen, 989 F.2d 603, 604-06 (2d Cir. 1993) (in banc). Briefly stated, a constitutionallyproscribed bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Adm’ of Gen. Servs., 433 U.S. 425, 468, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977); see also United States v. Lovett, 328 U.S. 303, 315, 90 L. Ed. 1252, 66 S. Ct. 1073, 106 Ct. Cl. 856 (1946) (“[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.”). Put another way, the Clause bars the imposition [**13} of punishment resulting from “trial by legislature.” United States v. Brown, 381 U.S. 437, 442, 14 L. Ed. 2d 484, 85 S. Ct. 1707 (1965). Under the definition quoted above from Nixon, a statute can be a bill of attainder only if (1) it “determines guilt and inflicts punishment,” (2) “upon an identifiable individual,” and (3) “without provision of the protections of a judicial 3 In English practice, bills of attainder imposed the death penalty. Other, less severe punishments were imposed by “bills of pains and penalties.” The Supreme Court has held that the constitutional prohibition reaches both. See United States v. Brown, 381 U.S. 437, 447, 14 L. Ed. 2d 484, 85 S. Ct. 1707 (1965); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L. Ed. 162 (1810) (Marshall, C.J.) (“A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.”). A-10 trial.” Nixon, 433 U.S. at 468. In the present case, the lack of [**14] a judicial trial is incontrovertible. Chapter 190 was enacted by the state legislature using purely legislative processes, without any additional protections akin to those present in a judicial trial. At issue, then, are only the questions of whether (1) Con Ed, singled out as it was by Chapter 190, is an “individual” that may invoke the protection of the Clause, (2) Chapter 190 “determines guilt, and (3) Chapter 190 “inflicts punishment.” We answer all three questions in the affirmative.4 ”” 4 Our analysis is unaffected by separation of powers principles, on which the district court relied heavily, 117 F. Supp. 2d at 268, citing Brown, 381 U.S. at 441, 443-45. Brown was decided under the Clause applicable to Congress in Article I, § 9, not that in § 10, which applies to the states. Brown’s statements about separation of powers doctrine are inapplicable to the § 10 Bill of Attainder Clause for the simple reason that the federal Constitution does not impose any particular separation of powers requirement on state governments: “How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself.” Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612, 81 L. Ed. 835, 57 S. Ct. 549 (1937); see also Mayor of Phila. v. Educ. Equal. League, 415 U.S. 605, 615 n.13, 39 L. Ed. 2d 630, 94 S. Ct. 1323 (1974) (“The Constitution does not impose on the States any particular plan for the distribution of governmental powers.”) (citing Sweezy v. New Hampshire, 354 U.S. 234, 256, 1 L. Ed. 2d 1311, 77 S. Ct. 1203 (1957) (Frankfurter, J., concurring)); Dreyer v. Illinois, 187 U.S. 71, 84, 47 L. Ed. 79, 23 S. Ct. 28 (1902) (“Whether the legislative, executive and judicial powers of a state shall be kept altogether distinct and separate . . . is for the determination of the state.”). Indeed, where § 10 is involved, our concern for the independent operation of each of the branches of government must be tempered by our concern about preserving to the states the choice of government structures. See 1 Laurence H. Tribe, American Constitutional Law § 2-4, at 132-33 (3d ed. 2000). —=-- ss thn Se ef . [**15] A. The Clause’s Applicability to Corporations Chapter 190 unquestionably singles out Con Ed: the utility is expressly named in the statute. The legislator defendants argue, however, that the Bill of Attainder Clause applies only to legislation that targets natural persons, not corporations such as Con Ed. We disagree. Although a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law,” Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636, 4 L. Ed. 629 (1819), a [*347] wide variety of constitutional rights may be asserted by corporations. See, e.g., Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 881 n.9, 84 L. Ed. 2d 751, 105 S. Ct. 1676 (1985) (equal protection); Marshall v. Barlow’s, Inc., 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978) (reasonable search and seizure); United States v. Martin Linen Supply Co., 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977) (double jeopardy); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976) (freedom of speech). Nevertheless, [**16] not all constitutional protections apply to corporations or apply as fully as they do to natural persons. See, e.g., United States v. Morton Salt Co., 338 U.S. 632, 651-52, 94 L. Ed. 401, 70 S. Ct. 357, 46 F.T.C. 1436 (1950) (privacy); Wilson v. United States, 221 U.S. 361, 382-86, 55 L. Ed. 771, 31 S. Ct. 538 (1911) (Fifth Amendment privilege against self-incrimination). The distinction between rights that may be asserted by corporations and those that may not is that “[c]ertain ‘purely personal’ guarantees . . . are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals.” First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 778-79 n.14, 55 L. Ed. 2d 707, A-12 98 S. Ct. 1407 (1978). Whether a right is purely personal “depends on [its] nature, history, and purpose.” Id. The applicability of the Bill of Attainder Clause to corporations remains unsettled in every circuit. Without ‘ directly ruling on the question, the Supreme Court has stated, without discussion, that the Clause provides “protections for individual persons and private groups [**17], those who are peculiarly vulnerable to nonjudicial determinations of guilt,” South Carolina v. Katzenbach, 383 US. 301, 324, 15 L. Ed. 2d 769, 86 S. Ct. 803 (1966) (emphasis added). A corporation shares some of the characteristics of a “private group,” but we need not decide whether corporations are included within the category of private groups because the reference to private groups plainly contemplates protection for some entities in addition to individual natural persons. The Court has also indicated in dictum that a bill of attainder may target a “single individual or firm.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 n.9, 131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995) (emphasis added). No Court of Appeals has held as much, though several have expressly assumed without deciding that the Clause is applicable to corporations, finding the Clause inapplicable in the particular cases for other reasons. See Club Misty, Inc. v. Laski, 208 F.3d 615, 617 (7th Cir. 2000); Navegar, Inc. v. United States, 338 U.S. App. D.C. 213, 192 F.3d 1050, 1065 (D.C. Cir. 1999); SBC Communications Inc. v. FCC, 154 F.3d 226, 234 & n.11 (5th Cir. 1998). [**18] For several reasons, we think the protection afforded by the Bill of Attainder Clauses is not a “purely personal’ guarantee[]” and therefore is one of the constitutional rights enjoyed by corporations. First, the “historical function” of the Clause has been to ensure the procedural protections of the judicial process for the attribution of guilt and imposition of punishment. See Nixon, 433 U.S. at 468-69; Brown, 381 U.S. at 442, 445; Lovett, 328 U.S. at 316-17; Cummings v. Missouri, 71 U.S. (4 Pe Set) ie eee Sw ae a ee ” NL aad pn VE Raine Caelb le AB Pa A Met Mohs Rd A-13 Wall.) 277, 323, 18 L. Ed. 356 (1866). That guarantee is closely related to the right to procedural due process. See Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 468-69 (7th Cir. 1988) (discussing the relationship between procedural due process rights and the prohibition on bills of attainder); see also Screws v. United States, 325 U.S. 91, 106, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945) (stating that “it is plain that basic to the concept of [*348] due process of law in a criminal case is a trial —a trial in a court of law”.) The right to procedural due process has been applied to corporations. [**19] See, e.g., Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 413-19, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984).5 Second, the cases in which the Court has refused to apply constitutional rights to corporations have uniformly involved competing state interests in regulating corporate conduct and investigating corporate wrongdoing, which depend on a high degree of transparency. Wilson v. United States, in which the Court held the Fifth Amendment privilege against self-incrimination inapplicable to corporations, rested its holding primarily on the “visitatorial power” that remains vested in the state after it grants a corporation its charter. See 221 U.S. at 382-84. Likewise, in United States v. Morton [**20] Salt Co., the Court justified its decision that corporations enjoy narrower rights to privacy by the state’s interest in investigating corporate wrongdoing: “law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.” 338 U.S. at 652. Unlike visitatorial powers which do not directly affect the bottom line, punishment necessarily affects shareholder 5 Although less closely analogous, the Sixth Amendment right to trial by jury in criminal cases has also been applied to corporations in this Circuit. See United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 663 (2d Cir. 1989). A-14 assets. Although New York unquestionably has an interest in investigating, regulating, and prosecuting the malfeasance of corporations within its borders, it has no interest in inflicting punishment for such malfeasance on the corporation’s shareholders through the legislative process. Indeed, in the instant circumstances, a “law-enforcing agency,” the PSC, has an existing administrative procedure to vindicate the interest in exploring utilities’ wrongdoing: the prudence review process. That process addresses the state’s interest in investigating and punishing utilities’ misfeasance, and to the extent it does not do so adequately, the legislature may enact generally applicable legislation modifying that process. Because punishment can frequently [**21] take the form of economic injury, a comparison with the Takings Clause of the Fifth Amendment is apt. The protection against targeted economic injury in the Takings Clause is fully applicable to corporations. See, e.g., United States v. 91.90 Acres of Land, 586 F.2d 79, 85-86 (8th Cir. 1978). For both the Takings Clause and the Bill of Attainder Clauses, if the protections did not extend to corporations, their protections would be significantly undermined for individuals. When a corporation suffers an economic injury, its shareholders suffer the same economic injury. In order to protect shareholders from the economic injuries prohibited by the Takings Clause and the Bill of Attainder Clauses, corporations must be allowed to raise the clauses directly. We have been unable to unearth any case in which a corporation has ultimately prevailed in challenging legislation as a bill of attainder — cases finding a bill of attainder targeting any party are extraordinarily rare. Nevertheless, bills of attainder historically have targeted corporations as well as natural persons. Con Ed cites several English statutes that imposed disabilities on English boroughs, hardly natural [**22] persons. See, e.g., 1 & 2 Geo. 4, c.47 (Eng. 1821). Moreover, one of the types of A-15 punishment most frequently imposed by bills of pains and penalties, punitive confiscation of private property, see Selective [*349] Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852, 82 L. Ed. 2d 632, 104 S. Ct. 3348 (1984), is one that may injure a corporation in the same way it injures an individual. Cf. Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 284-85, 106 L. Ed. 2d 219, 109 S. Ct. 2909 (1989) (O’Connor, J., concurring in part and dissenting in part) (arguing that Eighth Amendment Excessive Fines Clause applies to corporations, in part because a corporation, as an entity, may be subject to such penalties). : We therefore hold that corporations must be considered “individuals,” Nixon, 433 U.S. at 468, that may not be singled out for punishment under the Bill of Attainder Clause in Article I, Section 10. B. Retrospective Focus: Guilt Another indispe sable element of a bill of attainder is its retrospective focus: it defines past conduct as wrongdoing and then imposes punishment [**23] on that past conduct. See Nixon, 433 U.S. at 472-73; Cummings, 71 U.S. (4 Wall.) at 325. Such a bill attributes guilt to the party or parties singled out in the legislation. See Nixon, 433 U.S. at 468; De Veau v. Braisted, 363 U.S. 144, 160, 4 L. Ed. 2d 1109, 80 S. Ct. 1146 (1960) (“The distinguishing feature of a bill of attainder is the substitution of a legislative for a judicial determination of guilt.”); Cummings, 71 U.S. (4 Wall.) at 323 (in enacting a bill of attainder “the legislative body . .. assumes... . judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial”). Although on its face Chapter 190 does not speak in terms of guilt or innocence, we have no doubt that the legislature considered Con Ed guilty of wrongdoing in allowing the IP2 outage to occur. The primary evidence of A-16 this is the statute’s focus on Con Ed’s conduct related to a single, past incident, the IP2 outage, as the basis for the sanction it imposes. Chapter 190 makes explicit findings about the outage and concludes that “the Consolidated Edison Company failed to exercise [**24] reasonable care on behalf of the health, safety and economic interests of its customers.” 2000 N.Y. Laws 190 § 1. The legislature’s response is also limited to the IP2 incident, prohibiting Con Ed from “recovering from its ratepayers any costs associated with replacing the power from such facility.” 2000 N.Y. Laws 190 § 2. The statute thus imposes liability “determined by no previous law or fixed rule.” Lovett, 328 U.S. at 317 _ (internal quotation marks omitted). Although an established procedure existed for determining whether Con Ed had been “imprudent” in incurring the costs associated with the outage, the legislature bypassed it and, in a single stroke, found guilt on the facts of Con Ed’s case. The legislature, as the source of the PSC’s authority, retains the power to reclaim authority over rate-setting from the PSC. However, the decision to bypass the PSC reinforces our conclusion that the legislature’s decision was to find guilt and order punishment directly. The retrospective focus of Chapter 190 is essential to our determination that the statute is a bill of attainder. The power of legislatures to enact purely prospective changes to utility rates, even [**25] to the rates of a single utility, is considerably broader than their authority to act retrospectively. ll Punishment To invalidate legislation as a bill of attainder, the Bill of Attainder Clause “requires not merely ‘singling out’ but also punishment.” Plaut, 514 U.S. at 239 n.9; accord Nixon, 433 USS. at 471-72 & n. 33 [*350] (holding that “the Act’s specificity — the fact that it refers to appellant by name — A-17 does not automatically offend the Bill of Attainder Clause”). A legislature may legitimately create a “class of one ” for many purposes, see, e.g., Nixon, 433 U.S. at 472-73, but not for punishment. We therefore must ascertain whether Chapter 190 punishes Con Ed. Punishment of wrongdoing is, of course, a legitimate state interest reflected in the penal laws of the fifty states. Where a statute establishing a punishment declares and imposes that punishment on an identifiable party, however, the Bill of Attainder Clauses undermine the usual solicitude we have for such purposes. In such cases, we look beyond simply a rational relationship of the statute to a legitimate public purpose for “less burdensome alternatives [**26] by which [the] legislature . . . could have achieved its legitimate nonpunitive objectives.” Nixon, 433 U.S. at 482. Legislated punishment is not always easy to identify outside the traditional punishments of death or incarceration. Neither “the fact that harm is inflicted by governmental authority,” Lovett, 328 U.S. at 324 (Frankfurter, J., concurring), nor “the severity of [the] sanction is . . . determinative of its character as ‘punishment,’” Flemming v. Nestor, 363 U.S. 603, 616 n.9, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960). Indeed, as traditionally conceived, punishment implicates a variety of values that, in other contexts, bear no necessary relation to punishment. For example, a judicial order of compensation in a negligence action imposes “harm” on the defendant — he must pay the damage award — but that harm is merely compensatory for the plaintiff's injury, not punitive. Compensation may be part of a punishment, on the other hand, as where a criminal defendant is ordered to make restitution to his victim. Similarly, deterrence may be a legitimate, nonpunitive goal, such as deterrence of unreasonable conduct produced [**27] by a damages award for negligence — but it is also a core component of punishment. See, e.g., Brown, 381 U.S. at 458: Retribution A-18 may be one value that is limited to the arena of punishment, but it is not a necessary part of “punishment.” See Selective Serv. Sys., 468 U.S. at 851-52; Brown, 381 U.S. at 458 ( “It would be archaic to limit the definition of ‘punishment’ to ‘retribution.””). The Supreme Court articulated three factors to guide a court’s determination of whether a statute directed at a named or readily identifiable party is punitive: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a [legislative] intent to punish.’” Selective Serv. Sys., 468 U.S. at 852 (quoting Nixon, 433 U.S. at 473, 475-76, 478). Nixon makes it clear that a statute need not fit all three factors to be considered a bill of attainder; rather, those factors [**28] are the evidence that is weighed together in resolving a bill of attainder claim. Nixon, 433 U.S. at 473-78. The party challenging the statute has the burden of “establish[ing] that the legislature’s action constituted punishment and not merely the legitimate regulation of conduct.” Id. at 476 n.40. Unfortunately, because the Supreme Court's bill of attainder jurisprudence is limited, it provides us with little guidance for determining whether a statute is impermissibly punitive. [*351] 1. Traditional Punishments We look first to the “infamous history of bills of attainder” to determine whether Chapter 190 imposes the sorts of “deprivations and disabilities so disproportionately severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall within the proscription of [the Clause].” Id. at 473. Some types of legislatively imposed harm, in other words, are considered A-19 to be punitive per se. The classic example is death, but others include “imprisonment, banishment, . . . the punitive confiscation of property[, and prohibition of] designated individuals or groups from participation in specified [**29] employments or vocations.” Id. at 473-74; accord Selective Serv. Sys., 468 U.S. at 852. The only traditional punishment implicated here is punitive confiscation of property. On the one hand, Chapter 190 clearly deprived Con Ed of a property interest by prohibiting the ordinarily permitted pass-through of costs. All told, Chapter 190 deprives Con Ed of approximately $250 million that it would otherwise have been able to obtain from its customers. On the other, we are not certain thata “deprivation” is the same thing as a “confiscation,” and indeed, the Supreme Court has held that an adverse utility-rate decision is not “confiscatory” for the purposes of the Takings Clause unless it produces an overall unfair rate of return for the utility. See Duquesne Light Co. v. Barasch, 488 U.S. 299, 307, 310, 313-14, 102 L. Ed. 2d 646, 109 S. Ct. 609 (1989). A statute need not fit within the historical category of punishment to be considered such. Such a rule would render the Clauses unable to respond to attempts by contemporary legislatures to punish individuals in new and heretofore unforeseen ways. See Nixon, 433 U.S. at 475. [**30] We need not resolve this close question to conclude that Chapter 190 is nonetheless a bill of attainder. Accordingly, we do not decide whether Chapter 190 imposes a traditional attainder and turn instead to the next component of the test. 2. The “Functional” Test: Nonpunitive Statutory Goals The second component of the Supreme Court’s test is “functional,” looking to A-20 whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes. . . . Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers. Id.; see also Flemming, 363 U.S. at 615 (describing “inability to discern any alternative [nonpunitive] purpose which the statute could be thought to serve” as a basis for finding a statute to be punitive) (citing Trop v. Dulles, 356 U.S. 86, 97, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958) (plurality opinion)); Brown, 381 U.S. at 476 (White, J., dissenting) (“The imposition of a particularly harsh [**31] deprivation without any discernible legitimate legislative purpose has ... been characterized as penal.”). In doing so, we “inquire into the existence of less burdensome alternatives by which [the] legislature . . . could have achieved its legitimate nonpunitive objectives.” Nixon, 433 U.S. at 482. Try as we may, we can discern no wholly non-punitive purpose to justify the entire cost-pass-through prohibition in Chapter 190. To be sure, part of the statute’s cost-pass-through prohibition has an arguably [*352] non-punitive purpose. By preventing Con Ed from passing through the costs associated with the IP2 outage that it would not have incurred ordinarily, the legislature prevented Con Ed’s ratepayers from being forced to bear costs that the legislature viewed as negligently incurred. Con Ed would be forced to compensate its ratepayers for costs passed through prior to Chapter 190’s enactment and could not force ratepayers to bear any further pass-throughs due to the IP2 outage. This is not necessarily a punitive purpose. The legislature could legitimately conclude that, as between Con Ed, the party that caused the outage, and the ratepayers, parties having nothing whatsoever [**32] to do with the A-21 outage, Con Ed should bear the costs attributable to its negligence. The legislature could decide that it would be unfair to force ratepayers to absorb the costs of Con Ed’s error. If such a conclusion were reached by a court ina negligence action, for instance, no one would reasonably conclude that the court had “punished” Con Ed.° This is a distributional fairness rationale that has nothing inherently to do with punishment. Nevertheless, eliminating harm to innocent third parties is a purpose consistent with punishment. See Brown, 381 USS. at 458 (noting that “[a] number of English bills of attainder were enacted for preventive purposes”). However, because there is a clear non-punitive component to cost- allocation, we think that, if that were all that Chapter 190 did, [**33] it would be insufficient to justify a conclusion that the statute punishes Con Ed. Chapter 190 also functions to deter similar conduct by Con Ed and other public utilities in the future. By forcing Con Ed to absorb the costs of the outage, the statute encourages Con Ed and other utilities to be more diligent thereafter in avoiding similar outages. In this respect, Chapter 190 serves an economic-regulatory function. As a regulated monopoly, Con Ed does not face the same incentives to minimize costs as does an actor ina competitive market. Indeed, that fact is the basic justification of regulation of such monopolies: the state may act to encourage the monopoly to minimize costs as if it were faced with competition. See Paul A. Samuelson & William D. Nordhaus, Economics 520-21 (12th ed. 1985). Chapter 190 can be viewed, in part, as accomplishing that regulatory function, enhancing economic efficiency rather than 6 Indeed, in tort, a punitive damages award would be inappropriate for a finding of mere negligence. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 2, at 9-10 (5th ed. 1984). A-22 punishing Con Ed for wrongdoing. State regulation of utilities to promote economic efficiency is a longstanding and unquestionably legitimate goal of state legislation. See New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 365, 105 L. Ed. 2d 298, 109 S. Ct. 2506 (1989) [**34] (“[T]he regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States.’”) (quoting Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 461 U.S. 375, 377, 76 L. Ed. 2d 1, 103 S. Ct. 1905 (1983)) (alteration in original). Chapter 190 might also deter negligent conduct with an eye toward protecting public health; the legislative findings in Chapter 190 focus to a considerable extent on the “potential threats to public health and safety” from nuclear power plant accidents. 2000 N.Y. Laws 190 § 1. All other things being equal, this would be an ample justification for the deterrent function of Chapter 190. However, the field of public health and safety regulation [*353] of nuclear power generation has been occupied by Congress through the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq., and therefore any regulation in that area by the states is preempted. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’‘n, 461 U.S. 190, 206-07, 212, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983); Suffolk County v. Long Island Lighting Co., 728 F.2d 52, 59-60 (2d Cir. 1984). [**35] Consequently, we cannot consider public health and safety as a valid, non- punitive justification for Chapter 190. General and specific deterrence are also traditional justifications for punishment, however. See Selective Serv. Sys., 468 U.S. at 851-52 ( “Punishment is not limited solely to retribution for past events, but may involve deprivations inflicted to deter future misconduct.”); 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 1.5(a)(1), (4) (1986). If the entirety of the cost-pass-through prohibition served the economic-regulatory function described above, we might be willing to conclude that Chapter 190’s A-23 deterrent function was non-punitive. Our view of the “type and severity of burdens imposed,” Nixon, 433 U.S. at 475, by Chapter 190, however, leads us to a different conclusion. Our reading of the record and statements made by counsel at oral argument indicate that some indefinite but quite substantial proportion of the costs that Con Ed has sought to pass through to its ratepayers that are denied by Chapter 190 could have been passed through unchallenged if Con Ed had installed the new generators in the ordinary [**36] course of business at any time after they received them in 1985. To install new generators, Con Ed must take IP2 offline for an extended period of time. During this period, Con Ed must purchase power on the open market to cover the lost generating capacity at IP2. Further, Con Ed would have to pay the cost of labor and parts necessary to remove the old generators and install the new ones. These costs would be incurred whenever the generators are replaced, whether during scheduled maintenance prior to the generators’ failure or, as here, after that failure had occurred. Such costs are ordinary to the business and thus may be orcinarily passed through. Of course, there would be some differences in the costs incurred during a scheduled outage and those incurred during an accidental outage. The failure might cause damage to other facility components, which would need tobe repaired or replaced. There may be some differences in the cost of labor between a scheduled and unscheduled replacement: for instance, Con Ed might be required to pay more overtime to workers in the event of an unplanned outage. The cost of power would also likely differ between the time at which a scheduled outage [**37] could have occurred and the time at which the accidental outage occurred. Indeed, if Con Ed had replaced the generators during a planned outage, it presumably would have intentionally timed the outage to coincide with a period of reduced energy prices. The bulk of the labor and power- A-24 replacement costs under either scenario, however, appear to be the same.” It is undisputed that Con Ed would have been allowed to pass through to ratepayers the costs of covering power demand while replacing the generators during a scheduled outage. What, then, we must ask, other than punishment can justify forcing Con Ed to absorb those same costs after the accidental outage? Neither of the legitimate [*354] purposes set out above — prevention of harm to ratepayers and deterrence of inefficient, monopolistic conduct — can justify preventing Con Ed from passing these costs along [**38] to ratepayers. It does not protect ratepayers from, or compensate them for, new unjustified costs, because those costs would have been incurred even if Con Ed had acted as a prudent, model corporate citizen. Nor does it deter Con Ed or other utilities from incurring excess costs in the future: if Con Ed were faced with precisely the same situation in the future, it might be discouraged from delaying the installation of replacement generators, but in acting more quickly it would incur substantially the same costs that it now is being precluded from passing through to its ratepayers. There is no connection between these costs and the sort of lax monopolistic conduct that utility regulation would ordinarily seek to deter. Moreover, there are plainly “less burdensome alternatives by which [the] legislature ... could have achieved its legitimate nonpunitive objectives.” Nixon, 433 U.S. at 482. The legislature easily could have tailored Chapter 190 to exclude from the pass-through prohibition those substantial costs that would have been incurred absent misconduct on Con Ed’s part. For instance, it could have limited the pass-through prohibition to the incremental 7 Although the district court found this to be the case, it did not make findings about the exact amount of these costs. 117 F. Supp. 2d at 270. A-25 cost [**39] of energy beyond that prevailing when the replacement generators were purchased and any costs associated with the unplanned nature of the accidental outage such as overtime pay and damage to other facility components. Although we do not mean to hold that these costs need to have been identified with surgical precision, the legislature in this case made no attempt whatsoever to ensure that the costs imposed on Con Ed were proportional to the problems that the legislature could legitimately seek to ameliorate. Rather, by lumping all costs of the outage together and forcing Con Ed to absorb them, the legislature piled on a burden that was obviously disproportionate to the harm caused. Whether a government action is punishment varies depending on context. There may well be actions that would be considered punitive if taken against an individual, but not if taken against a corporation. Similarly, the government may have more flexibility to take actions that affect public utilities than it does when dealing with corporations in competitive markets. We need not explore this issue further to resolve this case, however, because Chapter 190 demonstrates a punitive intent even though it applies [**40] to a public utility corporation. 3. Indicia of Punitive Legislative Intent Finally, we look to see whether the legislative history evinces a legislative intent to punish. See Selective Serv. Sys., 468 U.S. at 852 (citing Nixon, 433 U.S. at 478); Brown, 381 U.S. at 476 (White, J., dissenting). The legislative record by itself is insufficient evidence for classifying a statute as a bill of attainder unless the record reflects overwhelmingly a clear legislative intent to punish. See Flemming, 363 U.S. at 617 (“[O]nly the clearést proof could suffice to establish the unconstitutionality of a statute on [the] ground [of legislative history.]”); see also, e.g., Lovett, 328 U.S. at 308-12 A-26 (recounting extensive evidence of punitive intent in the legislative record). Statements by a smattering of legislators “do not constitute [the required] unmistakable evidence of punitive intent.” Selective Serv. Sys., 468 U.S. at 856 n.15 (internal quotations omitted). Although the evidence of [*355] punitive intent in the legislative record in this case is insufficient on its own to [**41] justify a conclusion that Chapter 190 is punitive, the legislative history does contain some explicit evidence of punitive intent. That legislative history bolsters our prior conclusion that a significant portion of Chapter 190’s cost-pass-through prohibition is plainly punitive. Our reading of the legislative history indicates that certain legislators unquestionably intended to punish Con Ed: there are clear references by two senators to punishment and penalties. A sponsor of the legislation, Senator Velella, stated: “Con Edison has done a terrible thing here. . . . And Velella’s law is going to stop them and punish them.” A. 10096, N.Y. Senate Debate Transcript, at 3906-07 (2000) (statement of Sen. Velella); see also A. 10096, N.Y. Senate Debate Transcript, at 3912 (2000) (statement of Sen. Oppenheimer) (arguing that Con Ed “should certainly be penalized”). The statements of a few legislators are plainly not overwhelming evidence of penal intent, and if that were the only evidence that the statute is punitive, we would have no trouble holding that the statute is not a bill of attainder. But the stated intent of at least some legislators — most notably one of the floor managers [**42] of the legislation — to punish Con Ed reinforces our independent conclusion that a substantial part of the legislation cannot be justified by any legislative purpose but punishment. D. Severability A-27 Chapter 190 is not susceptible to severance of constitutional provisions from unconstitutional provisions because it contains only a single unitary provision. We are disinclined to rewrite the legislation to fashion a rule that the legislature never intended by attempting to identify and sever those costs Con Ed may constitutionally be prevented from passing through from the rest. In addition, because the punitive intent of some portions of Chapter 190 is clear, we conclude that all of Chapter 190 is a bill of attainder, absent clear evidence that some severable section was passed without punitive intent. Because no such evidence exists and the statute is a unitary provision that resists severability analysis, we invalidate Chapter 190 in its entirety. In finding Chapter 190 to be a bill of attainder, we are mindful of the infrequency with which this constitutional provision has been used to strike down legislation. That rarity is attributable to the extraordinary scarcity [**43] of legislation of the type presented in Chapter 190. When faced with a bill that is so exceptionally narrow in scope, manifestly retrospective in focus, and unavoidably punitive in operation, we cannot allow it to stand, notwithstanding the heavy presumption of legitimacy that is ordinarily accorded legislative decisions. In such circumstances we are reminded of Alexander Hamilton’s reflection on the function of judicial review in Federalist 78: [A] limited constitution [is] one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. The Federalist No. 78, at 466 (Hamilton) (Clinton Rossiter, ed., 1961) (italics removed). A-28 II. Scrivener’s Error in the Judgment Although we affirm, we must remand to the district court with direction [**44] to correct [*356] the obvious scrivener’s error on its judgment form, indicating that “the case is DISMISSED in its ENTIRETY, in favor of the Plaintiff and against the Defendants; and it is FURTHER ORDERED, that the plaintiff’s motion for a permanent injunction is GRANTED.” Cf. United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir.) (per curiam) (affirming but remanding to correct typographical error in judgment), cert. denied, 532 U.S. 1045 (2001). CONCLUSION For the foregoing reasons, the judgment of the district court is hereby affirmed. The case is remanded to the district court to conform the judgment to the substance of the district court’s disposition. The district court shall strike the words “the case is DISMISSED in its ENTIRETY, in favor of the Plaintiff...” and replace them with “JUDGMENT is GRANTED, in favor of the Plaintiff .. .” Costs are awarded to the Plaintiff-Appellee. APPENDIX B B-1 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Plaintiff, vs. GEORGE E. PATAKL, in his official capacity as Governor of the State of New York; MAUREEN O. HELMER, in her official capacity as Chairman of the New York Public Service Commission; and THOMAS J. DUNLEAVY, JAMES D. BENNETT, LEONARD WEISS and NEAL N. GALVIN in their official capacities as commissioners of the New York Public Service Commission, Defendants. SHELDON SILVER, Speaker of the New York State Assembly, and RICHARD L. BRODSKY, Member of the New York State Assembly, Intervenor-Defendants. 00-CV-1230 (LEK)(RWS) UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK 117 F. Supp. 2d 257; 2000 U.S. Dist. LEXIS 14985 October 10, 2000, Decided October 10, 2000, Filed DISPOSITION: [**1] Plaintiff’s motion for permanent injunction GRANTED; Plaintiff’s motion for preliminary injunction DENIED as moot. COUNSEL: For CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., plaintiff: Charles E. McTiernan, Jr., phv, Richard J. Giglio, Stephen Brewi, Scott Levinson, Consolidated Edison Company of New York, Inc., New York, NY. For GEORGE E. PATAKI, defendant: Edward M. Scher, AAG, Office of Attorney General, State of New York, Jeffrey B-2 P. Mans, State of New York, Office of the Attorney General, Litigation Bureau, Albany, NY. For MAUREEN O. HELMER, THOMAS J. DUNLEAVY, JAMES D. BENNETT, LEONARD A. WEISS, NEAL N. GALVIN, defendants: Kevin M. Lang, New York State Public Service Commission, Department of Public Service, Albany, NY. For RICHARD L. BRODSKY, SHELDON SILVER, intervenors-defendants: William F. Collins, New York State Assembly, Office of Counsel to the Majority, Albany, NY. JUDGES: Hon. Lawrence E. Kahn, United States District Judge. OPINION BY: Lawrence E. Kahn OPINION: [*260] MEMORANDUM - DECISION AND ORDER Presently before the Court is Plaintiff's motion for a preliminary and permanent [*261] injunction enjoining enforcement of Chapter 190 of the Laws of 2000.1 For the 1 In relevant part, the law states: By continuing to operate steam generators known to be defective, and thereby increasing the risk of a radioactive release and/or an expensive plant outage, the Consolidated Edison Company failed to exercise reasonable care ... Therefore it would not be in the public interest for the company to recover from ratepayers any costs resulting from the February 15, 2000 outage at the Indian Point 2 Nuclear Facility.... [T]he New York State public service commission B-3 reasons set forth below, Plaintiff's motion for a permanent injunction is GRANTED and its motion for a preliminary injunction is DENIED as moot. "21 I. Background A. Indian Point Nuclear Power Plant In 1972, Plaintiff purchased Model 44 steam generators from Westinghouse and installed them in its Indian Point 2 Nuclear Plant. In the mid to late 1970’s, Westinghouse discovered that the metal alloy used to make the steam generator tubes in Model 44 and Model 51 steam generators was susceptible to corrosion. Approximately 30 nuclear plants in the United States were using these two types of generators at the time of this discovery. By January 1, 1997, 13 plants had replaced the defective generators, 16 had not, and one plant had ceased operation. Plaintiff did not replace its generators because of its mistaken belief that they could safely remain in operation for many more years. On February 15, 2000, one of the tubes located in the Model 44 generators in the Indian Point Plant suffered a 2- inch tear that allowed radioactive fluid to leak through a tube wall and mix with water and steam in one of the steam generators. The Indian Point Plant was shut down pending review of the incident by the Nuclear Regulatory Commission. In the interim, Plaintiff has decided to replace the existing model 44 generators with replacement [**3] generators purchased in 1988. Until these replacement shall prohibit the Consolidated Edison Company from recovering from its ratepayers any costs associated with replacing the power from such facility ... [S]uch prohibition shall apply to the automatic adjustment mechanisms as well as base rates or any other recovery mechanism. B-4 generators are in place, Plaintiff will have to purchase power from other utilities to replace the power lost due to the Indian Point Plant's inability to operate. These replacement costs will cost Plaintiff between $165 million and $200 million. B. New York Regulatory Framework New York law allows the New York Public Service Commission (“PSC”) to set energy rates that Plaintiff charges to its retail customers. These rates are set pursuant to the terms of a five-year Settlement Agreement approved by the PSC in 1997. Under the Agreement’s terms, variations in costs Plaintiff incurs each month as it generates or purchases power can be passed onto its customers. The mechanism allowing this to occur is known as a Fuel Adjustment Clause (“FAC”) (now called a Monthly Adjustment Charge). PSC practice codified by state statute enables the PSC to retroactively adjust monthly utility rates charged to Plaintiff's customers (following a hearing) if the PSC determines that a utility like Plaintiff collected unreasonable charges under the FAC. When Plaintiff began reflecting the costs of Indian Point replacement power purchases [**4] in the FAC, the PSC commenced a proceeding to review the reasonableness of those charges. Had this proceeding determined that Plaintiff acted negligently in failing to replace the generators at Indian Point, the PSC would have ordered it to refund to its customers all costs associated with purchasing Indian Point replacement power. C. The Indian Point Law The New York State Assembly drafted Chapter 190 of the Laws of 2000 (“Indian Point Law” or “Chapter 190” or the “Bill”) [*262] following the PSC’s determination not to B-5 immediately suspend operation of Plaintiff’s use of the FAC. The Law, approved by both the Assembly and the New York State Senate and signed by Governor Pataki, nullified the already commenced PSC review process by directly ordering it to prohibit Plaintiff from recovering from its ratepayers any costs associated with replacing power from the February 15, 2000 outage at the Indian Point Plant. The basis for this law is the legislative finding that “[b]y continuing to operate steam generators known to be defective ... the Consolidated Edison Company failed to exercise reasonable care on behalf of the health, safety and economic interests of its customers.” Plaintiff [**5] has asked this Court for a preliminary and permanent injunction enjoining enforcement of the Indian Poi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0471%3A1. Public record. Not legal advice.