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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 94-3
- --------
- REYNOLDSVILLE CASKET CO., et al.,
- PETITIONERS v. CAROL L. HYDE
- on writ of certiorari to the supreme
- court of ohio
- [May 15, 1995]
-
- Justice Scalia, with whom Justice Thomas joins,
- concurring.
- I join the opinion of the Court, which assumes that
- the Ohio Supreme Court denied petitioner a -remedy- for
- the unconstitutionality of the tolling statute, and refutes
- the notion that -remedial discretion- would allow that
- unconstitutionality to be given no effect. That was the
- theory on which this case was presented and argued,
- and it is properly decided on the same basis.
- I write separately, however, to record my doubt that
- the case in fact presents any issue of remedies or of
- remedial discretion at all. A court does not-in the
- nature of things it can not-give a -remedy- for an
- unconstitutional statute, since an unconstitutional
- statute is not in itself a cognizable -wrong.- (If it were,
- every citizen would have standing to challenge every
- law.) In fact, what a court does with regard to an
- unconstitutional law is simply to ignore it. It decides
- the case -disregarding the [unconstitutional] law,-
- Marbury v. Madison, 1 Cranch 137, 178 (1803) (empha-
- sis added), because a law repugnant to the Constitution
- -is void, and is as no law,- Ex parte Siebold, 100 U. S.
- 371, 376 (1880). Thus, if a plaintiff seeks the return of
- money taken by the government in reliance on an
- unconstitutional tax law, the court ignores the tax law,
- finds the taking of the property therefore wrongful, and
- provides a remedy. Or if a plaintiff seeks to enjoin acts,
- harmful to him, about to be taken by a government
- officer under an unconstitutional regulatory statute, -the
- court enjoins, in effect, not the execution of the statute,
- but the acts of the official, the statute notwithstanding.-
- Massachusetts v. Mellon, 262 U. S. 447, 488-489 (1923)
- (emphasis added). In such cases, it makes sense to
- speak of -remedial discretion.-
- In the present case, however, ignoring the unconstitu-
- tional statute (which the Ohio courts were bound to do)
- did not result in the conclusion that some remedy must
- be provided (over which the courts might have some
- discretion). Rather, it resulted in the conclusion that
- the remedy which the plaintiff sought could not be
- provided. Respondent's suit was concededly untimely
- under the applicable state statute of limitations, Ohio
- Rev. Code Ann. 2305.10 (1991). See ante, at 1. When
- petitioner moved to dismiss the suit, respondent replied
- that the suit was timely by virtue of the tolling provi-
- sion, 2305.15(A). The tolling provision, however, was
- unconstitutional, see Bendix Autolite Corp. v. Midwesco
- Enterprises, Inc., 486 U. S. 888 (1988), and since it was
- unconstitutional it -was . . . as inoperative as if it had
- never been passed,- Chicago, I. & L. R. Co. v. Hackett,
- 228 U. S. 559, 566 (1913).
- In contemplation of the law, then, all that the trial
- court had before it was a concededly untimely suit, and
- (absent some valid Ohio law other than the tolling
- statute) it had no alternative but to dismiss. The
- Court's opinion gives reasons why the Ohio law applied
- by the Ohio Supreme Court in this case is in its
- substance invalid. I add that even the rubric under
- which that law was announced is invalid: it has nothing
- to do with remedial discretion.
-